North Carolina Felony Disenfranchisement Challenge

On Thursday, Feb. 2, the North Carolina Supreme Court heard oral argument in Community Success Initiative v. Moore, a lawsuit challenging the state’s felony disenfranchisement law that prohibits individuals with felony convictions from voting until the completion of their entire sentence, including probation, post-release supervision or community supervision. Additionally, at the time the lawsuit was filed, the only way an individual could be released from probation was to pay various legal and court fees, adding a financial barrier to re-enfranchisement. You can read a more detailed breakdown of the case here. 

Back in March 2022, the trial court issued a 2-1 decision permanently striking down the felony disenfranchisement law for discriminating against Black voters in violation of the North Carolina Constitution. Subsequently, the Republican legislative defendants appealed the trial court’s decision to the North Carolina Court of Appeals, but before the appellate court decided the appeal, the North Carolina Supreme Court took over the case at the request of the pro-voting groups behind the lawsuit. In today’s oral argument, the North Carolina Supreme Court heard from the parties over whether to affirm or reverse the trial court’s decision to permanently block the challenged felony disenfranchisement law. 

In today’s oral argument, the court first heard from the attorney for the appellants — the GOP legislators defending the law — who opened his argument by asserting that “the key flaw in plaintiffs’ case here is that they have challenged North Carolina’s law providing for felon re-enfranchisement” but ”without any evidence of relevant, racially discriminatory impact, plaintiffs’ claims should fail just on that basis.” In addition to claiming that the challenged law is not racially discriminatory and does not have a “disparate impact” on African Americans, the appellants’ attorney maintained that the challenged law does not disenfranchise anyone, but rather only serves to “re-enfranchise” North Carolinans. Justice Anita Earls refuted this claim by responding that the “statute challenged here [could still be] intentionally racially discriminatory, even though…race [is] not in the statute itself” and it appears “racially neutral” on its face. Earls also pointed to the preponderance of evidence relied on by the trial court that contributed to its findings of fact that the challenged statute was indeed racially discriminatory both in its intent and effect. 

The appellants’ attorney was then asked by Justice Michael Morgan whether strict scrutiny (the highest standard of judicial review that asks whether a statute serves a compelling state interest and is narrowly tailored to that interest) applies when assessing the constitutionality of the statute. The appellants’ attorney replied that strict scrutiny does not apply to the appellees’ right to vote claims because felons do not have the fundamental right to vote under the North Carolina Constitution. The appellants’ attorney elaborated on this point, stating that “the North Carolina Constitution says felons lack the right to vote unless they are re-enfranchised in the manner prescribed by law.” Despite the trial court’s finding that the law was indeed enacted with discriminatory intent, the appellants’ attorney contended that “there is no evidence of intent that is relevant and probative with respect to either race or with respect to wealth in this case.” 

Morgan also pressed the appellants’ attorney on what constitutes the completion of a sentence under the law. He stated that even after an individual has completed their formal sentence, there is still an “aspect of disenfranchisement, wherein one who has not completed the financial obligations is still disenfranchised.” Morgan continued: “If the sentence itself is completed, and the costs and the fees and the fines are otherwise administrative in nature more than punitive or deterrent or rehabilitative, then why should that still operate even on the rational basis to keep one from being able to vote when nothing is left except the monetary obligations?” In response to this line of questioning, the appellants’ attorney responded that “[p]erhaps the most natural place to draw the line for when they’re re-enfranchised is when they’ve paid their debt to society in full completed — not only the carceral terms of sentence that they have won, but also the financial terms which are just as much a part of their sentence.”

Next, the court heard from the first attorney for the appellees — the pro-voting organizations seeking to overturn the law — who specifically addressed the intentional racial discrimination claims made in the lower court. The appellees’ attorney began by declaring that “[c]ontrary to what you just heard…the North Carolina Constitution does not give the Legislature a special license to intentionally discriminate against African Americans.” The appellees’ attorney was then asked by Justice Richard Dietz whether the appropriate “remedy under our constitutional doctrine would be that we declare the act of the General Assembly unconstitutional — a nullity — and that the Legislature must re-enact a constitutional version of the statute?” To this, the appellees’ attorney replied that the trial court properly enjoined (meaning blocked) only the racially discriminatory aspects of the law, not the entire law. He further noted that striking down the law in its entirety would upset the longstanding regime of voting rights restoration in North Carolina. 

Next, the appellees’ attorney refuted the appellants’ argument that there is “no disparate impact” from this law, underscoring the fact that although the statute is facially race neutral, it is intentionally designed to discriminate against African Americans and it most certainly has discriminatory effects. In fact, he added, “the trial court found that it does have [discriminatory] effects in spades, based on a host of mathematical metrics.” The appellees’ attorney explained that the appellants’ argument “that this law equally disenfranchises African Americans and white people who have felony convictions and haven’t had their rights restored” is fallacious. It allegedly amounts to a rationale that would “justify a poll tax or a literacy test because a poll tax disenfranchises 100% of Black people and 100% of white people who can’t pay the poll tax…By this reasoning, there would be no disparate impact on any race.” The appellees’ attorney closed out his argument by concluding that “[p]eople have an independent right under the Equal Protection Clause in the state not to be victims of intentional racial discrimination by the Legislature.”

Next, the court heard from the other attorney for the appellees, who focused on the claims related to individuals on community supervision who remain disenfranchised due to outstanding fees and fines. He opened his argument by stating that “[i]n the state of North Carolina, if you are convicted of a felony, you cannot vote if you do not pay money. The trial court held this practice unconstitutional because requiring that all fees, fines and costs be paid to obtain an unconditional discharge makes the voting rights of people convicted of felonies dependent on their own property and imposes unequal terms on such persons getting their voting rights back.” Justice Trey Allen asked the appellees’ attorney: “So at the point where [individuals with felony convictions] have yet to pay, they don’t have voting rights under the law. What’s wrong with thinking about it that way?” The appellees’ attorney responded by saying that the North Carolina Constitution makes clear that property qualifications (and one’s wealth) should not affect one’s right to vote. After more questioning from the justices, the appellees’ attorney concluded by stating that “what is undergirding opposing counsel’s arguments is that for people convicted of felonies, you can do any manner of things to them to discriminate against them, and it wouldn’t violate the [state] constitution…That can’t be the way.”

Finally, the court heard rebuttal from the appellants’ attorney, who stated that the appellants were “not asking for a special license to discriminate” but “asking that the law that is being challenged be the law that is being reviewed…and the law that’s being reviewed here is a law re-enfranchising felons automatically and immediately.” The appellants’ attorney stated that the law was “a crowning achievement of the Civil Rights Movement of this state. It was not the product of racial discrimination.” Earls countered this assertion, responding that “you said in your opening [argument] that this was a crowning achievement, but the findings of fact from the trial court explicitly said that the evidence in this case refuted that contention.”