Newly Republican-majority NC Supreme Court hears case on post-prison voting rights

The state Supreme Court met Thursday to discuss a case on whether thousands of formerly incarcerated North Carolina residents serving a felony sentence can retain the right to vote.

The court was packed. About 50 people were not allowed entrance and viewed the arguments in the case in a nearby church, which was streaming it.

Arguments largely centered on whether the state law that delineates how people’s voting rights are restored is constitutional and whether it had discriminatory intent.

Up until last year, people who had finished their prison sentence but remained on probation or other supervision, estimated at over 50,000 by advocates, could not vote under state law. But recent court rulings temporarily granted them the right to vote.

The Supreme Court’s future ruling may provide insight into how the court will proceed for the next few years. In the November elections, the court flipped from a 4-3 Democratic majority to a 5-2 Republican majority.

Is right to vote ‘indisputable?’

The plaintiffs — the North Carolina NAACP, three local organizations and four North Carolinians affected by the prohibition on voting for a felony conviction — argued in a legal brief in August that the state law’s (N.C.G.S. Section 13-1) denial of the right to vote to formerly incarcerated residents violates the North Carolina Constitution’s Equal Protection Clause and Free Elections Clause.

They also argued that the state statute was born of a discriminatory history, with the intent to limit voting by Black residents.

The state constitution’s Equal Protection Clause states that “No person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin.” The Free Elections Clause says “All elections shall be free.”

The case — known as Community Success Initiative v. Moore — was initially filed in 2019 in Wake County Superior Court by a coalition of nonprofits against House Speaker Tim Moore, Senate leader Phil Berger, the State Board of Elections and others.

State officials defending the case, with representation from Peter Patterson from Cooper & Kirk PLLC, an influential Washington firm, spoke first on Thursday.

In a brief in September, defendants wrote that the statute for reenfranchising felons is the product of civil rights reformers of the 1970s, not any racial discrimination. They also argued that the state law has no disparate impact on African Americans.

“Something has gone wrong when a signature achievement of the civil rights movement is invalidated on the basis of racial discrimination,” Patterson said Thursday.

The challengers were represented by Daryl Atkinson, attorney and co-director for Forward Justice, and Stanton Jones, attorney at Arnold & Porter Kaye Scholer LLP.

“People convicted of felonies must pick up the cost of appointing counsel, court costs, fines, any supervision needs and restitution,” Atkinson said. “Failure to pay results in a multi-year extension of their disenfranchisement and their denial of the right to vote upwards to eight years.”

Republican justices parried this point, saying that it seemed Atkinson was assuming that the right to vote was indisputable when one could also look at Article VI of the state constitution, which further lays out who may vote.

Article VI says that “No person adjudged guilty of a felony against this State or the United States, or adjudged guilty of a felony in another state that also would be a felony if it had been committed in this State, shall be permitted to vote unless that person shall be first restored to the rights of citizenship in the manner prescribed by law.”

When should voting rights be restored?

In the original case filed in 2019 before the superior court, the plaintiffs argued that the disenfranchisement of formerly incarcerated voters was unconstitutional, that it disproportionately affected Black residents, and that voters should not have to wait to be eligible to vote but should have those rights restored after leaving prison or jail, as previously reported by The News & Observer.

Brittany Cheatham, communications manager for Forward Justice, one of the plaintiff organizations in the case, said in a written statement that the state constitution “guarantees people the right to vote, regardless of past conviction or financial status. Our hopes are that the court will uphold this important constitutional victory and protect the rights of thousands of people across the state.”

According to Forward Justice research, Black people constitute 21% of the voting-age population in North Carolina but represented 42% of the people disenfranchised while on probation, parole, or post-release supervision.

Moore told The N&O on Wednesday that the Supreme Court should “uphold the law that’s in place right now, that says when someone who is convicted of a felony, fully completes their sentence and fully completes their probationary period, then their rights are restored.”

“As I understand the case, this is allowing folks who are convicted felons and still serving their sentence to vote. I don’t think that’s appropriate. I think it should be one of those rights that you get restored once you’ve paid your debt to society,” Moore said.

The N.C. Court of Appeals allowed the decision by the superior court, also called a trial court, to take effect allowing a person serving a felony sentence to register to vote once out of prison even if they have not completed their sentence, including any period of probation, parole, or post-release supervision.

They were allowed to vote starting with the November elections.

The law’s history

The trial court ruling looked into the history of felon voting laws in the state.

The Fifteenth Amendment, ratified in 1870, extended voting rights to men of all races.

Before then, North Carolina did not have a disenfranchisement provision specific to felons, but rather excluded “infamous” persons from voting, the trial court wrote.

In the 1870s, the North Carolina General Assembly barred all people with felony convictions from voting unless their rights were restored “in the manner prescribed by law,” the trial court wrote.

Between 1897 and 1970, the state legislature made small changes to the procedure for restoration of voting rights and recodified the law restricting voting into N.C.G.S. Section 13-1. In 1971, African American legislators proposed a bill, which passed, amending Section 13-1 to “automatically” restore citizenship rights to anyone convicted of a felony “upon the full completion of his sentence,” the trial court wrote.

“The trial court, following the full trial, found that this law was intentionally designed by the legislature to discriminate against African Americans and to suppress the political power of the African American community in the state,” Jones told The N&O. “The trial court found that that’s exactly what the law is doing today by a wide margin in counties across the entire state,” he said.

“We’ve asked the North Carolina Supreme Court to affirm the finding that intentional racial discrimination violates the constitution,” he said.

Republican-majority NC Supreme Court

The appellate court ruling, which allowed the trial court ruling to take effect with the November elections, was not permanent. Rather than wait for the appeals court to issue a more permanent ruling on the case, the then-Democratic-majority North Carolina Supreme Court, last year, fast-tracked the case and took over.

The court had fast-tracked a slew of cases in advance of any power shift, as previously reported by The N&O.

In late September, plaintiffs filed a motion for the case to be heard “as soon as feasible,” but the Supreme Court delayed the hearing until this year.

This week was the first time the newly minted Republican majority Supreme Court heard arguments.

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