Challenge to NC felon voting rules, argued in federal court Tuesday, could affect 2024 elections
North Carolina voting rights advocates were in federal court Tuesday, trying to block a law related to felons’ voting rights ahead of the 2024 elections.
They want to make it so that people who illegally register to vote while on probation or parole for a felony can only be charged if they knew what they were doing was wrong. They’re not trying to get the entire felon voting ban thrown out; they just want more leeway for people who register to vote when they shouldn’t have — a felony on its own.
Someone shouldn’t face yet more charges and further loss of voting rights simply because they tried to participate in the democratic process, especially due to large racial disparities in who gets convicted of felonies in North Carolina’s justice system, the advocates say.
Tuesday’s court hearing came as North Carolina’s rules for felon voting disenfranchisement have changed numerous times in recent years. People on felony probation were banned from voting for well over a century, but then were allowed to vote in 2022, and now are yet again no longer allowed to vote. The air of confusion around the rules has made even people who are eligible to register to vote scared to do so, according to Jeff Loperfido, a lawyer for the Southern Coalition for Social Justice.
“The fact you can be prosecuted because of a mistake — or because you were told the wrong information by an election official — makes it all the more challenging to reassure someone who’s on the fence about registering to vote,” Loperfido said during a news conference Monday.
Magistrate Judge Joe Webster, who said Tuesday he'll issue a ruling in the coming days, questioned the premise of why prosecutors should have to prove people knew they were breaking the law. He quoted the common legal philosophy, with roots dating back several thousand years, that "ignorance of the law is no excuse."
State officials agreed. But the voting rights advocates argued that while Webster is right about that, this specific law is too vague and inconsistently enforced for regular people to be able to know whether they're breaking it.
State leaders are trying to stop the lawsuit, which is being fought by SCSJ on behalf of voting rights groups Action NC, and the A. Philip Randolph Institute. Terence Steed, a lawyer for the state, said Tuesday that they fear changing the rules again could actually lead to even more confusion, rather than helping to alleviate the confusion.
The State Board of Elections acknowledges that the felon voting ban was explicitly racist when North Carolina lawmakers first approved it 150 years ago. But they say it’s not racist anymore. They also say they need the ability to enforce the ban — and that furthermore the ban isn’t complicated enough to warrant the less strict rules that voting rights advocates are asking for.
The law says ex-felons don’t automatically regain the right to vote once they leave prison; they first have to finish probation, parole or any other part of their sentence.
State officials say that’s simple enough that the courts don’t need to get involved: “The mere possibility that some person may misunderstand that their conduct is criminal, or may forget, does not make a criminal law unconstitutionally vague,” state elections officials wrote in one court filing.
They also point to a new law, passed earlier this year as Senate Bill 747. It contains numerous, wide-ranging changes to election laws — and faces other lawsuits of its own from critics who call the changes voter suppression.
But in addition to those more controversial pieces of that new law, it also tweaks the language related to ex-felons who register to vote. Essentially, it makes it so that starting in January the rules will be exactly what the voting rights advocates are asking for now: People will only be prosecuted for illegally registering to vote if they knowingly broke the law. The State Board of Elections suggested the change and lawmakers took them up on it.
But for voting rights advocates there is lingering concern that despite that recent change, prosecutors will still be able to move forward with cases against people who improperly registered in past elections. And more broadly, they say, they're still concerned by the law’s racist history and continued effects.
Felon voting ban rooted in racism
North Carolina started banning felons from voting soon after the Civil War ended and formerly enslaved Black people gained the right to vote.
Once the law passed, North Carolina historians have testified in other recent lawsuits, police would often arrest Black people en masse over dubious allegations or minor violations that had been turned into felonies — not only to stop them from voting, but also to force them back into de facto slavery. While the 13th Amendment outlawed involuntary labor in most of American society, it exempts prisons.
“This law was passed with the explicit intent to disenfranchise Black voters,” said Mitchell Brown, another SCSJ attorney. “If you look at the time period when it was passed, it was during Reconstruction after federal troops had left North Carolina. And so you have North Carolina trying to redeem the white power structure. And trying to subjugate black voters, black people, back into slavery.”
The law has changed somewhat since then. The process to regain voting rights after leaving prison was made less arbitrary in 1971, when North Carolina rewrote multiple discriminatory parts of the state constitution as a response to the Civil Rights movement.
And a series of court battles over exactly when people should get their rights back has led to minor victories for voting rights advocates, notably a 2020 ruling that ex-felons can no longer be blocked from voting simply for owing unpaid court fines or fees.
Advocates also originally succeeded in striking down the broader rule against felons remaining unable to vote while on probation or parole. They argued that once someone has left prison and rejoined society, they should be able to vote. But in February, after Republicans took back control of the state Supreme Court, one of their first acts was to overturn that ruling and reinstate the ban on people voting until after finishing probation or parole.
This new lawsuit, however, is in federal court, in the Middle District of North Carolina. If the challengers succeed in blocking prosecutors from charging people they can’t prove knowingly broke the law, it could hypothetically make tens of thousands of eligible North Carolina voters with prior records more willing to register to vote, Loperfido said — an outcome his clients see as a win for democracy at large.
“It is very common for them to encounter people who tell them that the fear of prosecution makes it not worth the risk to get involved in the democratic process,” he said.
Voter fraud rare, unevenly prosecuted
Voters who cast a ballot illegally can be charged under the state’s voter fraud laws.
In recent years North Carolina has had a mixed record when deciding who to charge, or not charge, with voter fraud — decisions that are up to local prosecutors, not statewide officials.
In Alamance County the district attorney, a Republican, charged 12 people with voting while on probation or parole in the 2016 presidential election. Nine of the 12 were Black, and at least several had those felony charges dismissed following national media attention on the arrests.
In that same election, North Carolina officials also discovered a single case of in-person voter impersonation: A Catawba County woman cast two ballots, one in her dead mother’s name. She admitted to it when caught, telling investigators she didn’t know it was illegal and that she was trying to fulfill the dying wish of her mom, whom she called “a tremendous Donald Trump fan.”
In that case the local prosecutor, also a Republican, declined to pursue charges — citing the exact same standard the voting rights advocates are now asking for in felon voting cases, that even though the woman did break the law, she didn’t realize it.
And while state officials oppose the lawsuit seeking to force that standard statewide, they have been clear that voter fraud in general is not a major concern to election integrity in North Carolina — whether it’s voter impersonation, felons casting ballots or any other type of fraud.
“While illegal voting does occur, it is exceptionally rare and does not occur in an amount that would call into question the results of the elections,” the state elections officials wrote in one of their legal filings in this case.
