Just last year, a state trial court panel opened the door for around 56,000 North Carolinians with felony convictions to register to vote. At the time, a lead plaintiffs' attorney on the case called the ruling the largest voting rights expansion in North Carolina since the Civil Rights era.
That expansion can turn into a re-contraction depending on how the North Carolina Supreme Court, with its newly minted majority of Republican justices, rules following oral arguments Thursday in an appeal of the case, Community Success Initiative v. Moore.
"Section 13-1 does not deny anyone of the franchise," said Pete Patterson, an attorney representing Republican state lawmakers defending the statute. "It only extends the franchise to individuals, who, under the Constitution, would not be able to vote otherwise."
That, the GOP lawmakers argue, is because without the statute, there would be no provision defining just how someone convicted of a felony could regain their voting rights. Under Article VI, Section 2, of the North Carolina Constitution, no person convicted of a felony may vote until their citizenship rights have been restored "in the manner prescribed by law."
The prescription is spelled out by the challenged statute, which says restoring such rights comes with "unconditional discharge" of a person convicted of a felony. That means the person must complete all terms of their sentence, including probation, parole or other post-conviction terms.
Legislative defendants also note that the statute has undergone many changes since it was first enacted before the Civil War, including amendments passed in the early 1970s that relaxed the requirements for restoration.
However, attorneys for the plaintiffs challenging the statute, which includes advocacy groups and individuals previously denied voting rights because of felony convictions, presented expert evidence at the trial court level showing a disparate impact on Black and, especially, poor people struggling to pay fees associated with their sentences.
According to data presented in the plaintiffs' case, African Americans represent 21% of North Carolina’s voting population statewide, but over 42% of those disenfranchised due to felony supervision. In comparison, white people comprise 72% of the voting-age population, but only 52% of those disenfranchised.
The attorney for the GOP lawmakers dismissed the data as misleading and argued the statute equally applies to all people, regardless of class or background, with felony convictions.
"Perhaps the most natural place to draw the line for when they're re-enfranchised," attorney Patterson said on behalf of the Republican legislators, "is when they've paid their debt to society."
But an attorney for plaintiffs countered that U.S. Supreme Court case law supports invalidating a statute whose impact has a racially disparate impact.
"The argument is that this law equally disenfranchises African Americans and white people who have felony convictions and haven't had their rights restored," said Stanton Jones, one of two plaintiffs' attorneys addressing the high court on Thursday. "That rationale would justify a poll tax or a literacy test."
Furthermore, the statute violates a state constitutional prohibition, under Article I, Section 11, against requiring persons to own property to vote, according to Daryl Atkinson, co-director of Durham-based Forward Justice, and the other attorney who addressed the high court on Thursday.
Justice Trey Allen, one of the court's newest members, having won election in November, unseating Democrat Sam Ervin IV, challenged Atkinson from the bench.
"You could read Article VI to say 'felons don't have a right to vote until their rights of citizenship have been restored in the manner prescribed by law,'" Allen said to Atkinson, adding an emphasis to the word 'until.'
In other words, the justice continued, until a person convicted of a felony has fully paid their court fines, costs and fees, they do not have a voting right.
"What's wrong with thinking about it that way?" Allen asked Atkinson.
"People convicted of felonies, you could do any manner of things to discriminate against them and it wouldn't violate the Constitution, your Honor," Atkinson replied. "That can't be the way."
"Folks must still have some constitutional protections under the North Carolina Constitution even if their voting rights haven't been restored," Atkinson added.
Last year, the state Supreme Court granted the plaintiffs' motion to expedite appeal of their lower court victory and take up the case instead of having it heard by the North Carolina Court of Appeals first.
That decision was made when Democrats held a slim 4-3 majority on the high court. In November, however, along with Allen's victory over Ervin, Republican Justice Richard Dietz beat out Democrat Lucy Inman for an open seat vacated by retiring Justice Robin Hudson.
Those outcomes drastically shook up the court's composition, giving Republicans a 5-2 advantage.
