For the first election in 143 years, some people currently serving felony sentences will be able to vote in a North Carolina election.
The state does not know exactly who they are or how many.
On Sept. 4, a three-judge panel in Wake County Superior Court announced a decision striking down part of North Carolina’s felony disenfranchisement law, which originated in 1877, for violations of the state constitution.
People cannot be blocked from voting only because they still owe money for fines and fees from their felony conviction, the order said.
But putting the court’s decision into practice has faced obstacles.
To qualify to vote while still serving a felony sentence, the decision said, a person must still be serving the sentence only for a failure to pay financial costs.
That means that the person is on “community supervision,” a catchall term for probation, parole or post-release supervision, and had that supervision extended beyond the original sentence only because he or she did not pay fines or fees associated with the felony conviction.
The N.C. State Board of Elections, in collaboration with the Department of Public Safety, identified and contacted 3,400 people who are serving extended sentences.
Only a subset of those people, though, will be eligible to vote. DPS does not keep electronic records of why people’s sentences are extended, a department spokesperson told Carolina Public Press.
To get around this obstacle, the NCSBE sent a notice to all potentially eligible voters, saying that they can vote if “the voter does not know of another reason that their probation, parole or post-release supervision was extended.”
People on probation or parole usually know whether they are still under state supervision, said Phil Dixon, who used to work as a defense attorney and now trains public defenders through the UNC School of Government. Knowing all the reasons why they are still on supervision is a more difficult question.
“It’s very possible some people won’t know why their probation or parole was extended or recall if monetary conditions were a reason or the reason,” Dixon said.
“I think the only way they can figure that out is if their supervising officer has that paperwork or by checking courthouse records.”
This lack of clarity should not hold people back from voting, if they qualify, said Daryl Atkinson, a lawyer who argued for the ban to be lifted and the co-director of the Durham-based civil rights group Forward Justice.
“If there was ever a time that we need to hear from everybody, all of our citizens around … the proper direction of our state and country, I think now is that time,” Atkinson said.
Atkinson has worked as a criminal defense lawyer and represents people facing probation violations “all the time.” The state does have good information on probation violations or extensions, Atkinson said.
“This lawsuit hopefully will spur those agencies to keep better data because it has huge implications for people,” Atkinson said.
Even so, with so little time until the election, the perfect must not be the enemy of the good, Atkinson said. Forward Justice is part of the Second Chance Alliance, a coalition of groups that provides services to people reentering society after prison.
“We’ve given people the best possible information that we can,” Atkinson said.
The deadline to register to vote has passed, though people who missed that deadline can register and vote in one trip to an early voting site in their county of residence.
Legal fight is personal
The fight for felon reenfranchisement is personal for Atkinson and for the primary plaintiff in the case, Dennis Gaddy.
Both men have been convicted of felonies — Atkinson of drug trafficking in Alabama in 1996 and Gaddy of financial crimes in North Carolina in 2000.
Gaddy had his probation extended because he could not pay his fines, Atkinson said. Atkinson was Gaddy’s lawyer at the time.
Gaddy is now the founder and director for the Community Service Initiative, which supports people getting out of prison. His organization is also getting out the vote among people who are recently released from state supervision.
“We’ve found out that people hear you differently if they know you share their same experience,” Gaddy said.
Risk of prosecution
Clear communication is needed. If someone is ineligible to vote but casts a ballot anyway, that person could be prosecuted for a felony.
After the very close 2016 gubernatorial election, the NCSBE researched how many ballots were cast by ineligible voters and found 441 felons had voted. Many of those cases were referred to prosecutors.
None of the votes changed the outcome of any election, and investigations showed that most of the people who voted despite being ineligible simply did not understand the rules. Though most of the prosecutors decided not to take the cases, some charged the voters with a felony.
The current director of the NCSBE, Karen Brinson Bell, said under oath in a deposition for the lawsuit that the Board of Elections has no plans to conduct a similar audit this year. That could potentially change, though, if the board members direct the elections staff to do so or if the legislature passes a law requiring such an audit.
As it stands, the NCSBE confirmed it would review on a “case-by-case basis” any instances where a person voted despite not being eligible under the new rules.
Felon disenfranchisement laws have long caused uncertainty about voter eligibility, Atkinson said.
“The court’s ruling didn’t create confusion amongst people with criminal records and their voting status,” Atkinson said. “That already existed.
“What the court’s ruling tried to do is to provide clarity that money, money is no longer going to be a barrier and an obstacle to people being able to register to vote.”
Fight over felon disenfranchisement continues
The legal case, CSI v. Moore, is not yet over. Part of the case is decided, while other arguments will move to trial.
The decision to stop disenfranchisement of people simply because they owe fines or fees is final, as is the judges’ decision to dismiss the argument that disenfranchising people on community supervision is a violation of free speech under the state constitution.
At trial, which is expected to start in February, judges will review whether felony disenfranchisement of people on community supervision is a violation of the state constitution’s free elections clause or equal protection clause due to race-based discrimination.
“Voting is your voice. It’s not perfect, but it’s one of the mechanisms that we have at our disposal,” Atkinson said. “And if you want to have a say-so in the direction of the country, this is how you got to do it.”
If the plaintiffs prevail, up to 55,000 additional people could regain the right to vote in future North Carolina elections.