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Lawyers: Drop criminal voting charges tied to racist law

"The analysis has been made simple in this case by the fact that the law came into being only through the acts of an openly racist legislature," the filing states.

Posted Updated
Early Voting
By
Travis Fain
, WRAL statehouse reporter
BURLINGTON, N.C. — A law used to charge felony probationers for voting in the 2016 elections has more than 100 years of racism behind it, and the charges should be dropped, attorneys who have challenged a number of North Carolina election laws in recent years argued in a brief filed Friday.

The case could end up deeming a section of the state's criminal code unconstitutional, undoing a law put in place in 1901 by politicians who had made no bones about their intent: Keeping black people from the ballot box.

That law has remained on North Carolina's books hardly changed since 1901 and verbatim since 1931, according to attorneys with the Southern Coalition for Social Justice. The group represents five clients charged with voting while still on probation, which is a felony. The filing notes, among other things, that voter intimidation is a misdemeanor in North Carolina, while voting improperly is a felony punishable by up to two years in prison.

The Southern Coalition's brief tracks the law to the late 1800s, when 101 African-Americans were elected to the General Assembly in the decades following the Civil War. The Democratic Party pushed a white supremacy platform to victory in 1898.

The party's handbook from the time declared that the registration of black ex-convicts and underage voters made it necessary to "protect the white voters of the state against having their honest votes off-set by illegally and fraudulently registered negro votes," the filing states.

Today, voting before a felony probation or post-release supervision ends is a crime, even if the voter doesn't know they're not supposed to vote, the filing states. Southern Coalition attorney John Carella said people aren't always told this when they plead guilty and that their removal from the voting rolls often comes after the next election.

"It works in kind of a gotcha fashion because they're not informed, then they're prosecuted for a felony," Carella said Friday.

The brief lays out a number of statistics:

  • Black people made up nearly 53 percent of North Carolina's prison population in 2016, but 21.5 percent of the total population
  • Of the 411 people flagged by the State Board of Elections' 2016 audit as having voting before their supervised release was up, about 68 percent were black
  • Of the 12 people indicted for this in Alamance County, where the coalition is making its case, nine are black

"In the year 2018, the law imposing a potential felony conviction for the act of voting while ineligible due to a criminal conviction functions exactly as the 1901 legislature intended: as a tool to punish, suppress and discourage voting by African-Americans in North Carolina," the brief states.

Carella said he hopes the court will declare the statute unconstitutional, dismissing charges against five defendants the coalition represents and setting a precedent that would stop other prosecutions.

District attorneys in a number of counties have already declined to prosecute people flagged by the State Board of Elections' 2016 report, he said.

The Alamance County District Attorney's Office didn't immediately respond to a request for comment Friday.

Carella said none of the coalition's five clients were incarcerated on the charges that eventually led to their illegal voting, but served probationary sentences. He also said they weren't removed from the state's voting rolls before the 2016 election.

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