State elections board, DAs push back against federal felon voting lawsuit

The NC State Board of Elections and local district attorneys urge a federal judge to reject a lawsuit challenging state restrictions on felon voting.

Critics of North Carolina’s felon voting rules asked in June for a federal court to grant them summary judgment in the case.

The federal court action is taking place after the NC Supreme Court upheld state felon voting rules in April.

“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 lawyers from the N.C. Department of Justice. They represent the state elections board and the DA defendants.

The court filing Monday 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 new 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.”

State lawyers advised the federal court in June that an election reform bill in this year’s legislative session could affect the felon voting case.

Senators approved Senate Bill 747 on June 21 with a party-line 28-19 vote. Republicans supported the bill. Democrats opposed it. The bill now sits in a state House elections committee.

That bill features multiple proposed changes to state election law, including a requirement that all absentee ballots arrive at local elections offices by Election Day to count as valid votes. People who use same-day voter registration would be required to cast a provisional ballot.

Another requirement could have a direct impact on the federal suit, titled N.C. A. Philip Randolph Institute v. N.C. State Board of Elections.

One paragraph in the 24-page bill changes the language of N.C. Gen. Stat. § 163-275(5). That statute creates a Class I felony “For 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.”

Under provisions of SB 747, the updated law would make it a crime “For any person convicted of a crime which excludes the person from the right of suffrage, to vote in any primary or election knowing the right of citizenship has not been restored in due course and by the method provided by law.”

The major change is that the voting felon would have to know that his voting rights had not been restored to be charged with a crime.

“[T]he enactment of SB747 will fundamentally alter the course of this case,” according to lawyers representing the State Board of Elections and local district attorneys. “At maximum, it could moot the case entirely, and at minimum, it would fundamentally change the analysis and arguments for each claim.”

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 June 15 in U.S. 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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