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Split three-judge panel rules felons can vote in N.C. once they leave prison

Mitch Kokai - Carolina Journal

RALEIGH — A three-judge Superior Court panel has ruled, 2-1, that felons who have completed their prison sentences in North Carolina must be permitted to vote. The ruling strikes down a 1973 state law that blocked voting by felons on probation, parole, or post-release supervision.

The decision could add more than 56,000 people to the state’s voting rolls. The ruling also marks the latest step in a multi-year legal fight that already has prompted appeals. The N.C. Court of Appeals blocked a related ruling from the same three-judge panel last year.

“N.C.G.S. § 13-1’s denial of the franchise to persons on felony probation, parole, or post-release supervision violates the North Carolina Constitution’s Equal Protection Clause and Free Elections Clause,” wrote Judges Lisa Bell and Keith Gregory. “Defendants, their agents, contractors, servants, employees, and attorneys, and any persons in active concert or participation with them, are hereby enjoined from preventing any person convicted of a felony from registering to vote or voting due to probation, parole, or post-release supervision.”

“Section 13-1’s denial of the franchise to people on felony supervision violates North Carolina’s Equal Protection Clause both because it discriminates against African Americans and because it denies all people on felony supervision the fundamental right to vote,” Bell and Gregory added. “Section 13-1’s denial of the franchise to people on felony supervision has the intent and effect of discriminating against African Americans, and unconstitutionally denies substantially equal voting power on the basis of race.”

The two-judge majority tied the disputed law from the 1970s to felony disenfranchisement rules targeting black voters in the 19th century. “The legislature cannot purge through the mere passage of time an impermissibly racially discriminatory intent,” Bell and Gregory wrote. “The legislature’s decision in the 1970s to preserve section 13-1’s denial of the franchise to people living in the community was itself independently motivated by racism.”

Lawmakers adopted the disputed law nearly 50 years ago to comply with a state constitutional provision barring felons from voting. Bell and Gregory ruled the N.C. Constitution did not “insulate” the law from a challenge.

“The Court recognizes that Article VI, § 2(3) of our Constitution grants the General Assembly the authority to restore citizen rights to persons convicted of felonies,” the majority judges wrote. “[H]owever, Article I, § 19 of our Constitution forbids the General Assembly from interfering with the right to vote on equal terms, and Article I, § 10 requires that elections be free so as to ascertain the will of the people. Accordingly, when the General Assembly prescribes by law the manner in which a convicted felon’s right to vote is restored, it must do so on equal terms and in a manner that ensures elections ascertain the will of the people.”

Dissenting Judge John Dunlaw reached an opposite conclusion.

“The Plaintiffs have offered, and the Court received, a myriad of testimony, statistical analysis, and evidence relating to the impact the provision of Article VI, Section 2, Part 3 of the North Carolina Constitution (felon disenfranchisement) has on the African American population,” Dunalw wrote. “The Plaintiffs have offered no testimony, statistical analysis or evidence relating to the impact, if any, N.C.G.S. § 13-1 has on the African American population or any other suspect class.”

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“Establishing a restoration process that requires convicted felons to complete their terms of imprisonment, probation, parole, or post-release supervision before regaining their citizenship rights, including the right to vote, is a valid and legitimate governmental interest,” he added.

“The Free Elections Clause of the North Carolina Constitution mandates that elections in North Carolina faithfully ascertain the will of the people,” Dunlaw wrote. “The people whose will is to be faithfully ascertained are the persons who are lawfully permitted to vote in North Carolina elections. Because convicted felons, who have not had their citizenship rights restored, are not lawfully permitted to vote in North Carolina elections, the Free Elections Clause has no application to those persons.”

The same three-judge panel has been addressing this case since the 2020 election cycle. That year, the judges ruled that felons should be permitted to vote if they had completed all elements of their sentences except payment of penalties.

In August 2021 the judges split 2-1 in deciding to extend the vote to all post-release felons. They announced the decision but issued no written order or opinion. They explained that they wanted to issue a ruling in time for elections officials to allow affected felons to participate in that year’s fall elections.

Attorney General Josh Stein declined to appeal the ruling, so lawmakers “fired” him from the case. With new private attorneys, legislators convinced the N.C. Court of Appeals to block the trial court ruling.

The case, titled Community Success Initiative v. Moore, still sits in the Appeals Court. In a March 9 filing, legislative defendants asked appellate judges to delay further proceedings while waiting for the trial court’s final decision. The motion predicted the trial court ruling would “likely moot or at least alter” the issues to be addressed in the appeal.

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