The North Carolina Supreme Court heard oral arguments February 2, 2023, in CSI v. Moore, a voting rights case that will determine whether people with prior felony convictions who are not incarcerated may keep their right to vote.
Voting already was expanded to 56,000 North Carolinians with prior felony convictions in 2020 after a trial court ruling found a 1973 state law unconstitutional because it made people convicted of a felony subject to property qualifications in order to vote. This decision made North Carolina one of 24 states where anyone not incarcerated can vote.
“Allowing the people in our communities with felony records to have their voices be heard is an important part of the democratic ideals that we should aspire to, and their voices should not be silenced,” said Mitchell Brown, Senior Counsel for Voting Rights at Southern Coalition for Social Justice (SCSJ). “It is my hope that the North Carolina Supreme Court does the correct thing and upholds the trial court’s decision.”
SCSJ is in solidarity with the Community Success Initiative, the North Carolina State Conference of the NAACP, Justice Served NC, Wash Away Unemployment, and other Plaintiffs in the case. The issue in CSI v. Moore not only involves who has a right to cast a ballot; moreover, as Dennis Gaddy, the founder and Executive Director of Community Success Initiative, has said, this fight is about “fully acknowledging the humanity and citizenship of justice-involved individuals.”
Second-chance voters and advocates listened intently as attorneys made their oral arguments for the case. Some sat in the packed courtroom and others watched via livestream at First Baptist Church down the block. The Plaintiffs argued that while the North Carolina Constitution authorizes the legislature to enact laws pertaining to disenfranchisement and re-enfranchisement, those laws must comply with the Equal Protection Clause.
Daryl Atkinson, counsel for the Plaintiffs, argued that barring people on supervision from voting means people who were otherwise eligible have had to pay off fines and fees before they could vote. This requirement ties the right to vote to how much money a person has. When the framers of North Carolina’s 1868 Constitution removed the property qualification for voting, they envisioned wealth would not be an exclusionary factor to being a full citizen.
While defendants claim the 1973 statute is race-neutral, Stanton Jones, also counsel for the Plaintiffs, pointed out that poll taxes and literacy tests were also race-neutral on their face, but context matters, and the challenged statute disproportionately affects Black people because of disparate outcomes in the criminal legal system. These disparities arise from discretionary decisions ranging from the charges an individual faces, the plea deals they are offered, the sentences they receive, and the requirements they must satisfy to have their rights restored.
There is important historical context of felony disenfranchisement in North Carolina to the questions North Carolina Supreme Court Justices are considering. In the 1860s and prior, the only persons disenfranchised in North Carolina due to criminal convictions were those convicted of “infamous” crimes. Former Confederates engaged in a widespread campaign to convict African Americans of “infamous” crimes immediately after the end of the Civil War in 1865, whipping them as punishment. This campaign was just one tool used to disenfranchise Black voters.
In 1868, North Carolina ratified a new Constitution in order to rejoin the union; this Constitution abolished slavery and provided for “universal male suffrage,” eliminating property requirements as a condition of being eligible to vote. Notably, they did not include any provision for the disenfranchisement of people formerly convicted of felonies. White supremacists reacted violently to the expansion of suffrage, retaliating against elected officials and intimidating African American voters. Their indignation only worsened when Congress ratified the 15th Amendment in 1870.
In response, North Carolina’s General Assembly adopted a Constitutional amendment in 1876 that disenfranchised individuals convicted of ANY felony. As Jones emphasized in his arguments, the intention of this amendment was never to prohibit people with felony convictions from ever voting again. Rather, the intent of the amendment was to authorize legislators to prescribe the manner in which the right to vote is restored. Since adopting the amendment, the legislature has specified qualifications that permit rights restoration for some justice-involved citizens.
General Assembly member John Henderson chaired the North Carolina House committee that prepared the legislation that would implement the amendment. He was a staunch supporter of Jim Crow laws and presided over the lynching of three African Americans. The General Assembly subsequently enacted legislation in 1877 that implemented felony disenfranchisement in the broadest scope possible rather than for a subset of people convicted of serious or relevant crimes.
The 2022 Midterm Elections flipped the partisan majority and significantly altered the political context for CSI v. Moore and other NC Supreme Court cases. Associate Justices Michael Morgan and Anita Earls pushed back against the defendants’ argument that the race-neutral language of the bill moots the disparate impact.
Justices on the other side of the aisle expressed skepticism toward the lower court ruling and questioned the authority of the court to impose the remedy expanding rights restoration. Those justices include newly elected Associate Justices Trey Allen and Richard Dietz, as well as Associate Justice Phil Berger Jr. Berger is the son of one of the defendants in the case, Senate president pro tem Phil Berger, and he declined to recuse himself from the case.
Jones discussed the possible remedies in the case and pointed out that the courts have a precedent of “leveling up,” rather than limiting themselves to striking out certain words of the statute. Striking out certain words would result in denying coverage to everyone, whereas leveling up would expand the statute to cover an improperly excluded class.
The NC Supreme Court’s is expected to issue a decision in this case this summer.