North Carolina’s legislators were motivated by racist intent when they passed a state constitutional provision in 1875 that banned people from voting when convicted of a felony, lawyers for civil rights groups and for the state legislature agreed in court on Monday.
“Nobody has and nobody will stand up here and try to defend the very shameful history of using felony disenfranchisement as one of the many tools to suppress the political power of the Black community,” said Orlando Rodriguez, an attorney for the state.
But as a state Department of Justice attorney assigned to represent state legislative defendants, Rodriguez is in the position of defending the state law that governs how long people are stripped of their right to vote and under what conditions they get that right back.
The civil court case, CSI v. Moore, does not challenge the felony disenfranchisement provision, which is still in the North Carolina Constitution today, but rather the state law that extends that disenfranchisement even after people are released from prison.
Roughly 55,000 people in North Carolina are barred from voting because they have been convicted of a felony but either were sentenced to a term of probation outside of prison or are out of prison on post-release supervision or parole.
The civil rights and prisoner reentry groups bringing the case argue that keeping people from voting even after release from prison is illegal under different provisions of the state’s constitution, namely the Free Elections Clause.
The trial, held in front of a three-judge panel in Wake County Superior Court, will last all week. It is too early to know when the judges will issue a ruling or if the ruling will be appealed.
When the plaintiffs, including the state NAACP and represented by Forward Justice, filed the case in late 2019, they hoped for a decision before the 2020 elections. Now, the clock is ticking to see who will have the right to vote in the March 2022 primary elections.
The lawsuit hinges on a single state statute, N.C.G.S. 13-1, which the defendants call the “reenfranchisement statute” and the plaintiffs call it the “disenfranchisement statute.”
The difference in terms makes clear that the parties take opposing views of what that law actually does.
It is the constitutional provision passed in 1875 that bars people who are convicted of felonies from voting, Rodriguez argued in court on Monday. The law the plaintiffs challenge cannot disenfranchise people convicted of felonies, the defense argued, because it is the only place in state law that describes how and when they get the right to vote again.
According to the defense, the plaintiffs have a problem with the felon disenfranchisement provision in the state constitution, which is an entirely different legal question not before the court.
Rodriguez agreed to several parts of the plaintiffs’ arguments, including that felon disenfranchisement was created to specifically target Black North Carolinians, that Black North Carolinians are disproportionately prevented from voting and that the state disenfranchises enough people to potentially sway local and statewide elections.
But all of that, he said, was irrelevant to the case at hand. Rodriguez, who was joined in the defense by lawyers representing the N.C. State Board of Elections, argued for a “narrower history” that only looked at reforms to state law in the 1970s that “clearly indicate a trajectory toward improving the ability to have one’s rights restored.”
The plaintiffs disagree and expressed an opposite view of the state’s law.
They called on Vernon Burton, a Clemson University history professor and expert on race and politics in post-Civil War South, to describe the legislative history of N.C.G.S. 13-1, modified from its original version in 1971 and 1973.
The revisions were championed by the only Black lawmakers in the legislature at the time, Henry Michaux Jr., Henry Frye and Joy Johnson. They originally wrote the law to allow people to vote as soon as they were released from prison, according to Burton’s historical analysis and statements Michaux made for this case.
White lawmakers modified the bill to extend disenfranchisement through post-release supervision and parole and were driven by a racially discriminatory intent, Burton said. Rodriguez challenged this assertion.
Based on this history as presented by Burton, plaintiffs argued that because the law does not grant the right to vote immediately upon the release from prison, its effect is to extend an inherently racist system.
Plaintiffs leaned on history to argue that the 1970s reforms to the racist scheme of felon disenfranchisement still carried racist intent and is therefore unconstitutional under state law.
“The story of felony disenfranchisement in this state is a story of violent white supremacy,” said Stanton Jones, an attorney for the plaintiffs, during his opening statements.
He described a through-line from the public whippings of Black men in the 1860s, which were used to preemptively disenfranchise them from voting to the racially motivated politics of the 1970s.
Because white legislators in the 1970s knew the racist history and effect of felon disenfranchisement, according to the legal testimony of experts, and they extended disenfranchisement even after release from prison, the law was written discriminatory intent, Jones argued.
If it was passed with discriminatory intent, it is unconstitutional.
Insight into the judges’ minds
The three-judge panel has already made some rulings on the case. The current trial is where the parties are presenting all their evidence, but back in September 2020 the plaintiffs asked for a preliminary injunction and summary judgment on the case.
Those kinds of legal maneuvers are used when parties to a case believe that their arguments are so sound that a full trial is not needed to decide the issues.
The judges agreed, in a 2-1 split. Judges Lisa Bell and Keith Gregory, an unaffiliated judge and a Democratic judge, respectively, agreed to part of the plaintiffs’ argument. They ruled that all people barred from the right to vote because they were poor should have their right to vote restored. The group included roughly 5,000 people who were only on post-release supervision for a failure to pay fines and fees.
Bell and Gregory left the door open to the remainder of the plaintiffs’ arguments, stating that they would need to go to trial.
Judge John Dunlow, a Republican, disagreed. He argued that the case should have been ruled in favor of the defendants and dismissed in its entirety.
“No reasonable reading of the plain language N.C.G.S. 13-1 could be interpreted to disenfranchise any person,” he wrote in his dissent.
Defendants closely followed the logic in his ruling in their opening arguments on Monday.
The winning party only needs a majority, not a consensus. With Dunlow’s position already clear, the plaintiffs need to convince both Bell and Gregory, while the defendants need to bring just one of them over to their side.