Biggs will not speed up consideration of federal NC felon voting case

A federal judge has denied a request to speed up consideration of a lawsuit against North Carolina’s felon voting restrictions. An order issued Monday leaves the case’s current timeline intact.

“Considering the timing of the motion, the Supreme Court precedent regarding federal courts enjoining state election laws, the risk of voter confusion, judicial economy, and the special considerations raised by the Parties, the Court will deny Plaintiffs’ motion,” wrote US District Judge Loretta Biggs.

Biggs held a telephone conference on Sept. 20 with parties in the case. Felon voting advocates had asked Biggs to expedite their requests for summary judgment and a permanent injunction. Plaintiffs oppose North Carolina’s law blocking felons from voting until they have completed their full sentences.

“First considering the timing of the motion, Plaintiffs request goes against Supreme Court precedent and should have been brought prior to the eve of the municipal elections, which are now underway.,” Biggs wrote “Assuming that the case could be resolved on summary judgment and that such judgment would be in Plaintiffs’ favor, that determination would invalidate a longstanding voting law ― even though potentially unconstitutional ― not only on the eve of but during the ongoing municipal elections.”

“Such a decision would not leave the North Carolina State Board of Elections adequate time to notify and educate the public and would likely lead to voter confusion,” Biggs explained. “Furthermore, such a decision could be characterized as ‘[l]ate judicial tinkering with election laws’ that the Supreme Court has cautioned federal courts to avoid.”

“It is well settled that ‘federal district courts ordinarily should not enjoin state election laws in the period close to an election,’” Biggs wrote. “This Court will not disregard these longstanding principles.”

The judge noted felon voting advocates’ “ample opportunities” to seek an expedited ruling earlier in the legal process. “However, Plaintiffs waited until mere weeks before the regularly scheduled municipal elections to bring this motion to expedite,” she wrote.

Biggs also ruled that the plaintiffs’ request “would not promote judicial economy.” The summary judgment sits before a magistrate judge, who “has been involved with all aspects of the case and therefore is intimately familiar with the case, the historical background, and the legal issues.”

“Defendants contend … that the legislative history relevant to resolving this issue could create factual disputes, such that summary judgment would not be appropriate,” the judge wrote. “Furthermore, Defendants argue that analysis of the remaining legal issues ‘will require the Court to review historical records, legal precedents, and legislative history dating back 150 years.’ The Court agrees with Defendants.”

Biggs declined “to rule on a state election law in the midst of the ongoing municipal elections.”

The North Carolina State Board of Elections and local district attorneys filed formal objections on Sept. 7 to plaintiffs’ request to speed up the felon voting case.

“The history and procedural status of this case indicate that there is no reason to expedite Plaintiffs’ motion for summary judgment,” wrote attorneys from the NC Department of Justice. “Plaintiffs’ only reason for seeking this late-breaking request is because their claims are likely to become moot after an amendment to N.C.G.S. § 163-275(5) — the law challenged in this action — is enacted.”

“Plaintiffs’ desire to obtain a rushed final judgment on the merits before their claims become moot is not sufficient cause to expedite summary judgment,” according to the state’s court filing. “This is particularly true here, where expediting summary judgment could change an election law during an ongoing election.”

State lawyers reminded Biggs that federal courts denied a preliminary injunction in the same lawsuit in 2020. “Plaintiffs’ current request is no more urgent than their motion for preliminary injunction three years ago,” according to the court filing. “Moreover, in the three years since this Court denied the preliminary injunction motion, Plaintiffs have exhibited little sense of urgency in this litigation.”

“Plaintiffs’ own theory of the case states that the challenged law has existed and been enforced as part of the election law scheme of North Carolina for 150 years,” state lawyers wrote. “Yet, they now think it would cause less confusion to overturn that law in the middle of an election. This argument defies logic and is contrary to well-established principles of law governing considerations of election-law cases in federal court, as recognized by the Supreme Court of the United States.”

The document warned Biggs that municipal elections are taking place now, with early voting underway in some parts of the state.

The North Carolina A. Philip Randolph Institute and Action NC are pushing for felons to be able to vote in NC elections after they have completed active prison sentences. Voters in that category were able to register and vote in November 2022. An April ruling from the state Supreme Court ended felon voting. Under current law, no felon can cast a ballot in an election in North Carolina unless he has completed his entire sentence. That includes probation, parole, and post-release supervision.

A trial in the case is scheduled for April 2024.

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

Opponents label the felon voting restriction the “Strict Liability Voting Law.” It “imposes strict-liability, felony-level criminal penalties on citizens who vote while on parole, probation, or post-release supervision for a felony conviction — even if they mistakenly believe they are eligible to vote. The Law cannot withstand Fourteenth Amendment scrutiny,” according to a legal brief from the plaintiffs.

The motion for summary judgment focuses on an 1877 version of the felon voting law. It offers a passing reference to amendments as recently as 1973 that have made it easier for felons to regain voting rights after completing their sentences. The document references a state constitutional provision related to felon voting restrictions. Yet the suit does not target the state constitution.

Federal court action follows felon voting advocates’ April 28 setback in North Carolina’s highest court.

Plaintiffs in a separate case called Community Success Initiative v. Moore had challenged felon voting restrictions 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 last November’s election.

The state’s highest court overruled those lower courts.

“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.”

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