A Knotty Felon Voting Rights Case Reaches the Court of Appeals

As politicians and election law advocates sort through the long-term implications of Jefferson Griffin’s failed effort to throw out 65,000 votes in the state Supreme Court race, voting rights advocates might want to turn their attention to a case before the U.S. Fourth Circuit Court of Appeals.

A three-judge panel there seems poised to strike down a Reconstruction-era law that authorizes North Carolina district attorneys to charge convicted felons with a crime if they mistakenly vote before their voting rights are restored.

But like much these days when it comes to election law in North Carolina, the case is a bit knotty, which the appellate judges were quick to point out.

The A. Philip Randolph Institute, an AFL-CIO affiliated organization of Black trade unionists, and Action NC, a non-profit fighting social and economic inequality, filed suit in federal court in 2020 arguing that the law passed in 1877 is unconstitutional. The Southern Coalition for Social Justice and New York-based Simpson Thacher and Bartlett, which are representing the two groups, contend the law was adopted with an intent to discriminate against Black voters.

In North Carolina, individuals convicted of felonies lose their right to vote until their sentences are completed. This has at times caused confusion for those who have been released from prison but remain on probation or parole.

U.S. District Court Judge Loretta Biggs, an Obama appointee, ruled last year that the law was enacted with discriminatory intent, violating the equal protection and due process clauses of the 14th amendment. But before Biggs struck it down, the General Assembly amended the law so criminal charges only could be filed if someone knowingly violated the law. That went into effect January 1, 2024.

But as the Fourth Circuit judges pointed out last week, lawmakers did not repeal the 1877 law as part of that amendment. Now there are essentially two conflicting laws on the books—one that governs actions before January 1, 2024 and a second that has different regulations for voting felons after that.

Terrence Steed, special deputy attorney general in the state Department of Justice representing the state Board of Elections, contended that the old law is moot—but that Biggs’ order striking it down nonetheless should be overturned.

Judge James Wynn, also an Obama appointee, told the attorneys for the state that he found their arguments befuddling. “You wouldn’t have a problem with the previous law if it had just been repealed,” Wynn said. “And your contention is, ‘Well, it’s not going to be enforced anyway.’ Is that true?”

“There’s no evidence in the record that it is,” Steed responded.

Judge Pamela A. Harris, another Obama appointee, was just as confused. “Then can I ask why you’re here?” she asked. “I’ve just never seen a case like this where the judge enjoins an obsolete law. Why do you care? Why are you here defending that law if you don’t plan to enforce it?”

Elizabeth Curran O’Brien, a special deputy attorney general representing the state’s district attorneys, acknowledged that the statute that took effect in January 2024 left room to bring cases under the old law, even if there is no evidence that prosecutors planned to do so.

“I think that the way the statute was amended provides that those prosecutions could occur,” O’Brien said.

So the old law isn’t moot after all? the judges asked.

“That’s the point we’re making,” Wynn said. “You’ve just admitted, you just presented why it’s not moot. You say they could occur, and so if they can occur, if we don’t uphold the district court, then essentially, you’re saying you should have two statutes you can prosecute under—one for crimes permitted before the so-called new law, which is just the amendment of it, and those after it because that’s not retroactive. Is that your position?”

O’Brien did not directly answer the question other than to reiterate that she “has no evidence that anybody wants to do that.”

The plaintiffs’ attorneys contend that all this confusion over the status of the 1877 law is exactly why it is important to uphold Biggs’ ruling and throw the old law out. Before that ruling, there had been 200 cases under review for criminal charges. Although none resulted in charges, they still could unless Biggs’ decision stands.

The plaintiffs argue the ambiguity could have a chilling effect on voters worried about mistakenly incurring a felony. 

“I think in some ways the need to strike down this law on the voter confusion issue is even stronger today than when we first brought the case because you’ve got these two confusing laws,” said Jonathan K. Youngwood, an attorney with Simpson, Thacher and Bartlett.