North Carolina’s Felony Disenfranchisement Law Heads to Court
On Feb. 2, the North Carolina Supreme Court will consider a case, Community Success Initiative v. Moore, that has direct implications on who can and cannot vote in the Tar Heel State. North Carolina currently disenfranchises individuals on felony probation, parole or post-release supervision, barring them from voting until they complete their full sentences; last March, a trial court held in a 2-1 decision that the law violates the North Carolina Constitution because it discriminates against Black voters and denies people the fundamental right to vote.
Today, at 9:30 a.m. EST, the state’s highest court will hear oral argument over the appeal of that decision — the outcome of which will determine the voting rights of nearly 60,000 North Carolinians.
The legacy of a racist 1877 policy reverberates in North Carolina today.
When Black men were granted the right to vote in 1870, Southern states, including North Carolina, adopted felony disenfranchisement laws not long before they enacted poll taxes, literacy tests and grandfather clauses, all tools designed to prevent Black voters from accessing the ballot. “The idea was to accomplish indirectly what the Fifteenth Amendment prohibited North Carolina from doing directly,” the trial court wrote about the provision’s history in a decision in this case. “North Carolina’s decision in 1877 to disenfranchise people with felony convictions even after they are released from incarceration and are living in the community has remained unchanged to this day.”
Today, in the age of mass incarceration, felony disenfranchisement remains a racial justice issue nationwide. In North Carolina, the trial court confirmed the jarring statistics: Although Black people comprise 21% of North Carolina’s voting-age population, they represent over 42% of those stripped of the right to vote under current statute. For Black men specifically, they constitute only 9.2% of the voting age population, but 36.6% of those disenfranchised. In contrast, white North Carolinians make up 72% of the voting-age population, but just 52% of those disenfranchised, further demonstrating that Black North Carolinians are disenfranchised at a much higher rate than their white counterparts.
Voting rights restoration for individuals on parole or post-release supervision is a matter of democracy and equal rights so that no one living among their community is without political power. “When people work, pay taxes, go to church and send their children to public schools in the same community where they cannot vote, they are left with no recourse to hold their elected officials accountable in ensuring the basic needs of their communities are met,” explained Daryl Atkinson and Caitlin Swain, co-directors of Forward Justice, a nonpartisan law center that brought this litigation against the law. “This lack of civic voice breeds cycles of poverty, overcriminalization and voicelessness, all while entrenching unaccountable power that doesn’t reflect the will of the people.”
There are political implications of rights restoration as well: The number of Black voters in North Carolina denied the right to vote because of felony supervision exceeds the vote margin in some county and state-level elections.
A lawsuit filed in 2019 asserts that the felony disenfranchisement policy violates multiple provisions of the North Carolina Constitution.
In November 2019, various civil rights and community groups as well as disenfranchised individuals with past felony convictions filed a lawsuit challenging North Carolina’s long-standing felony disenfranchisement law. Individuals with felony convictions cannot vote until the completion of their entire sentence, including probation, post-release supervision or community supervision. Additionally, at the time the lawsuit was filed, the only way an individual could be released from probation was to pay various legal and court fees, adding a financial barrier to re-enfranchisement. The lawsuit challenges the policy of disenfranchising individuals post-incarceration while they are back in their communities (probation, post-release supervision, etc.), not the overarching clause that disenfranchises people with felony convictions while physically in prison.
The complaint argues that this law violates numerous provisions of the state constitution. First, the Free Elections Clause requires that “[a]ll elections shall be free,” making North Carolina one of 30 states with similar provisions that go beyond protections in the U.S. Constitution. The complaint further alleges that the law violates the Equal Protection, Freedom of Speech and Freedom of Assembly Clauses of the North Carolina Constitution. Finally, “[b]ecause North Carolina’s felony disenfranchisement statute makes reenfranchisement ‘dependent’ on whether an individual has sufficient money to pay court costs, fees, and restitution, the statute violates the ban on property qualifications” in the state constitution.
By Daryl Atkinson and Caitlin Swain, the co-directors of Forward Justice.
Since these laws infringe upon constitutionally guaranteed rights, the pro-voting groups allege that the statute cannot stand unless it serves a compelling state interest and is narrowly tailored to that interest (a type of judicial review called strict scrutiny). “There is no legitimate, let alone compelling, government interest in continuing to disenfranchise people with past felony convictions who live in North Carolina communities and are subject to the laws and policies enacted by elected officials,” the groups argue.
What has happened so far?
The case has taken a winding journey through North Carolina state courts over the past three years. After being filed in November 2019, here’s what happened next:
- In September 2020 and again in August 2021, a trial court granted some temporary relief (known as a preliminary injunction) that restored voting rights to certain individuals. However, these rulings were later paused by higher courts. Crucially, the trial court agreed with the pro-voting groups’ claim that the “pay-to-vote” system — where North Carolinians had to pay all fees, fines or other debts related to their conviction before being released from probation and thereby regaining the right to vote — violated the Property Qualifications Clause of the North Carolina Constitution.
- In August 2021, the case went to trial where each side presented experts, witnesses and evidence to support their argument.
- On March 28, 2022, the trial court released its 2-1 ruling permanently striking down the felony disenfranchisement law. In its 71-page opinion, the court outlined North Carolina’s long history of racial discrimination against Black voters before concluding that the state’s felony disenfranchisement law has both the intent and effect of discriminating against Black voters in violation of the North Carolina Constitution. The court further noted that the law “interferes with the exercise of the fundamental right of voting and operates to disadvantage a suspect class.” The court emphatically explained that “the evidence establishes that such denial of the franchise causes serious harm to individuals and communities, and in fact undermines important state interests.” Due to these factors, the panel permanently blocked the state from enforcing the law, thereby allowing individuals currently on community supervision to register to vote. This is the decision on appeal before the North Carolina Supreme Court.
- Shortly after, the GOP legislative defendants appealed the trial court’s decision to the North Carolina Court of Appeals, which temporarily paused the trial court’s order on April 5, 2022. (The North Carolina State Board of Elections and its members, also named as defendants, did not join the appeal.) On July 26, 2022, however, the Court of Appeals’ order expired, meaning that individuals with felony convictions on community supervision who regained their voting rights by the trial court’s decision were eligible to vote in the November 2022 midterm elections.
- Before the appellate court decided the appeal, the North Carolina Supreme Court took over the case at the urging of the pro-voting groups. In briefing submitted to the state Supreme Court, the pro-voting groups argue that the trial court correctly concluded that denying the right to vote to individuals living in North Carolina communities after incarceration violates the North Carolina Constitution’s Equal Protection and Free Elections Clauses. In contrast, the Republican lawmakers defending the law argue that the opposing side’s “claims suffer from a fundamental defect: the statute they challenge…does not disenfranchise anyone.” Instead, they argue that it is the state constitution, not state law, that disenfranchises people convicted of felonies. The GOP legislators assert that nonetheless, the law is fully in line with the state constitution. They allege that the law does not violate the Equal Protection Clause and “does not violate the Free Elections Clause because convicted felons are not part of the voting population that clause exists to protect.” Furthermore, the Republicans argue that the fees and fines requirement does not violate the Property Qualifications Clause.
- Several outside groups filed amicus briefs in favor of the pro-voting groups, including the Sentencing Project, Lawyers’ Committee for Civil Rights Under Law, Southern Poverty Law Center, Cato Institute and more. Additionally, the Democratic attorneys general of 14 states and Washington, D.C. filed an amicus brief discussing why laws like North Carolina’s do not promote criminal justice goals and how the system is more burdensome and error prone than restoring voting rights upon release from incarceration.
On Thursday, Feb. 2, the North Carolina Supreme Court will hold oral argument and determine the ultimate outcome of the case.
During the 2022 midterms, the state Supreme Court flipped from a 4-3 Democratic majority to a 5-2 Republican majority. The court, with its new partisan composition, will decide after oral argument whether or not to strike down North Carolina’s felony disenfranchisement law for violating the state constitution.
If the lawsuit is successful at overturning the state’s felony disenfranchisement law, individuals would still lose voting rights for the duration of incarceration, but rights would be restored immediately upon release, impacting upwards of 56,000 prospective voters. Such a decision would align North Carolina’s policy with 22 other states.
Keep an eye on the case page and our News Alerts for future updates in this lawsuit.