A three-judge federal Appeals Court panel questioned Friday why North Carolina state government lawyers challenged a lower court’s injunction in a case dealing with felon voting.
The April 2024 injunction blocked state prosecutors from enforcing a law that created a Class I felony for convicted felons who vote in North Carolina elections without having their rights restored. A 2023 amendment to the challenged law included a requirement that the felon could be charged only if he knew his rights had not been restored.
Yet judges from the 4th US Circuit Court of Appeals meeting in Richmond, Virginia, Friday raised questions about the impact of the 2023 amendment. It applied only to elections in 2024 and in the future.
Judges asked whether that means North Carolina has two laws dealing with the same issue. They asked whether prosecutors could continue to pursue cases under the old version of the law.
“It sounds like the legislature got it, and they went and they did it,” Judge James Wynn said about the 2023 amendment. “And the only reason we’re looking here is: What are you going to do about the old law? They didn’t do anything with the old law.”
“It sounds messy to me,” Wynn added. “I don’t know how it go to the legislature to do it, but it would be interesting to know if you could just simply go to the legislature and say repeal the old law. Then we wouldn’t be wasting North Carolina’s money and time.”
“It looks like that outcome would at least satisfy the constitutional concerns that are here,” Wynn said.
Lawyers representing the North Carolina State Board of Elections and the state’s elected district attorneys argued that the 2023 amendment made the case moot. They argued that the two plaintiffs — groups called the A. Philip Randolph Institute and Action NC — could no longer claim that they would need to divert resources toward educating voters about the impact of the felon voting crime.
Appellate judges challenged the state’s lawyers on the possibility that felons could continue to be charged under the old version of the law.
“As long as the state is running around prosecuting people for inadvertent mistakes from before 2024, they are still going to have to be out there reassuring everybody, ‘Yeah, yeah, they’re doing it but only backwards — not going forwards,’” said Judge Pamela Harris. “People will be confused by this.”
“Is there anybody prepared to say that they would like to reserve the right to be able to prosecute under the unamended law for cases where there is no mens rea, where somebody had no intent to do the prohibited act?” Harris asked.
“I have no evidence to support that anybody wants to do that,” answered Special Deputy Attorney General Elizabeth Curran O’Brien, representing the DAs.
“Is it your position that it is constitutional to prosecute people criminally for conduct that they did not intend to engage in?” Harris asked. “Because that seems controversial.”
North Carolina’s district attorneys are concerned about the injunction’s impact, O’Brien said. The lawsuit would not have move forward without DAs responding to questions about their enforcement of the targeted law.
“it is troubling to the district attorneys that when they do have transparency about their decisions they’re going to be picked apart,” she said. “I think it has a chilling effect on prosecutorial discretion and transparency and preserving their independence.”
Prosecutors had been pursuing charges under the old law, lawyer Jonathan Youngwood argued for the plaintiffs. “The record showed 32 indictments, 28 convictions, five deferred-prosecution agreements resulting in investigations from 16 different counties,” he said. The court record “makes it very clear that there were 200 active cases” as lawyers conducted discovery in the lawsuit, he added.
“Were this court not to support and affirm the district court’s order, it would basically be a message that it is OK to go back and prosecute these cases,” Youngwood argued.
Wynn, Harris, and Judge DeAndrea Gist Benjamin will decide the case. Former President Barack Obama appointed Wynn and Harris to the 4th Circuit. Former President Joe Biden appointed Benjamin.
“In this lawsuit, Plaintiffs, two organizations that seek to increase voter participation of North Carolina’s Black and low-income communities, challenged the constitutionality of section 163-275(5) of the North Carolina General Statutes. This statute makes it a crime for persons who have been convicted of a felony to vote before their voting rights have been restored,” state Justice Department lawyers wrote in a November filing at the 4th US Circuit. “Plaintiffs argued that this statute has impeded their mission of increasing voter participation by requiring them to spend time educating volunteers and prospective voters about the statute’s requirements.”
“On the merits, Plaintiffs argued that the statute denies voters equal protection because it was enacted with discriminatory animus against Black voters. In asserting this claim, Plaintiffs relied on the fact that the statute allowed for persons to be convicted even when they voted under a mistaken belief that their voting rights had already been restored,” the court filing continued.
“Plaintiffs also separately argued that the statute denies voters due process because it is unconstitutionally vague,” Justice Department lawyers wrote. “In support of this claim, Plaintiffs argued that some district attorneys have prosecuted persons who allegedly voted under the mistaken impression that they were allowed to do so, while others have declined to prosecute such voters. Plaintiffs claimed that these divergent decisions show that the statute lacks adequate guiding standards and is therefore vague.”
“While Plaintiffs’ claims against the statute were pending, however, the North Carolina General Assembly amended the statute with respect to future elections,” the court filing explained. “Under the amended statute, persons now can only be prosecuted if they knowingly vote illegally — i.e., by voting in an election knowing their right of citizenship has not been restored.”
The changes included in Senate Bill 747 in 2023 did not convince US District Judge Loretta Biggs to uphold the law.
“Despite this new enactment, the district court below nonetheless granted Plaintiffs summary judgment on their claims with respect to the old pre-amendment version of the statute. The court also enjoined enforcement of the pre-amendment version of the statute with respect to theoretical prosecutions concerning past elections,” Justice Department lawyers wrote.
“These rulings were erroneous,” state lawyers argued.
Biggs’ April 2024 order against the felon voting crime said the law “was enacted with discriminatory intent, has not been cleansed of its discriminatory taint, and continues to disproportionately impact Black voters.”
The ruling had no impact on a separate law — NCGS § 13-1 — that allows felons to vote only after they complete their full sentences. The law blocks felons from voting if they have completed active prison time but remain on parole, probation, or post-release supervision. The North Carolina Constitution bans all felons from voting unless their rights have been restored by state law.
“The Court holds that the Challenged Statute violates both the Equal Protection and Due Process Clauses of the Fourteenth Amendment,” Biggs wrote in her 2024 decision. “Therefore, Plaintiffs’ Motion for Summary Judgment will be granted.”
“Accordingly, Plaintiffs’ requested relief that this Court declare the Challenged Statute unconstitutional and enjoin the enforcement of that Statute are appropriate remedies under the circumstances of this case,” the judge added. “As articulated by the Fourth Circuit, ‘the proper remedy for a legal provision enacted with discriminatory intent,’ as is the Challenged Statute, ‘is invalidation.’ And since the North Carolina General Assembly failed to repeal the Challenged Statute, the Court will permanently enjoin further enforcement of that Statute.”
Biggs’ order focused on the plaintiffs’ complaint that the felon voting crime “was originally enacted in 1877 with the intent to exclude Black people from voting and continues to have a disproportionate impact on Black people.”
“Defendants, in an extraordinary and telling concession, ‘do not contest that the historical background from the original enactments of 1877 and 1899 are indefensible. Defendants further do not contest that the law currently impacts African-Americans at a higher rate than it does other citizens,’” Biggs wrote.
“However, Defendants argue that, by adopting a new constitution in 1971, the North Carolina Legislature cleansed the Challenged Statute of its discriminatory taint. … [T]heir argument fails,” Biggs ruled.
The judge also attacked the law’s potential for arbitrary enforcement. “Record evidence demonstrating this inconsistency in District Attorneys’ interpretation and enforcement of the Challenged Statute — that some believed that the Challenged Statute included a requirement of intent while others did not — compels the conclusion that the Challenged Statute permits a ‘standardless sweep’ that allows prosecutors to ‘pursue their personal predilections’ under the Challenged Statute,” Biggs wrote. “The Court now reaches that conclusion.”
The plaintiff groups filed suit in September 2020. They argued that the felon voting law forced them to spend time and money advising felons about their rights. 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 in 2023, less than two months after the NC Supreme Court rejected a challenge of the state’s felon voting restrictions in April 2023.
Plaintiffs in a separate case called Community Success Initiative v. Moore had challenged felon voting restrictions — § 13-1 — 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 the November 2022 election.
The state’s highest court overruled lower courts five months later.
“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.”
The post Federal Appeals Court skeptical of state’s arguments in NC felon voting case first appeared on Carolina Journal.