Dating back to the 1800s, felony disenfranchisement in this country is nothing new. Here in North Carolina, the practice has been used for the express purpose of limiting Black political power. The history of North Carolina’s felony disenfranchisement scheme is particularly egregious because its initial inception spawned from a coordinated campaign of convicting Black men of trivial offenses, created by the Black Codes (or “Jim Crow” laws), and publicly whipping them as punishment to strip them of their voting rights before the passage of the 15th Amendment.
Later, in the 1970s, in the wake of the Civil Rights Movement, the state’s three Black legislators attempted to pass a law that would restore voting rights immediately upon release from prison. At the behest of the NAACP, these legislators sought to reverse the state’s 1973 disenfranchisement law, which bars individuals with felony convictions serving probation, parole or supervision from voting, after witnessing the negative impact that this law had on the Black community. Their attempts were blocked by fellow legislators and, 30 years later, the practice of felony disenfranchisement still plagues entire communities by denying thousands of people their fundamental right to have a say in how they are governed.
When people can’t vote for their legislators, district attorneys, judges and sheriffs — those who are responsible for creating the laws, policies and systems that keep these potential voters disproportionately ensnared in the criminal legal system — a cycle of oppression emerges. 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, from housing to schools to jobs. 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.
Felony disenfranchisement also ties into a much larger scheme of voter suppression, one that disproportionately impacts Black and brown people. In a March decision in Community Success Initiative v. Moore, a North Carolina trial court found that, although Black people constitute 21% of the voting age population in North Carolina, they represent 42% of the people disenfranchised under the current law. For Black men, the picture is even more bleak, comprising only 9.2% of the voting age population, while representing 36.6% of those disenfranchised.
As attorneys and as co-directors of Forward Justice — a nonpartisan law, policy and strategy center dedicated to advancing racial, social and economic justice in the southern United States — we couldn’t sit back and watch this decades-old law continue to disenfranchise thousands of North Carolinians. At Forward Justice, our approach to fighting disenfranchisement has been three-fold: bringing litigation to change laws and policies, supporting community organizing to build power and shifting the narrative and values around our salient issues. We know that these types of organized movements bring about change, which is why in 2019, alongside members of the NC Second Chance Alliance, we sued the state in an effort to fight our bleak reality and reinstate voting rights for 56,000 North Carolinians currently living under felony community supervision. As a result of this lawsuit, a trial court issued a historic order restoring voting rights to those who remain on probation or parole solely due to their inability to pay for fines and fees.
But we didn’t stop there. In August of 2021, we went to trial and the court temporarily restored voting rights to 56,000 people — the largest expansion of voting rights in North Carolina since the Civil Rights Act of 1964. The defendants in the North Carolina Legislature immediately requested a stay (meaning, a pause on the ruling), continuing their relentless attempts to block access to the ballot. And when the trial court solidified our victory for voting rights by issuing the final order and judgment in March of this year, the defendants yet again requested a stay, demonstrating just how dedicated they are to disenfranchisement.
Last month, the North Carolina Court of Appeals, the state’s mid-level court, did pause the trial court’s ruling, but only through the upcoming primary elections in May and June. The case is now before the North Carolina Supreme Court, the state’s highest court, where we’ll keep fighting to unlock the votes of thousands of community members who have been directly impacted by the criminal legal system.
As we wait for the state Supreme Court’s decision in this case, the impact of the current disenfranchisement and its connection to other voter suppression tactics is striking and clear. In 2016, a federal appeals court in the landmark North Carolina NAACP v. McCrory case found that the North Carolina Legislature engaged in intentional racial discrimination by passing an omnibus voter suppression law that targeted Black voters “with almost surgical precision.” In an unrelenting attack on the right to vote, the illegally-gerrymandered Legislature then worked to create a constitutional amendment that requires photo voter ID at the polls, creating yet another barrier for Black, brown, poor and elderly voters. At Forward Justice, we have since challenged that amendment in North Carolina NAACP v. Moore.
The voting restrictions placed on those under felony supervision also have sweeping impacts on the outcomes of important elections, which are often decided by close margins. For example, North Carolina’s 2016 gubernatorial election was decided by a margin of 10,263 votes, well below the 56,000 people who are disenfranchised statewide under the current law. According to the trial court in Wake County, there were 16 county-level elections in 2018 where the margin of victory was less than the number of disenfranchised individuals in each county.
While our lawsuit and organizing efforts are inroads to change and progress in our state, we must also have federal voting rights protections to stop the continuous, systematic attempts to restrict voting rights sweeping the country.
Used as a tool to silence communities and strip them of their power, felony disenfranchisement has no place in our democracy. We must fight to expand the “We” in “We the people” instead of allowing it to be slowly eroded away by passing federal legislation that bans felony disenfranchisement and renews preclearance so that power-hungry legislatures seeking to maintain the racist status quo can no longer silence entire communities. With primary elections underway in North Carolina, we remind people of the importance and power of voting in all elections — from primary to local to state to midterm elections. The judges and legislators we elect play a pivotal role in ensuring that voting rights are protected, and our sheriffs and district attorneys are instrumental in determining who becomes entangled in this system in the first place. We must let elected officials know that our communities cannot, and will not, continue to be disenfranchised, ignored, neglected and fed into a system that chews them up and spits them out. We will continue to be relentless in our work to unlock the votes of thousands and protect existing voting rights to ensure that the voices of the oppressed are heard and that real change can be ushered into our communities.
Daryl Atkinson and Caitlin Swain are the co-directors of Forward Justice.