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Civil rights groups are challenging the constitutionality of a North Carolina law that keeps people convicted of felonies from being able to vote even after they are released from prison.
If they win the case, 56,000 North Carolinians would be restored their right to vote before the November elections.
North Carolina laws taking the right to vote away from people convicted of felonies originate with the state’s 1875 constitutional amendment, which lawmakers explicitly passed as a mechanism to disenfranchise recently freed Black citizens.
The lawsuit, filed in Wake County Superior Court in front of a three-judge panel, names both the legislature and the state Board of Elections as defendants.
In an all-day hearing on Wednesday, the legal arguments covered the historically discriminatory intent of voter disenfranchisement laws and revealed some surprising twists.
The current legal system, under guidance from the North Carolina Constitution, says any person convicted of a felony loses his or her right to vote until that right is restored “in the manner prescribed by law.” By state law, originally written just after the Civil War and revised in 1973, the right is not restored until there is an “unconditional discharge” from state custody. That includes probation and post-release supervision, which used to be called parole in North Carolina.
When pressed by the judges, lawyers for the state first said the racially discriminatory intent of the state Constitution’s felon disenfranchisement law would be hard to defend. Then state lawyers said there are instances under the current law that are discriminatory and that the law could likely be improved.
But neither the North Carolina Constitution nor the quality of the legislature’s 1973 law was at question here, they said, claiming that for the plaintiffs to win, they would need to show that the law in its entirety was unconstitutional.
That is precisely what Daryl Atkinson, lead attorney for the plaintiffs and co-director of the Durham-based civil rights group Forward Justice, tried to do. He couched his arguments in the significance of the current political moment, during a global pandemic, a massive economic downturn that destabilized schooling and housing and civil rights protests of a scope not seen since 1968.
“If there was ever a time in this state’s history where we need to hear from all the voices of our citizens on the proper direction of our state and country, now is that time,” Atkinson said.
In making his argument for the court to act quickly, Atkinson said voters will cast ballots on issues this year that “can literally result in life or death.”
Superior Court Judge Lisa Bell said the court will make its decision no later than Sept. 4, which is the beginning of by-mail voting and 60 days before Election Day.
The disenfranchisement law disproportionately harms Black North Carolinians, who make up 22% of the state’s population, but 42% of people disenfranchised due to community supervision.
The limits the Black community’s ability to exercise political influence through a vote. A common misperception, though, is that this influence, if restored, would help a single political party. There is little evidence to support that claim, which tends to exaggerate the number of Black people with felonies and the rate at which Black people vote for the Democratic Party.
Though Black North Carolinians are disenfranchised at by-far the highest rates as a percentage of the state’s population, just over half of the people disenfranchised are white.
Across all demographics, 38.5% of the people currently under community supervision were registered to vote in the past, according to a report submitted by the plaintiffs. The author of that report, Traci Burch, a political science professor at Northwestern University, showed that 20% of the people who were eligible to vote in 2016, but who are now disenfranchised on community supervision, cast a ballot that year.
Extrapolating from these numbers, which Burch called “conservative,” about 10,500 additional people could be expected to actually cast a ballot in the general election for 2020 if they are restored the right to vote. Voter participation rates are similar among different races.
The arguments ranged from the racially discriminatory origins of felon disenfranchisement in the state Constitution to the legislative drafters’ intent behind a 1973 law governing the extent of that disenfranchisement and to the kinds of legal tests that should be applied in the court’s decision-making.
In order to win the case, the plaintiffs will have to carry the burden of proof that the 1973 law violates the state Constitution under the free elections clause, which states simply, “All elections shall be free.”
That understanding of the clause received a boost from the recent Common Cause v. Lewis case challenging North Carolina’s gerrymandered drawing of legislative districts, in which the state court ruled that “elections must be conducted freely and honestly to ascertain, fairly and truthfully, the will of the people.”
Atkinson and his co-counsel followed three lines of argument, starting with the position that the 1973 law extending disenfranchisement after incarceration is racially discriminatory in its intent.
Plaintiffs then argued that requiring fines and fees to be paid as a condition of release from state supervision is unconstitutional because it creates an “impermissible wealth-based classification” differentiating those who get to vote and those who do not, just as a poll tax would. This especially goes against the state Constitution’s free elections clause.
Finally, the state does not have a compelling interest in disenfranchising this group, plaintiffs argued. In other words, the disenfranchisement of this group of people does not benefit the state, Atkinson argued. To that end, the plaintiffs submitted a supporting legal document from five states and the District of Columbia, which all restore the right to vote upon getting out of prison, saying their states are better off having these citizens vote.
Court hearings are structured to give both parties equal time to make their arguments and to respond to the other party.
Wednesday’s seven hours of argument started with the plaintiffs, went to the defendants, allowed the plaintiffs to respond and finally for the defendants to have the last word.
While Atkinson couched his arguments in the broader context of our time and the historical impact racism and felon disenfranchisement has had on North Carolinians, the state’s lawyers focused more narrowly on the technical aspects of the legal questions at play.
In answering questions by the judges, lawyers from the state Department of Justice made two concessions. First, the racially discriminatory intent of the disenfranchising clause of the state Constitution would be difficult to defend if it were being challenged.
Second, that though the current law is discriminatory in some instances and could likely be improved, the plaintiffs need to show that the law across the board is unconstitutional.
“It’s important to recognize that the Constitution is what injures the plaintiffs here, the Constitution is what denies the right to vote to people who are convicted of a felony,” said Paul Cox, a lawyer from the state Department of Justice representing the state board defendants.
But the plaintiffs are not challenging the felony disenfranchisement clause of the state Constitution, Cox said. The state Constitution gives the legislature the discretion to describe how the rights of citizenship are restored, and the plaintiffs are arguing that how the state currently makes that decision is unconstitutional.
The argument hinges on the 1973 law.
In reviewing the historical record up until the 1970s, the defendants seemed to agree with the plaintiffs that both the felony disenfranchisement clause of the state Constitution and earlier state laws governing when the right to vote was restored were racially discriminatory.
But the defendants say the 1973 law reformed all that, at a time when there were three Black members of the state legislature.
The law took some discretionary power away from judges and made the restoration of rights seemingly race-neutral so that white judges overseeing cases with Black defendants could not so extensively abuse their power.
But Judge Keith Gregory, Superior Court judge in Wake County and one of the three-judge panel, pushed back on that argument.
Judges still currently have the discretion to extend a probationary period for someone who still owes fines and fees. How then, he asked, is he different from a judge in the 1800s exercising discretion, other than that “now an African American judge is asking the question?”
That point is significant, said Brian Rabinovitz, Department of Justice lawyer for the legislative defendants. The racist discrimination of white judges on Black defendants was what the 1973 law tried to curb, he argued. That there is still some discretion is perhaps “also not ideal,” though he argued that it was the legislature’s responsibility to fix that, not the court’s.
The judges’ ruling
To make their decision, the judges will first need to decide which legal test to apply to the case. Will they ask whether the state has a compelling interest in disenfranchising this group of people, as the plaintiffs argued it doesn’t? Or will the judges ask more simply whether the differentiation between felonies and misdemeanors is a reasonable basis for disenfranchising one group over the other, as the defendants argued?
If the judges keep to their Sept. 4 date for a ruling and decide in favor of the plaintiffs, that would be enough time for Forward Justice and its coalition partners to help newly enfranchised North Carolinaians sign up to vote.
The over 50,000 people on state supervision and the 5,000 people on federal supervision would be able to register to vote before the Oct. 9 deadline or do same-day voter registration during early voting. If they are registered in time, they could also vote by mail or on Election Day.
Though it is relatively unlikely that this many voters spread across the state would have a profound effect on the outcomes of statewide or even many local races, expert reports submitted by the plaintiffs show that the number of disenfranchised people on probation and post-release supervision is five times the margin of victory in the 2016 gubernatorial election, which was decided by 10,263 votes.
That same report, by Frank Baumgartner, a political science professor at the University of North Carolina, found “16 county-level elections in 2018 alone where the margin of victory was less than the number of individuals in that county who are currently disenfranchised.”
During last week’s hearing, the judges challenged points made by the state defendants more frequently than they did of the plaintiffs. Otherwise, they offered no insight into how they would rule.
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