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Federal judge rules DAs can’t prosecute disenfranchised probationers for mistakenly voting


Federal judge rules DAs can’t prosecute disenfranchised probationers for mistakenly voting

Apr 23, 2024 | 12:06 pm ET
By Kelan Lyons
Federal judge rules DAs can’t prosecute disenfranchised probationers for mistakenly voting
(Photo by Stephen Maturen/Getty Images)

North Carolina district attorneys cannot prosecute people on supervision for felony convictions if they mistakenly cast a ballot before regaining their right to vote, a federal judge ruled Tuesday.

The reason, according to a ruling issued by District Judge Loretta C. Biggs: the underlying law was enacted to discriminate against Black North Carolinians — and continues to do so today. Plus, that law does not give prosecutors clear standards to prevent it from being enforced arbitrarily, giving district attorneys the ability to seek criminal charges based on “their personal predilections.”

The ruling is the latest development on felony disenfranchisement in North Carolina. Last year, the conservative state Supreme Court ruled that it was constitutional to delay the restoration of a person’s voting rights until they completed the terms of their probation, parole or post-release supervision. That ruling reversed a trial court’s decision that had restored the voting rights of roughly 56,000 people who were disenfranchised because they hadn’t yet completed the terms of their supervision.

Biggs’ ruling is separate from the state Supreme Court’s decision because it deals with a different law. People on probation or parole for a felony will still need to complete the terms of their supervision before they can vote in North Carolina. But because of Biggs’ ruling, if those individuals unknowingly or mistakenly cast a ballot before their voting rights are restored, district attorneys cannot prosecute them.

“A racially discriminatory law is now a relic of the past. It’s sad that in today’s society we still have laws on the books that specifically discriminate against Black voters, even if some people may choose to ignore this reality,” Melvin Montford, executive director of the North Carolina A. Philip Randolph Institute, said in a statement. “The state of North Carolina can no longer enforce this discriminatory law and it’s no longer a tool for district attorneys and the State Board of Election to arbitrarily use.”

Per state law, it is a felony for someone disenfranchised because of a criminal conviction to cast a ballot before their voting rights are restored. Those who violate that statute could be imprisoned for up to two years.

Attorneys for the Southern Coalition for Social Justice and Simpson Thacher & Bartlett LLP challenged the law in federal court. The statute, first enacted in 1877, was intended to disenfranchise Black voters and continues to disproportionately impact Black citizens, the lawyers argued, violating the U.S. Constitution.

The North Carolina legislature enacted those changes to “restore the ‘purity of the ballot’ and discriminate ‘against certain characteristics of [the Black] race,’” Biggs’ ruling notes.

Attorneys for the State Board of Elections said the historical background of the law is “indefensible,” which Biggs called “an extraordinary and telling concession.”

The state contended that a new constitution adopted in 1971 “cleansed the Challenged Statute of its discriminatory taint.” Biggs rejected that argument.

That constitution expanded the scope of felony disenfranchisement to remove the right to vote of people convicted of felonies not just in North Carolina, but in other states as well. Even if the 1971 constitution did “cleanse” the underlying law, Biggs wrote, Black voters are still disproportionately impacted by the law.

“Far from completely curing the law, by expanding the scope to include people convicted of felonies in other states, the constitutional amendment has presumably disenfranchised more Black people,” wrote Biggs.

The discrimination continues today. Roughly 20% of North Carolinians are Black, but 63% of people investigated between 2015 and 2022 for violating the underlying law were Black.

“Judge Biggs’ decision will help ensure that voters who mistakenly think they are eligible to cast a ballot will not be criminalized for simply trying to re-engage in the political process and perform their civic duty,” Mitchell D. Brown, Senior Counsel for Voting Rights at Southern Coalition for Social Justice, said in a statement. “It also makes our democracy better and ensures that North Carolina is not able to unjustly criminalize innocent individuals with felony convictions who are valued members of our society, specifically Black voters who were the target of this law.”

As of Tuesday there were 11,644 people in North Carolina out of prison on parole or post-release supervision, and 63,896 people on probation. Not all of those individuals are on supervision for a felony.

Click here to read Biggs’ ruling. And click here to read an in-depth story written in collaboration with Bolts about felony disenfranchisement in North Carolina.