North Carolina’s law stripping voting rights from convicted felons has shameful roots in racial discrimination, lawyers both for the Republican-led legislature and for a group of liberal challengers agreed in court Monday.
But the two sides disagree strongly on the motivations behind the current version of the law — and specifically as it applies to people who have already finished serving their time in prison, and have rejoined society, but nevertheless remain forbidden from voting.
Felons in North Carolina aren’t forever banned from voting, but they are banned as long as they remain on probation or parole. And that post-prison prohibition is the focus of a lawsuit whose trial began Monday in Wake County Superior Court. Over the course of this week the two sides will make arguments in a case that could ultimately affect an estimated 56,000 people.
That’s only a small portion of the state’s 11 million people, or even the roughly 5.5 million people who voted in last year’s presidential election. But in a tightly contested swing state like North Carolina, 56,000 votes could still make a difference.
The 2020 election for chief justice of the N.C. Supreme Court came down to only about 400 votes. The 2016 governor’s race between Pat McCrory and Roy Cooper came down to 10,000 votes. And in 2008 Barack Obama edged out John McCain in North Carolina by just 14,000 votes.
While Black people don’t make up the majority of the 56,000 people being stopped from voting by this law, they are significantly more likely to be kept from voting because of it. A key argument in this case will be whether that’s intentional.
The challengers, who include the North Carolina NAACP, say it is.
They say that despite some changes, the state’s rules surrounding felon disenfranchisement are largely still the same as the original rules. Those were passed in 1877 — just a decade after the end of the Civil War — and were spearheaded by a state lawmaker who had fought for the Confederacy and had led the lynchings of at least three Black people, said Stanton Jones, a lawyer for the challengers.
Fast forward to today, Jones said, and Black people in North Carolina are 21% of the total voting-age population but 42% of those disenfranchised from voting. So whether in 1877 or in 2021, he said, the law disproportionately stops Black people from voting, “which is no surprise because that’s exactly what it was designed to do.”
Orlando Rodriguez, a lawyer for the Republican lawmakers fighting to keep the rules in place, said they won’t defend the law’s Reconstruction-era history. But they believe it has been significantly improved since then, is not intentionally discriminatory — and is up to the legislature to decide on, not a court.
“Nobody has, and nobody will, try to stand up here and defend the very shameful history” of felon disenfranchisement laws, he said. But he urged the judges in the case to only focus on more recent history and what he called “the trajectory toward improving the ability to have your rights restored.”
Specifically, Rodriguez said, the legislature changed some of the rules in the early 1970s to make the process automatic. Before then, he said, there was a heavy burden on people to petition to get their rights restored, and members of the public were allowed to oppose it.
He said those changes were made with input from some of the few Black politicians in the state at the time and that they improved the system. He also asked the judges not to focus on racism in the 19th century, or on current racial issues in the criminal justice system.
“Those issues matter, to be sure,” he said. “But those issues are not the subject of this litigation.”
But Dennis Gaddy, who runs the Raleigh-based Community Success Initiative that helps people reintegrate from prison back into society, testified on Monday that it’s all related. If people can’t vote, he said, they don’t get involved in the political process, and no one fights for their rights. He questioned why the people he helps should be stopped from voting even after the state has decided they can leave prison and return to normal life.
“To be able to live, to work, to pay taxes, but not to vote, is devastating,” Gaddy said. “… If you’re not able to vote, you’re not really a citizen.”
He added that of the 300 or so clients his group serves every year, around 90% are Black men. And many of them, he said, are confused by the rules and think they’re banned from voting for life after they get out, not just until they finish probation or parole.
What is felon disenfranchisement?
In 11 states, committing some crimes can cause people to lose their right to vote indefinitely, possibly forever. In two states, people never lose their right to vote, even while in prison. But in the majority of states — including North Carolina — the rules fall somewhere in the middle, according to the National Conference of State Legislatures.
Some of those states automatically give people their right to vote back when they leave prison, while North Carolina and others make people wait until they also finish probation and parole. The challengers in this lawsuit effectively want to move North Carolina to the other category, where once people leave prison they get back their right to vote. But GOP lawmakers are fighting to keep the current system in place.
Joining them in defending the law, at least in part, is the North Carolina State Board of Elections — which unlike the General Assembly has a Democratic majority. A lawyer for the elections board, Terence Steed, said it won’t take any stance on the main argument over when or how felons’ voting rights should be restored. But he said it does agree with lawmakers that the current rules, passed in 1973, are better than what the rules had been before the civil rights movement.
“The goal of this legislation was to promote racial equality by restoring voting rights, not undermine it,” Steed said.
The challengers already succeeded in getting a piece of the law overturned at least temporarily, right before the 2020 elections, in a ruling from the same Superior Court judges presiding over the trial that began Monday: John Dunlow of Franklin, Granville, Person, Vance, and Warren counties, Lisa Bell of Mecklenburg County and Keith Gregory of Wake County.
The judges decided in that ruling that people on probation or parole could vote, if they were on it solely because they hadn’t finished paying their court fees or other fines. That appeared to be an unconstitutional poll tax, the judges wrote in a 2-1 ruling — referring to a relic of Jim Crow tactics aimed at stopping Black people from voting.
The News & Observer reported at the time that in ruling on that specific issue, the judges said, “our Constitution is clear: no property qualification shall affect the right to vote.”
But the larger issue of what to do about disenfranchising anyone on probation or parole is just now heating up. The trial is expected to last all week, and it’s still too early to know when the judges might issue a ruling — or if that ruling will be appealed further.
For more North Carolina government and politics news, listen to the Under the Dome politics podcast from The News & Observer and the NC Insider. You can find it at link.chtbl.com/underthedomenc or wherever you get your podcasts.