NC Supreme Court’s newest justices take lead in challenging felon voting advocates

The two newest members of North Carolina’s Supreme Court took the lead challenging plaintiffs in a case Thursday dealing with felon voting rights. Questions from new Justices Trey Allen and Richard Dietz signaled their concerns about a lower court ruling that allowed thousands of felons to vote last November.

The state’s highest court will decide in the months ahead whether felons who have completed active prison sentences will be allowed to vote in future elections.

Supporters of felon voting have said the case could affect 56,000 potential voters.

The case could produce one of the first high-profile decisions from the newly configured state Supreme Court and its 5-2 Republican majority. Democrats had maintained a partisan advantage on the state’s highest court from 2017 through 2022.

Plaintiffs in Community Success Initiative v. Moore challenge a 1973 state law that sets rules for restoring felons’ voting rights. The N.C. Constitution bans felons from voting until their rights have been restored by law, a process known as re-enfranchisement.

Challengers say the law discriminates against black voters. A three-judge trial court panel split 2-1 in supporting the plaintiffs. That court then ruled that felons should be able to vote after completing active prison sentences.

“Is the legislature under our state constitution required to enact any kind of re-enfranchisement statute?” Dietz asked plaintiffs’ attorney Stanton Jones, cutting off Jones’ opening statement after less than one minute.

“The text of the constitutional provision refers to ‘the’ manner of rights restoration, I think signaling in the text that the design from the very beginning of the constitutional provision was that there would be rights-restoration legislation at all times,” Jones responded.

Several minutes later, Dietz challenged the plaintiffs’ argument that the courts could do more than strike down a bad law. Plaintiffs had secured a trial court ruling that allowed felons to vote last fall without any state law authorizing them to vote.

“It seems that our constitutional doctrine is pretty clear that in North Carolina we don’t try to get in the minds of legislators,” Dietz said. “We declare something unconstitutional and then tell that other branch of government, ‘You need to try again.’”

Jones responded that a ruling striking down the current felon re-enfranchisement law would “wreak havoc” on state elections. It would remove from the state’s voting rolls even those felons who had seen their rights restored under the law before the legal dispute started.

Dietz was not alone in raising concerns about a panel of trial judges opening the door to felon voting last year.

“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.

While Allen and Dietz, both Republicans, asked the most questions to attorneys representing felon voting advocates, the court’s two Democratic justices dominated questioning of the attorney representing state legislative leaders. Top lawmakers are defending the state’s existing law regarding felon voting.

“The key flaw in plaintiffs’ case here is that they have challenged North Carolina’s law providing for felon re-enfranchisement when the harms of which they complain all flow from North Carolina’s constitutional provision disenfranchising felons, which is not challenged,” said attorney Pete Patterson, representing Republican legislative leaders.

The challenged 1973 law made it easier for felons to regain voting rights, Patterson argued. “Something has gone awry when a signature achievement of the civil rights movement is invalidated on the basis of racial discrimination.”

“If the claim … is that this is a provision that is racially discriminatory against African-Americans in this state, why would the disparate impact be analyzed only as regards people with felony convictions?” asked Justice Anita Earls, a Democrat. “Why isn’t the trial court correct that the proper standard here is whether or not this provision discriminates against African-Americans in the state as a whole?”

Justice Michael Morgan, a Democrat, asked whether the felon re-enfranchisement law should face “strict scrutiny,” a particularly high burden for constitutional analysis.

“Doesn’t … the fact still remain that in looking at the totality of the circumstances as the impact that this statute has had in terms of re-enfranchisement, that strict scrutiny is employable here as the Superior Court did in terms of looking at the totality of the impact and what has occurred relative to the African-American community?” Morgan asked.

In addition to deciding whether any felon completing an active prison sentence should be eligible to vote again, the Supreme Court also could address a related issue. Attorney Daryl Atkinson argued against a provision requiring felons to pay all fees and penalties before having voting rights restored.

“It makes political rights and privileges dependent on the ownership of property,” Atkinson said.

“The theoretical problem I see with that is you could read Article VI to say felons don’t have a right to vote,” Allen said. “At the point where they have yet to pay, they don’t have a voting right. That’s one way to look at it.”

In Community Success Initiative v. Moore, the state Supreme Court could determine whether felons on probation, parole, and post-release supervision will remain eligible to vote in future N.C. elections.

Felons in those categories were allowed to register and vote in November’s general election thanks to lower-court rulings.

A split trial court voted 2-1 in March 2022 to throw out the 1973 state law that set conditions for felons to have voting rights restored after completing their sentences. That trial court panel would have opened voter registration up to felons immediately.

But a split 2-1 ruling from the N.C. Court of Appeals in April 2022 blocked felon voting in elections scheduled for May and July. The same ruling opened the door for felons to participate in the November general election.

The state Supreme Court agreed to hear the case. But in October the high court rejected felon voting advocates’ plea to hear oral arguments in the case before the end of 2022. Legislative leaders defending the felon voting law in court had objected to plaintiffs’ request for a “breakneck argument schedule.”

Court rulings in the case to date have generated party-line divisions. At the trial-court level, Democratic Judge Keith Gregory and unaffiliated Judge Lisa Bell voted to throw out the felon voting law, while Republican Judge John Dunlaw dissented.

At the Appeals Court, Democratic Judges John Arrowood and Allegra Collins voted for the order allowing felons to vote in November. Republican Judge Jefferson Griffin dissented.

The case has pitted left-of-center advocacy groups supporting felon voting against Republican legislative leaders defending the 1973 law. The General Assembly approved the law at a time when Democrats dominated both legislative chambers.

N.C. Gen. Stat. § 13-1 is the state law, last revised in 1973, that spells out the process for felons to regain voting rights.

“The North Carolina Constitution provides that ‘[n]o person adjudged guilty of a felony … shall be permitted to vote unless that person shall be first restored to the rights of citizenship in the manner prescribed by law,’” according to a September brief from legislative leaders. “Today, Section 13-1 is that re-enfranchisement law. And Plaintiffs are challenging only that law, not the constitutional provision that disenfranchises felons or the statute that criminalizes felon voting.”

In a Sept. 9 court filing, state lawmakers rebutted plaintiffs’ arguments in the case.

“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 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.”

There is no deadline for a state Supreme Court ruling in the case.

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