WASHINGTON, D.C. — On Friday, April 28, the North Carolina Supreme Court issued a 5-2 opinion upholding the state’s felony disenfranchisement law and concluding that it does not violate the Equal Protection, Free Elections or Property Qualification clauses of the North Carolina Constitution. This opinion reversed a lower court’s decision that permanently blocked the law for unconstitutionally discriminating against Black voters and denying people the right to vote.
In November 2019, various civil rights and community groups as well as disenfranchised individuals filed this lawsuit challenging North Carolina’s long-standing policy of disenfranchising individuals with felony convictions until the completion of their entire sentence, including probation, post-release supervision or community supervision. Notably, since being released from probation requires individuals to pay various legal and court fees, re-enfranchisement is contingent on an individual’s ability to pay these costs, a concept sometimes nicknamed “pay-to-vote.” North Carolina originally enacted felony disenfranchisement in an 1877 constitutional amendment, with a few statutory updates since.
In March 2022, a trial court permanently struck down the felony disenfranchisement rule for having 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 immediate impact of that decision restored voting rights to over 56,000 North Carolinians. In even earlier rulings, the trial court struck down the requirement that all fees, fines or other debts related to convictions be paid before release from probation. The court found that this condition violated the Property Qualification Clause that states that “no property qualification shall affect the right to vote or hold office.”
The Republican legislative defendants appealed the trial court’s March 2022 ruling to the North Carolina Court of Appeals. However, before the appellate court decided the appeal, the North Carolina Supreme Court took over the case at the request of the pro-voting groups behind the lawsuit. The North Carolina Supreme Court flipped from Democratic to Republican control during the 2022 midterm elections and oral argument was then held before the court on Feb. 22, 2023.
In today’s opinion reversing the trial court’s decision, the Republican majority on the court held that North Carolina law does not discriminate against Black North Carolinians in violation of the state constitution’s Equal Protection Clause. The majority pointed to the updates made to the felony disenfranchisement statute in the early 1970s and determined that “the available evidence does not show that racial discrimination inspired the General Assembly” at that time and that the trial court failed to “apply the presumption of legislative good faith to the General Assembly’s 1971 enactment of a new section.” In contrast, the trial court had ruled that “[t]he legislature cannot purge through the mere passage of time an impermissibly racially discriminatory intent.” The North Carolina Supreme Court disagreed. The Supreme Court also rejected the trial court’s evidence of disparate racial impact of the law, adding that there was no reason to believe that disenfranchisement occurs for “African American felons at a rate that differs from the re-enfranchisement rate for white felons.” The court ignored the disparate impact of the criminal legal system in North Carolina that leads to felony convictions in the first place.
Additionally, the North Carolina Supreme Court found that the state’s “pay-to-vote” scheme does not violate either the Equal Protection or Property Qualifications clauses of the state constitution. The majority opinion ruled that the trial court erred when it applied strict scrutiny (the highest level of judicial review) to the statute that conditions voting eligibility upon repayment of court fees. The court instead relied on rational basis review and an 11th U.S. Circuit Court of Appeals ruling that found that “Florida’s felon re-enfranchisement laws were reasonably related to legitimate government interests.” The North Carolina Supreme Court suggested that maybe the North Carolina Legislature believed that “felons who pay their court costs, fines, or restitution are more likely than other felons to vote responsibly” or that the rule was a useful incentive. In regards to the Property Qualifications Clause, the court decided that because people with felony convictions “have no state constitutional right to vote,” they can’t be impacted by the imposition of property qualifications on the right to vote.
Finally, the court applied similar reasoning from the Property Clause to the state’s Free Elections Clause: “[I]t is not unconstitutional merely to deny the vote to individuals who have no legal right to vote.”
In a strong dissent, Justice Anita Earls, joined by Justice Michael Morgan, critiqued the majority’s opinion, noting that it will fail to stand the test of time for two main reasons: 1) “it seeks to justify the denial of a basic human right to citizens and thereby perpetuates a vestige of slavery” and 2) “[it] violates a basic tenant of appellate review by ignoring the facts as found by the trial court and substituting its own.”
This decision is a loss for North Carolina voters, especially individuals with past felony convictions. 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. Additionally, North Carolina remains one of only a few states that conditions voting rights on the ability to pay, in what many consider a “modern day poll tax.”