Featured photo: Stanton Jones, an attorney for the plaintiffs seeking to retain a lower court’s ruling that people with felonies can vote once they are no longer incarcerated. (Photos from the NC Supreme Court livestream)

This article was originally published by Bolts and NC Policy Watch.

They packed the courtroom early, filling so many seats that a line stretched out the door of the building in downtown Raleigh that houses the North Carolina Supreme Court. In years past, many of the onlookers had been in handcuffs, jails and prison cells. Now, they wanted access to the ballot box.

Those in line were told the courtroom was full shortly before oral arguments began. The overflow crowd walked down the street to First Baptist Church to watch the hearing streamed live in a basketball gym. Below the projection screen was a sign with a simple demand: “Unlock Our Vote.”

The state Supreme Court on Thursday held a hearing on whether North Carolinians should have the right to vote while on probation or parole. The case, CSI vs. Moore, is a challenge to North Carolina’s felony disenfranchisement law, which bars people from voting if they are incarcerated and if they are on some form of supervision over a felony conviction.

Last year, a Superior Court in Wake County issued a landmark ruling in favor of the plaintiffs, effectively restoring the right to vote of 56,000 people in the run-up to the 2022 midterms.

The ruling kicked off a rush among civil rights organizers in North Carolina to tell those “second-chance voters” that they had regained their access to the ballot box, NC Policy Watch and Bolts reported in November.  Some of them got to vote in November thanks to the ruling, which made North Carolina one of 24 states where anyone not incarcerated can vote..

But the 2022 midterms upended the political context in North Carolina by flipping the partisan majority of the state Supreme Court. Republicans picked up two seats, shifting the court to a 5-2 Republican majority and significantly diminishing the odds of major civil rights litigation like this lawsuit.

Who’s on the NC Supreme Court?

Chief Justice Paul Newby (R)
Associate Justices: Michael Morgan (D)
Anita Earls (D)
Phil Berger, Jr. (R)
Tamara Barringer (R)
Richard Dietz (R)
Trey Allen (R)

The seven justices are elected and serve eight-year terms. Republicans hold a 5-2 majority.
Click here to access their biographies.

The partisan shift loomed large at Thursday’s hearings. The two new Republican associate justices, Trey Allen and Richard Dietz, each signaled their skepticism toward the lower court ruling that expanded rights restoration.

“The trial court seems to have imposed a remedy that’s beyond the authority of a court because the courts can’t grant the restoration of voting rights to felons,” said Allen. “The Constitution expressly provides that those rights can only be restored in the manner prescribed by law, and the authority to adopt such a law rests with the General Assembly, not with any court.”

“It seems that our constitutional doctrine is pretty clear, that in North Carolina, we don’t try to get into the minds of legislators,” said Dietz, pushing back against the idea that courts should remedy constitutional violations directly. “We declare something unconstitutional and then tell that other branch of government, ‘You need to try again. You enacted a law and it was unconstitutional. Enact one that is not unconstitutional.’”

Their GOP colleagues hinted that they largely shared this attitude. Should they rule to overturn the Superior Court, it could roll back last year’s voting rights expansion.

Kristie Puckett-Williams, an ACLU of North Carolina organizer and a field captain for Unlock Our Vote, said after the hearing that she thought the Republican justices seemed ready to uphold the state’s felony disenfranchisement law and overturn the lower court.

“The central debate is about who has the right to vote,” Puckett-Williams told Bolts and Policy Watch. And the justices during the hearing, she said, “foreshadowed that they are okay with us rolling back to a time in our history where poll taxes and literacy tests were common and standard.”

“I left feeling like they had an agenda.” she added.

Chris Shenton, a fellow at the Southern Coalition for Social Justice, a North Carolina-based organization that advocates for civil rights, said he couldn’t be sure what way the ruling would go. “I think the plaintiffs made a compelling argument that what was going on here is the same thing that happens with these statutes all over the country,” he said. “These laws were passed to disenfranchise Black voters in particular.”

It is not clear when the Supreme Court will issue its ruling.

The Supreme Court is set to hear many other cases that touch on racial justice and civil rights this term. Next Wednesday the court will hear oral arguments in four separate cases involving alleged racial discrimination in jury selection, known as Batson violations. And, with the court’s rightward shift, many criminal justice advocates are concerned the high court will revert to its past practice and not find any Batson violations in cases that it hears.

Other voting rights issues could be at stake, too. Earlier this year, Republicans petitioned the Supreme Court to throw out last year’s opinions on a voter ID law and redistricting — written by the Democratic majority — and grant new hearings. In those cases, the majority had ruled against laws that, even if they appear race-neutral, have “profoundly discriminatory effects.”

Racist or race neutral?

The question at the core of Thursday’s hearing was whether North Carolina’s felony disenfranchisement statute should be struck down because it is racist.

The 65-page order, written last year by Superior Court Judges Lisa C. Bell and Keith O. Gregory, described felony disenfranchisement in North Carolina as a means by which white supremacists in North Carolina suppressed Black citizens’ political power, a tool that still disproportionately affects Black voters. The law, Gregory and Bell wrote, “continues to carry over and reflect the same racist goals that drove the original 19th century enactment.”

In 2020, Black residents made up 22% of North Carolina’s voting-age population, but 45% of those disenfranchised because they were on parole or probation over a felony, according to a study conducted by The Sentencing Project.

Pete Patterson, the attorney representing Republican legislators, argued in Thursday’s hearing that the felony disenfranchisement statute was race-neutral.

The 1840 law that excluded people from the franchise if they had a felony conviction “couldn’t have been motivated by racial discrimination,” he said, since this occurred before Black people were allowed to vote in North Carolina.

The legislature in the 1970s relaxed those restrictions, restoring the voting rights of individuals convicted of felonies so long as they completed their terms of probation or parole, a reform Patterson called a “signature achievement of the Civil Rights Movement.”

Stanton Jones, an attorney for the plaintiffs, defended the Superior Court’s findings. The statute in question might not explicitly mention race, he said, but it still disproportionately affects Black North Carolinians, given disparate outcomes in the criminal justice system involving people of color.

“It is intentionally designed to discriminate against African Americans, the trial court found,” Jones said. “This specific, intentional racial discrimination here was disenfranchising the class of voters, people who have felony convictions but are not incarcerated and living in the community. That was the racist design going back to 1877.”

Jones denounced the argument, made before the trial court, that the law is race-neutral since it treats Black and white residents who have felony convictions in the same manner. “That rationale would justify a poll tax or a literacy test,” Jones said. “A literacy test disenfranchises 100% of white people and Black people who can’t pass the literacy tests.”

Pete Patterson, attorney for the defendant lawmakers, told the court the disenfranchisement statute was “race-neutral.”

The role for the courts

Another core argument for Patterson was that the plaintiffs’ case is moot because the North Carolina constitution explicitly authorizes felony disenfranchisement—a point that at least one of the new GOP justices seemed to agree with.

“This court would be creating tension if it says that felons have a fundamental right to vote, because there’s a provision in the Constitution that says explicitly that they do not,” Patterson said.

Pointing to Article VI of the state constitution, he said people convicted of felonies did not have the right to vote “unless and until their rights are restored in the manner provided by law.”

Jones rebutted Patterson’s take on Article VI, stating that it “does not give the legislature a special license to intentionally discriminate against African Americans.”

The Article authorizes laws pertaining to disenfranchisement and re-enfranchisement, he said, but those laws must comply with another part of the constitution: the Equal Protection Clause. He was joined by Associate Justice Anita Earls, one of two Democrats on the high court, in mentioning the Equal Protection Clause, which has been used to support voting rights claims.

Allen, a new GOP justice, pushed back. “I think we all agree that means that felons don’t have the right to vote merely upon their release from prison or incarceration,” Allen said. “As I understand the constitutional provision, the default is no felon voting, except in the ‘manner prescribed by law.’ Where’s the law that prescribes that felons can vote, or may vote, simply upon being released from incarceration?”

Associate Justice Phil Berger, Jr., echoed Allen’s point, evoking “a specific class of individuals, without regard to race, who have no right to vote under the Constitution.” Berger is the son of the Senate’s Republican leader Phil Berger, who is among the defendants in this case. He declined to recuse himself.

But Daryl Atkinson, another attorney for the plaintiffs, echoed Jones’s appeal for the Supreme Court to protect North Carolinians’ fundamental rights. He stressed that barring people on supervision from voting has meant that people have had to pay off fines and fines, tying the right to vote to how much money someone has.

“Basically what’s undergirding opposing counsels’ arguments is that people convicted of felonies, you can do any manner of things to them to discriminate against them, and it wouldn’t violate the constitution,” he said. “Your honor, that can’t be the way.” 

Daryl Atkinson, another plaintiffs’ attorney, told the justices: ““Folks must still have some constitutional protections under the North Carolina constitution.”

“Folks must still have some constitutional protections under the North Carolina constitution,” he added.

The video feed at First Baptist Church shut off as the justices stood, signaling that the court was in recess.

The plaintiffs and their attorneys would soon join the overflow crowd at First Baptist for lunch. They would celebrate all that they had accomplished since the lawsuit began in 2019 — even if their hard-fought gains might soon be lost.

Corey Purdie, the founder and director of Wash Away Unemployment, an organization that helps people released from prison transition to life in the free world, told NC Policy Watch and Bolts that those in the courtroom came bearing a message.

“It’s showing that we care,” he said, “that people are present, that people are concerned, that people matter.”

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