State elections board, DAs object to expedited federal felon voting case

The North Carolina State Board of Elections and local district attorneys have filed formal objections to speeding up a federal felon voting lawsuit. A judge will decide soon whether to hold a hearing requested by felon voting advocates.

US District Judge Loretta Biggs set Thursday as the deadline for the state elections board and DAs to respond to the request.

“The history and procedural status of this case indicate that there is no reason to expedite Plaintiffs’ motion for summary judgment,” wrote attorneys from the NC Department of Justice. “Plaintiffs’ only reason for seeking this late-breaking request is because their claims are likely to become moot after an amendment to N.C.G.S. § 163-275(5) — the law challenged in this action — is enacted.”

“Plaintiffs’ desire to obtain a rushed final judgment on the merits before their claims become moot is not sufficient cause to expedite summary judgment,” according to Thursday’s court filing. “This is particularly true here, where expediting summary judgment could change an election law during an ongoing election.”

State lawyers reminded Biggs that federal courts denied a preliminary injunction in the same lawsuit in 2020. “Plaintiffs’ current request is no more urgent than their motion for preliminary injunction three years ago,” according to the court filing. “Moreover, in the three years since this Court denied the preliminary injunction motion, Plaintiffs have exhibited little sense of urgency in this litigation.”

“Plaintiffs’ own theory of the case states that the challenged law has existed and been enforced as part of the election law scheme of North Carolina for 150 years,” state lawyers wrote. “Yet, they now think it would cause less confusion to overturn that law in the middle of an election. This argument defies logic and is contrary to well-established principles of law governing considerations of election-law cases in federal court, as recognized by the Supreme Court of the United States.”

The document warned Biggs that municipal elections are taking place now, with early voting underway in some parts of the state. “Election day for municipal primaries in multiple counties will take place in less than one week, on Tuesday, September 12, 2023.”

Biggs issued an order Friday in the case titled North Carolina A. Philip Randolph Institute v. State Board of Elections.

“[T]he Defendants shall have until September 7, 2023, to file a response, if any, to Plaintiffs’ Motion to Expedite Consideration of Plaintiffs’ Motion for Summary Judgment and Request for Permanent Injunction and to set a Hearing Before the District Court,” Biggs wrote.

That order arrived one day after felon voting advocates filed a motion seeking expedited action.

“Good cause exits for this request because Plaintiffs’ motion for summary judgment concerns the validity of a state election law, N.C.G.S. § 163-275(5) (the ‘Strict Liability Voting Law’ or the ‘Law’), and its enforceability in connection with the upcoming municipal elections this Fall,” wrote lawyers for the plaintiffs, the North Carolina A. Philip Randolph Institute and Action NC.

Both groups are pushing for felons to be able to vote in NC elections after they have completed active prison sentences. Voters in that category were able to register and vote in November 2022. An April ruling from the state Supreme Court ended felon voting. Under current law, no felon can cast a ballot in an election in North Carolina unless he has completed his entire sentence. That includes probation, parole, and post-release supervision.

The motion warned of “significant risks of voter confusion.” Plaintiffs asked to bypass a magistrate judge and hold a hearing instead before Biggs.

Lawyers from state Attorney General Josh Stein’s Department of Justice represent both the State Board of Elections and local DAs in the case. They filed paperwork on July 31 rejecting felon voting advocates’ motion for summary judgment.

“The North Carolina Constitution forbids a person convicted of a felony from voting ‘unless that person shall be first restored to the rights of citizenship in the manner prescribed by law,’” wrote Justice Department lawyers.

Their court filing referenced Article VI, Section 2(3) of the state constitution.

“To give effect to and enforce this constitutional provision, N.C.G.S. § 163-275(5) makes it a felony ‘[f]or any person convicted of a crime which excludes the person from the right of suffrage, to vote at any primary or election without having been restored to the right of citizenship in due course and by the method provided by law,’” state lawyers explained.

“Plaintiffs assert a facial challenge to the constitutionality of subsection 163-275(5), contending that it is void for vagueness in violation of the Due Process Clause of the Fourteenth Amendment, and was enacted in 1877, and reenacted in 1899, with racially discriminatory intent in violation of the Equal Protection Clause of the Fourteenth Amendment. Both counts fail,” state Justice Department lawyers argued.

“First, while it is undisputed that the predecessor to subsection 163-275(5) was initially enacted in the late 1800s with discriminatory intent, the scope of persons affected by the law was substantively altered with the new Constitution in 1971, creating a break from the history on which Plaintiffs rely,” according to the state’s court filing. “Plaintiffs have not presented any evidence that this later legislative and popular action of adopting a new constitution in 1971 was motivated by racial discrimination.”

“Second, subsection 163-275(5) provides an easily understood notice that once one loses the right to vote due to felony conviction, they cannot vote again until those rights are restored,” Justice Department lawyers wrote. “The fact that subsection 163-275(5) requires reference to the statute governing rights restoration does not make the law so standardless that it is unconstitutionally vague.”

Defendants’ lawyers reminded the court that a trial in the case is scheduled for April 2024.

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

The Southern Coalition for Social Justice filed a motion on June 15 in US District Court. The group is seeking summary judgment on behalf of plaintiffs who started a legal challenge in September 2020. The lawsuit asks a federal judge to “invalidate” the felon re-enfranchisement law.

“The Court should invalidate North Carolina General Statute § 163-275(5) because it violates both the Equal Protection and Due Process Clauses of the Fourteenth Amendment,” according to the motion.

Opponents label the felon voting restriction the “Strict Liability Voting Law.” It “imposes strict-liability, felony-level criminal penalties on citizens who vote while on parole, probation, or post-release supervision for a felony conviction — even if they mistakenly believe they are eligible to vote. The Law cannot withstand Fourteenth Amendment scrutiny,” the brief added.

The motion for summary judgment focuses on an 1877 version of the felon voting law. It offers a passing reference to amendments as recently as 1973 that have made it easier for felons to regain voting rights after completing their sentences. The document references a state constitutional provision related to felon voting restrictions. Yet the suit does not target the state constitution.

Federal court action follows felon voting advocates’ April 28 setback in North Carolina’s highest court.

Plaintiffs in a separate case called Community Success Initiative v. Moore had challenged felon voting restrictions 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 last November’s election.

The state’s highest court overruled those lower courts.

“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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