North Carolina Supreme Court hears felony voting rights case

Published 10:03 am Sunday, February 12, 2023

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By Gary D. Robertson Associated Press

North Carolina’s newly seated Supreme Court heard arguments last Thursday on whether people convicted of felonies — tens of thousands statewide — should be permitted to vote if they aren’t in prison but still are serving probation or parole or have yet to pay fines.

The justices listened to their first high-profile case since the court flipped to Republican control in January, after a Democratic majority for the past six years. They didn’t immediately rule.

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The court’s two new Republican justices featured prominently in an hour of questioning over 2019 litigation from civil rights groups and ex-offenders who challenged a 1973 state law automatically restoring voting rights only after the “unconditional discharge of an inmate, of a probationer, or of a parolee.” The law is in place because the state constitution says one is needed to overcome the state’s blanket voting prohibition for felony offenders.

Last year, a majority of trial judges agreed with the plaintiffs that keeping felony offenders who aren’t behind bars but are still under state supervision from registering to vote disproportionately harmed black offenders and violated the constitution’s equal protection and free election clauses. Their rulings told election officials they can’t deny voter registration to any convicted felon who is on probation, parole or post-release supervision.

At the time of the 2021 trial, over 56,000 people on probation, parole or supervision were estimated to be affected by the law – compared to the state’s 7.2 million registered voters. The ruling gave these types of offenders the option to register to vote and cast ballots, with most of them getting that chance this past November. Some people who had only fines yet to pay also have been able to register to vote since 2020.

New Associate Justices Richard Dietz and Trey Allen — among the five Republicans now on the seven-member court — questioned whether the trial judges were wrong to pick and choose which portions of the law they believed were biased and strike them out.

“The courts can’t grant the restoration of voting rights to felons,” Allen told plaintiffs’ attorney Stanton Jones. “The constitution expressly provided that those rights can only be restored in a manner prescribed by law, and the authority to adopt such a law rests with the General Assembly, not with any court.”

But Jones told Dietz, “The trial court properly enjoined only the racially discriminatory aspect of the law here, which was the denial of the franchise to people who are living in the community.”

The trial judges accepted arguments of trial witnesses that the 1973 law remained rooted in Reconstruction-era efforts by white politicians to intentionally prevent black residents from voting.

Republican legislative leaders defending the law acknowledged the state’s voter suppression history but argued the changes made in the early 1970s — when the General Assembly was overwhelmingly Democratic — were hardly racist. Their attorneys told the court in briefs that the changes championed by the General Assembly’s few black lawmakers at the time actually made it easier for felony offenders to vote by doing away with the requirement that they ask a judge to restore those rights, making it automatic after all penalties are complete.

“Something has gone awry when a signature achievement of the civil rights movement is invalidated on the basis of racial discrimination,” argued Peter Patterson, the GOP legislators’ attorney.

The plaintiffs presented evidence at trial that showed African Americans are denied the right to vote due to the felony supervision limits at nearly three times the rate of white felony offenders. But that has nothing to do with the law itself, Patterson said. The law treats all convicted felons the same regardless of race, he added.

But Jones said under that type of logic a poll tax or literacy test — both used during the Jim Crow era to prevent black residents from voting — would be lawful simply because a law’s text was racially neutral.

Daryl Atkinson, another attorney for the plaintiffs, told the justices that court fees, fines and other costs that a felony offender must pay in order to obtain their unconditional discharge equates to a property qualification to obtain a political right that the state constitution prohibits.

The median amount that North Carolina probationers owe is over $2,400, Atkinson said, and failing to pay “results in a multiyear extension of their disenfranchisement.”

Chief Justice Paul Newby, a Republican, questioned the broadness of Atkinson’s definition of property given the history of the state’s constitution. But Atkinson argued the constitution’s framers “envisioned that wealth would not be an exclusionary factor to being able to be a participant in the body politic.”

Opinions by the 4-3 Democratic majority on the court during the past two years blocked several laws or actions backed by the GOP-controlled General Assembly. They struck down redistricting plans drawn by legislators and the state’s latest photo voter identification law.