A recent change in North Carolina’s election law should prompt a federal court to dismiss a lawsuit from felon voting advocates as moot. That’s the argument the State Board of Elections and local district attorneys made in a court filing Wednesday.
A hearing in the case is scheduled Nov. 14 in Durham.
The state elections board and DAs argue that a recent change in state election law guts the federal challenge of North Carolina’s prohibition against felon voting.
“Plaintiffs do not retain any ‘concrete interest’ in this litigation,” according to the court filing from state government lawyers in the NC Department of Justice.
The court filing focuses on a single paragraph in the 43-page law known as Senate Bill 747. It changes the language of NC Gen. Stat. § 163-275(5). That statute created a Class I felony “For any person convicted of a crime which excludes the person from the right of suffrage, to vote at any primary or election without having been restored to the right of citizenship in due course and by the method provided by law.”
Under provisions of the new law, it’s a crime “For any person convicted of a crime which excludes the person from the right of suffrage, to vote in any primary or election knowing the right of citizenship has not been restored in due course and by the method provided by law.”
The major change is that the voting felon would have to know that his voting rights had not been restored to be charged with a crime. In legal terms, the law now has a “scienter” requirement.
“Plaintiffs’ arguments that pre-amendment section 163-275(5) is unconstitutional have steadfastly focused on the absence of a scienter element in the statute and the General Assembly not making any substantive amendments to its language since its original passage,” Justice Department lawyers wrote.
“The General Assembly has now amended section 163-175(5), adding a scienter requirement, and all voting to which the pre-amendment version of that law would apply has concluded,” the Justice Department brief continued. “In other words, for all future elections, any felon who unlawfully votes cannot be convicted under N.C.G.S. § 163-175(5), unless the government establishes the relevant level of scienter.”
“This fact means Plaintiffs can no longer claim — as they have throughout the life of this case — that the risk that prospective voters will be prosecuted on a strict-liability basis for voting unlawfully means that Plaintiffs must divert resources which would otherwise be used for other voter-education purposes. The fact that this is no longer a viable interest for Plaintiffs dooms their claims,” the state argued.
The elections board and DAs submitted their arguments five days after felon voting advocates argued that SB 747 had no impact on their lawsuit.
In a court filing Friday, felon voting supporters urged a federal judge to grant their request to strike down North Carolina’s 50-year-old felon re-enfranchisement law.
“The Court should grant summary judgment that N.C.G.S. § 163-275(5) (the ‘Law’) violates the Fourteenth Amendment,” wrote attorneys representing the plaintiffs. “Defendants have conceded that they ‘do not possess any evidence to dispute’ that the Law was enacted with discriminatory intent in 1877, the Law was reenacted with discriminatory intent in 1899, and the Law continues to have a disproportionate effect on Black voters through today.”
“Nothing in Senate Bill 747 (‘SB 747’) changes those undisputed facts,” felon voting advocates argued. “The Law is therefore unconstitutional and cannot be saved by SB 747. In addition, because SB 747 has not gone into effect and is not retroactive, the existing Law will continue to impede Plaintiffs’ voter organization efforts. The case will not become moot.”
The brief noted that the change in state law linked to SB 747 takes effect Jan. 1. “The prospective future change in the Law does not cure the existing constitutional violations or provide Defendants with an escape hatch to avoid summary judgment,” felon voting advocates argued. “There are still no genuine issues of material fact in dispute regarding the discriminatory intent and impact of the Law.”
“As long as the risk of prosecution under the existing Law remains, Plaintiffs’ voter organization efforts will be impeded,” the brief explained. “Indeed, continued prosecutions under the existing Law would cause great voter confusion as to the state of the Law post-January 1, 2024.”
Felon voting advocates point to evidence of “more than 200 cases currently subject to DA review for potential prosecution.” The State Board of Elections’ general counsel has testified that the board would refer all potential violations of the law to prosecutors, according to the court filing.
“Public prosecutions under the existing, historic Law in the lead up to the 2024 election cycle would cause voter confusion and impede Plaintiffs’ efforts,” felon voting advocates argued..
Felon voting advocates filed a motion for summary judgment in June. They want the federal courts to strike down a state law that allows felons to regain voting rights only after they complete their full sentences.
Advocates want felons to be able to register and vote once they have completed active prison sentences. Their suit would affect felons on parole, probation, or post-release supervision.
US District Judge Loretta Biggs decided on Sept. 25 not to speed up the case’s timeline. Biggs rejected a proposal that could have affected rules for this year’s municipal elections.
Instead the hearing will take place one week after Election Day. A trial in the case is scheduled for April.
The NC State Board of Elections and local district attorneys urged Biggs this summer to reject the lawsuit filed by the North Carolina A. Philip Randolph Institute and Action NC. The plaintiffs are working with lawyers from the Southern Coalition for Social Justice.
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 in April.
The Southern Coalition for Social Justice filed a motion for summary judgment on June 15 in US District Court. The group represents plaintiffs who started a legal challenge in September 2020. The lawsuit asks a federal judge to “invalidate” the felon re-enfranchisement law.
“The Court should invalidate North Carolina General Statute § 163-275(5) because it violates both the Equal Protection and Due Process Clauses of the Fourteenth Amendment,” according to the motion.
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,” the brief added.
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.”