The winners of a recent trial court ruling on felons’ right to vote want the North Carolina Supreme Court to take up the case. The decision could affect 56,000 felons who have served active prison time.
“Plaintiffs seek discretionary review from this Court given the exceptional importance and urgency of the appeal and the legislative defendants’ motion for a writ of replacement, which has the potential to create immense confusion before the May 2022 primary election and cause substantial and irreparable harm,” according to a court filing by Daryl Atkinson of Forward Justice. Atkinson is an attorney for the plaintiffs in the case titled Community Success Initiative v. Moore.
“Plaintiffs further propose to suspend North Carolina’s appellate procedural rules to the extent necessary to prevent manifest injustice to the North Carolina State Constitution and to the citizens of the State,” wrote Atkinson.
The plaintiffs’ call for action came to the state Supreme Court on Monday, three days after the state’s legislative leaders asked the Court of Appeals to block a lower court ruling in the case.
“The Superior Court issued an injunction that is patently inconsistent with the North Carolina Constitution,” according to the lawmakers’ appeal. “Under Article VI, § 2, any person convicted of a crime cannot vote ‘unless that person is first restored to his rights of citizenship in the manner prescribed by law’. The Superior Court found unconstitutional the “manner prescribed by law”,[…]meaning that felons serving sentences outside prison now have no legal way to regain their right to vote and therefore remain disenfranchised.
“Yet the Superior Court permanently ordered the defendants to allow these individuals to register and vote,” the lawmakers’ court filing continued. “And the court did it on the eve of an election – indeed, in a way that, if not suspended, will insulate the decision from this [Appeals] Review of the Court regarding the upcoming elections.
“This is the second time in this litigation that the Superior Court has overturned state rules on felony emancipation in the run-up to an election,” the lawmakers warned. “The last time this [Appeals] The Court – in a decision later upheld by the Supreme Court – suspended the Superior Court’s attempt to suddenly allow all tens of thousands of felons serving sentences outside of prison to register and vote, instead allowing the State Board of Elections to uphold the stricter rules enacted under the Superior Court’s initial preliminary injunction.
The flurry of new court filings comes in response to a March 28 ruling by a three-judge panel. The panel has been dealing with the case since the 2020 election cycle. In a 2-1 decision pitting the panel’s two Democratic justices against a Republican dissenter, the court declared a 1973 state law unconstitutional.
This man of almost 50 years has specified the conditions for the criminals to regain the right to vote in the State. The law, passed when Democrats controlled both houses of the General Assembly, required felons to serve their full sentences before regaining the right to vote. This included time on probation, parole, or post-release supervision.
Judges Lisa Bell and Keith Gregory rejected the law, known as Section 13-1. “Section 13-1’s denial of voting rights to persons under criminal supervision violates North Carolina’s Equal Protection Clause, both because it discriminates against African Americans and because it denies all persons under criminal supervision the fundamental right to vote,” Bell and Gregory wrote. “Section 13-1’s denial of suffrage to persons under criminal supervision has the intent and effect of discriminating against African Americans and unconstitutionally denies substantially equal voting power on the basis of race .”
Dissenting Judge John Dunlaw came to the opposite conclusion.
“Plaintiffs offered, and the Court received, a myriad of testimonies, statistical analyzes and evidence relating to the impact of the provision of Article VI, Section 2, Part 3 of the Constitution of North Carolina. North (criminal disenfranchisement) on the African American population,” Dunlaw wrote. “Plaintiffs have offered no testimony, statistical analysis, or evidence relating to the impact, if any, of NCGS § 13 -1 on the African American population or any other suspect class.”
The court’s decision came less than two months before the May 17 primary in North Carolina.
“This is an unprecedented attempt by judges to legislate from the bench,” Sen. Warren Daniel, R-Burke, said in a March 30 press release. “Piece by piece, the courts are diminishing the constitutional duty of the legislature to set electoral policy in this state and to seize that authority for themselves.”
“[I]Instead of simply striking down the law, two of the three justices drafted a new law allowing all felons not currently serving an active sentence to register to vote,” Daniel’s press release added. “Simply put, this decision replaces the preferred policy of two county judges with state law.”
“The General Assembly didn’t vote on a new process for getting felons back to vote, nor did the governor. [Roy] Cooper has signed anything into law,” according to Daniel’s statement. “The only people who approved of this policy change are two trial court judges who represent a small fraction of our residents.”
There is no deadline for action by the State Court of Appeals or the Supreme Court.