State Appeals Federal Judge’s Ruling Against Felon Voting Crime

By Carolina Journal Staff

• The state is appealing a federal judge’s April order striking down North Carolina’s law criminalizing voting by felons.
• US District Judge Loretta Biggs ruled that the law “was enacted with discriminatory intent” and has a disproportionate impact on black voters.
• The ruling did not impact a separate state law that blocks felons from registering to vote until they have completed their full sentences. The state Supreme Court upheld that law in April 2023.

State government lawyers are appealing a federal judge’s recent decision striking down North Carolina’s law criminalizing felon voting. Felons who cast ballots in this state’s elections could have faced new felony charges before the judge’s ruling.

Lawyers from state Attorney General Josh Stein’s Justice Department filed a notice of appeal Thursday.

US District Judge Loretta Biggs issued an April 22 order against the state’s felon voting crime. The law “was enacted with discriminatory intent, has not been cleansed of its discriminatory taint, and continues to disproportionately impact Black voters,” Biggs wrote.

The challenged law — NCGS § 163-275(5) — created a Class I felony for people who vote in North Carolina’s elections without having their rights restored by law.

Biggs’ ruling had no impact on a separate law — NCGS § 13-1 — that allows felons to vote only after they complete their full sentences. The law blocks felons from voting if they have completed active prison time but remain on parole, probation, or post-release supervision. The North Carolina Constitution bans all felons from voting unless their rights have been restored by state law.

“The Court holds that the Challenged Statute violates both the Equal Protection and Due Process Clauses of the Fourteenth Amendment,” Biggs wrote. “Therefore, Plaintiffs’ Motion for Summary Judgment will be granted.”

“Accordingly, Plaintiffs’ requested relief that this Court declare the Challenged Statute unconstitutional and enjoin the enforcement of that Statute are appropriate remedies under the circumstances of this case,” the judge added. “As articulated by the Fourth Circuit, ‘the proper remedy for a legal provision enacted with discriminatory intent,’ as is the Challenged Statute, ‘is invalidation.’ And since the North Carolina General Assembly failed to repeal the Challenged Statute, the Court will permanently enjoin further enforcement of that Statute.”

The challenged law created a Class I felony for any felon to vote without having his rights restored by law. Senate Bill 747, approved in 2023, added a “scienter requirement” to the law. Moving forward, only felons who knew their rights had not been restored could be charged with a new felony.

That new requirement did not persuade Biggs that the law was constitutional.

Her order focused on the plaintiffs’ complaint that the felon voting crime “was originally enacted in 1877 with the intent to exclude Black people from voting and continues to have a disproportionate impact on Black people.”

“Defendants, in an extraordinary and telling concession, ‘do not contest that the historical background from the original enactments of 1877 and 1899 are indefensible. Defendants further do not contest that the law currently impacts African-Americans at a higher rate than it does other citizens,’” Biggs wrote.

“However, Defendants argue that, by adopting a new constitution in 1971, the North Carolina Legislature cleansed the Challenged Statute of its discriminatory taint. … [T]heir argument fails,” Biggs ruled.

The judge also attacked the law’s potential for arbitrary enforcement. “Record evidence demonstrating this inconsistency in District Attorneys’ interpretation and enforcement of the Challenged Statute — that some believed that the Challenged Statute included a requirement of intent while others did not — compels the conclusion that the Challenged Statute permits a ‘standardless sweep’ that allows prosecutors to ‘pursue their personal predilections’ under the Challenged Statute,” Biggs wrote. “The Court now reaches that conclusion.”

Two plaintiff groups, the North Carolina A. Philip Randolph Institute and Action NC, filed suit in September 2020. They argued that the felon voting law forced them to spend time and money advising felons about their rights. The plaintiffs are working with lawyers from the Southern Coalition for Social Justice.

Critics of North Carolina’s felon voting restrictions turned their attention back to federal court last year, less than two months after the NC Supreme Court rejected a challenge of the state’s felon voting restrictions in April 2023.

Plaintiffs in a separate case called Community Success Initiative v. Moore had challenged felon voting restrictions — § 13-1 — through the state court system. Activists hoped to open the door to voting for as many as 56,000 felons who had completed active prison time but had not completed their full sentences.

A split 2-1 trial court ruling, upheld by a split 2-1 state Appeals Court decision, allowed felons to register and vote in the November 2022 election.

The state’s highest court overruled lower courts five months later.

“Our state constitution ties voting rights to the obligation that all citizens have to refrain from criminal misconduct,” wrote Justice Trey Allen for the 5-2 majority. “Specifically, it denies individuals with felony convictions the right to vote unless their citizenship rights are restored ‘in the manner prescribed by law.’ No party to this litigation disputes the validity of Article VI, Section 2(3) of the North Carolina Constitution.”

“This case is therefore not about whether disenfranchisement should be a consequence
of a felony conviction,” Allen added. “The state constitution says that it must be, and we are bound by that mandate.”

Plaintiffs instead challenged laws approved in the 1970s to set the rules for felons to regain voting rights. “The evidence does not prove that legislators intended their reforms … in the early 1970s to disadvantage African Americans, nor does it substantiate plaintiffs’ other constitutional claims,” Allen wrote. “It is not unconstitutional to insist that felons pay their debt to society as a condition of participating in the electoral process. We therefore reverse the trial court’s final order and judgment.”

“The General Assembly did not engage in racial discrimination or otherwise violate the North Carolina Constitution by requiring individuals with felony convictions to complete their sentences — including probation, parole, or post-release supervision — before they regain the right to vote,” Allen added.

Justice Anita Earls wrote for the dissenting Democratic justices. “The majority’s decision in this case will one day be repudiated on two grounds,” she wrote. “First, because it seeks to justify the denial of a basic human right to citizens and thereby perpetuates a vestige of slavery, and second, because the majority violates a basic tenant of appellate review by ignoring the facts as found by the trial court and substituting its own.”