Elections board, DAs urge federal Appeals Court to uphold NC felon voting crime

The North Carolina State Board of Elections and elected district attorneys across the state are urging a federal Appeals Court to reverse a ruling throwing out the state’s crime for felon voting. A federal judge issued a decision in April supporting plaintiffs challenging the law.

The law created a Class I felony for people who vote in North Carolina’s elections without having their rights restored by law. A 2023 amendment added a condition that the felon could be charged only if he cast a ballot while knowing that his rights had not been restored.

“In this lawsuit, Plaintiffs, two organizations that seek to increase voter participation of North Carolina’s Black and low-income communities, challenged the constitutionality of section 163-275(5) of the North Carolina General Statutes. This statute makes it a crime forpersons who have been convicted of a felony to vote before their voting rights have been restored,” state Justice Department lawyers wrote in a filing Thursday at the 4th US Circuit Court of Appeals. “Plaintiffs argued that this statute has impeded their mission of increasing voter participation by requiring them to spend time educating volunteers and prospective voters about the statute’s requirements.”

“On the merits, Plaintiffs argued that the statute denies voters equal protection because it was enacted with discriminatory animus against Black voters. In asserting this claim, Plaintiffs relied on the fact that the statute allowed for persons to be convicted even when they voted under a mistaken belief that their voting rights had already been restored,” the court fling continued.

“Plaintiffs also separately argued that the statute denies voters due process because it is unconstitutionally vague,” Justice Department lawyers wrote. “In support of this claim, Plaintiffs argued that some district attorneys have prosecuted persons who allegedly voted under the mistaken impression that they were allowed to do so, while others have declined to prosecute such voters. Plaintiffs claimed that these divergent decisions show that the statute lacks adequate guiding standards and is therefore vague.”

“While Plaintiffs’ claims against the statute were pending, however, the North Carolina General Assembly amended the statute with respect to future elections,” the court fling explained. “Under the amended statute, persons now can only be prosecuted if they knowingly vote illegally — i.e., by voting in an election knowing their right of citizenship has not been restored.”

The changes included in Senate Bill 747 in 2023 did not convince US District Judge Loretta Biggs to uphold the law this spring.

“Despite this new enactment, the district court below nonetheless granted Plaintiffs summary judgment on their claims with respect to the old pre-amendment version of the statute. The court also enjoined enforcement of the pre-amendment version of the statute with respect to theoretical prosecutions concerning past elections,” Justice Department lawyers wrote.

“These rulings were erroneous. As an initial matter, the district court erred by ruling on Plaintiffs’ claims at all because those claims have become moot,” the court filing added. “Given the amendments that have been made to the statute, Plaintiffs lost the concrete interest they once had in this lawsuit’s outcome.”

“Specifically, Plaintiffs’ only interest in this lawsuit is in educating voters on their rights for future elections. But the portions of the statute that Plaintiffs challenge no longer apply to future elections,” Justice Department lawyers explained. “That statute therefore can no longer interfere with their efforts to increase participation in those elections.”

State lawyers argued that claims from plaintiffs North Carolina A. Philip Randolph Institute and Action NC also “fail on the merits.” The law does not deny equal protection of the laws or due process. “[T]he prosecutorial decisions that Plaintiffs relied on to support their vagueness claim reflect routine exercises of prosecutorial discretion, not the application of a standardless statute that is unconstitutionally vague,” Justice Department lawyers wrote.

Biggs’ April 22 order against the felon voting crime said the law “was enacted with discriminatory intent, has not been cleansed of its discriminatory taint, and continues to disproportionately impact Black voters.”

The ruling had no impact on a separate law — NCGS § 13-1 — that allows felons to vote only after they complete their full sentences. The law blocks felons from voting if they have completed active prison time but remain on parole, probation, or post-release supervision. The North Carolina Constitution bans all felons from voting unless their rights have been restored by state law.

“The Court holds that the Challenged Statute violates both the Equal Protection and Due Process Clauses of the Fourteenth Amendment,” Biggs wrote. “Therefore, Plaintiffs’ Motion for Summary Judgment will be granted.”

“Accordingly, Plaintiffs’ requested relief that this Court declare the Challenged Statute unconstitutional and enjoin the enforcement of that Statute are appropriate remedies under the circumstances of this case,” the judge added. “As articulated by the Fourth Circuit, ‘the proper remedy for a legal provision enacted with discriminatory intent,’ as is the Challenged Statute, ‘is invalidation.’ And since the North Carolina General Assembly failed to repeal the Challenged Statute, the Court will permanently enjoin further enforcement of that Statute.”

Biggs’ order focused on the plaintiffs’ complaint that the felon voting crime “was originally enacted in 1877 with the intent to exclude Black people from voting and continues to have a disproportionate impact on Black people.”

“Defendants, in an extraordinary and telling concession, ‘do not contest that the historical background from the original enactments of 1877 and 1899 are indefensible. Defendants further do not contest that the law currently impacts African-Americans at a higher rate than it does other citizens,’” Biggs wrote.

“However, Defendants argue that, by adopting a new constitution in 1971, the North Carolina Legislature cleansed the Challenged Statute of its discriminatory taint. … [T]heir argument fails,” Biggs ruled.

The judge also attacked the law’s potential for arbitrary enforcement. “Record evidence demonstrating this inconsistency in District Attorneys’ interpretation and enforcement of the Challenged Statute — that some believed that the Challenged Statute included a requirement of intent while others did not — compels the conclusion that the Challenged Statute permits a ‘standardless sweep’ that allows prosecutors to ‘pursue their personal predilections’ under the Challenged Statute,” Biggs wrote. “The Court now reaches that conclusion.”

The plaintiff groups filed suit in September 2020. They argued that the felon voting law forced them to spend time and money advising felons about their rights. The plaintiffs are working with lawyers from the Southern Coalition for Social Justice.

Critics of North Carolina’s felon voting restrictions turned their attention back to federal court last year, less than two months after the NC Supreme Court rejected a challenge of the state’s felon voting restrictions in April 2023.

Plaintiffs in a separate case called Community Success Initiative v. Moore had challenged felon voting restrictions — § 13-1 — through the state court system. Activists hoped to open the door to voting for as many as 56,000 felons who had completed active prison time but had not completed their full sentences.

A split 2-1 trial court ruling, upheld by a split 2-1 state Appeals Court decision, allowed felons to register and vote in the November 2022 election.

The state’s highest court overruled lower courts five months later.

“Our state constitution ties voting rights to the obligation that all citizens have to refrain from criminal misconduct,” wrote Justice Trey Allen for the 5-2 majority. “Specifically, it denies individuals with felony convictions the right to vote unless their citizenship rights are restored ‘in the manner prescribed by law.’ No party to this litigation disputes the validity of Article VI, Section 2(3) of the North Carolina Constitution.”

“This case is therefore not about whether disenfranchisement should be a consequence
of a felony conviction,” Allen added. “The state constitution says that it must be, and we are bound by that mandate.”

Plaintiffs instead challenged laws approved in the 1970s to set the rules for felons to regain voting rights. “The evidence does not prove that legislators intended their reforms … in the early 1970s to disadvantage African Americans, nor does it substantiate plaintiffs’ other constitutional claims,” Allen wrote. “It is not unconstitutional to insist that felons pay their debt to society as a condition of participating in the electoral process. We therefore reverse the trial court’s final order and judgment.”

“The General Assembly did not engage in racial discrimination or otherwise violate the North Carolina Constitution by requiring individuals with felony convictions to complete their sentences — including probation, parole, or post-release supervision — before they regain the right to vote,” Allen added.

Justice Anita Earls wrote for the dissenting Democratic justices. “The majority’s decision in this case will one day be repudiated on two grounds,” she wrote. “First, because it seeks to justify the denial of a basic human right to citizens and thereby perpetuates a vestige of slavery, and second, because the majority violates a basic tenant of appellate review by ignoring the facts as found by the trial court and substituting its own.”

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