NC Supreme Court Upholds Law Barring People on Probation and Parole from Voting
While state courts have been skeptical of judicial remedies, momentum for legislative responses is growing.
On April 28, the North Carolina Supreme Court overturned a lower court decision that had struck down the state’s felony disenfranchisement law for voters who are no longer incarcerated. This decision, Community Success Initiative v. Moore, will block from the ballot box an estimated 56,000 people whose right to vote had been restored by the lower court ruling.
North Carolina is not alone in shutting the door to judicial remedies for felony disenfranchisement: to date, advocates have found more success dismantling such policies in the court of public opinion than in actual court.
Federal courts have largely rejected challenges to felony disenfranchisement policies since Richardson v. Ramirez, a 1974 case where the U.S. Supreme Court ruled that Section 2 of the 14th Amendment grants states an “affirmative sanction” to deny voting rights to people convicted of crimes, even after they complete their sentences. After Richardson and a number of other federal court decisions rejecting challenges to criminal disenfranchisement laws, many advocates thought that state constitutions offered a more viable avenue for chipping away at disenfranchisement provisions.
Last year’s lower court decision from North Carolina seemed to affirm that strategy. A three-judge panel ruled after trial that North Carolina’s statute that bars voting by people on probation, parole, or other supervision “discriminates against African Americans and denies everyone on supervision the fundamental right to vote.”
Evaluating the law under the North Carolina Constitution’s Equal Protection Clause, the trial court considered the evidence of the policy’s racially discriminatory intent — from Reconstruction-era demands for “purity of the ballot box” to the adoption of the current policy in the 1970s — and concluded that the legislature could not purge that intent “through the mere passage of time.” The lower court also determined that the legislature’s decision in the 1970s to continue to deny the right to vote to people with felony convictions living in the community was also motivated by racism. Describing the lawmaking process in the 1970s, one legislator explained that they “understood at the time that [they] would have to swallow the bitter pill of the original motivations of the law — the disenfranchisement at its core was racially motivated — to try to make the system practiced in North Carolina somewhat less discriminatory.”
But the North Carolina Supreme Court disagreed. The court found that the lower court failed to presume “legislative good faith” when evaluating the statute’s constitutionality. And the high court took issue with the lower court’s finding that the disenfranchisement system produced a disparate racial impact. Perversely, the court’s primary critique rested on the fact that racial bias pervades the state’s criminal justice system. The court acknowledged that “it may be that the only practical way to avoid this kind of ‘disparate impact’ is to allow all felons to vote” — including those who are incarcerated. But the court argued that doing so would fail to give effect to the North Carolina Constitution, which disqualifies people convicted of felonies from voting unless their rights have been restored in the manner prescribed by law. The high court also overruled the lower court’s earlier summary judgment ruling that conditioning rights restoration on the repayment of court-imposed debt created an unconstitutional wealth classification.
Writing in dissent, Justice Anita Earls predicted that the court’s decision will be repudiated “because it seeks to justify the denial of a basic human right to citizens and thereby perpetuates a vestige of slavery.” Earls argued that the “presumption of good faith” does not require lower courts to use those magic words and that judicial deference to the legislature is not justified after a finding of discriminatory intent. She also forcefully rejected the majority’s conclusion that the government has a legitimate interest in conditioning voter eligibility on the repayment of court-imposed debts. The majority concluded that the “the General Assembly could reasonably have believed . . . that felons who pay [such costs] are more likely than other felons to vote responsibly.” Earls argued that this argument “unintentionally admits” what North Carolina’s law has aimed at all along: “to inhibit certain individuals whom the General Assembly perceived as undesirable from voting.”
The North Carolina Supreme Court decision comes on the heels of a ruling by the Minnesota Supreme Court in February rejecting a challenge to the state’s felony disenfranchisement policy. In Schroeder v. Simon, the Minnesota high court concluded that the state constitution does not require rights restoration to people serving a felony sentence and living in the community. The court further found that the record was insufficient to show whether Minnesota’s statutory scheme for rights restoration harmed Black and Native American Minnesotans more than the state’s constitutional provision that created the felony disenfranchisement policy to begin with.
However, the Minnesota court noted in its concluding paragraph that “the Legislature retains the power to respond to those consequences.” The state legislature responded in short order, passing a law just weeks later to restore voting rights to an estimated 50,000 Minnesotans.
Minnesota’s experience reflects a broader trend. In recent years, advocates for rights restoration have found more success with their representatives and fellow citizens than with the courts. Like Minnesota, in the last five years, Arizona, Connecticut, Louisiana, Nevada, New Jersey, New Mexico, and New York have enacted laws to restore voting rights to at least some people with felony convictions in their states. In 2018, Florida voters enacted a constitutional amendment by ballot initiative to restore voting rights to more than 1.4 million disenfranchised Floridians. (Notably, Florida courts and the state legislature limited the reach of that constitutional amendment by imposing a pay-to-vote requirement.) And in 2020, California voters adopted a statewide ballot measure that restored voter eligibility to as many as 50,000 Californians.
Even as state courts have shut down legal challenges to felony disenfranchisement, popular momentum to cast off this Jim Crow–era policy continues to build.
Eliza Sweren-Becker is a counsel at the Brennan Center for Justice.