Voting Pexels Pic Shakita Norman lives in Wake County, works, pays taxes and has five children in public school. She told a three-judge, Superior Court panel in August 2021 that she wants a voice in North Carolina’s democracy.

But, like more than 56,000 other North Carolinians, she is being held in limbo as yet another election begins, waiting to see whether she will have the right to vote.

On Monday, those judges declared the North Carolina law governing when the state restores the right to vote to people previously convicted of felonies to be racist and in violation of the Free Elections and Equal Protections clauses of the state constitution.

“North Carolina’s elections do not faithfully ascertain the will of the people when such an enormous number of people living in communities across the State — over 56,000 individuals — are prohibited from voting,” wrote Judges Lisa Bell and Keith Gregory, who ruled in a 2-1 majority opinion.

Disenfranchisement does not advance a valid state interest, the judges wrote, and in fact, harms the state by preventing equal access to the vote.

“Denial of the franchise to persons on felony supervision harms individuals, families and communities for years even after such supervision ends,” the judges wrote.

But legal confusion and a pending appeal by state legislative leaders, House Speaker Tim Moore, R-Cleveland, and Senate President Pro Tempore Phil Berger, R-Rockingham, may still keep those residents off the voter rolls.

The N.C. State Board of Elections cited confusion from a previous court order made during a preliminary stage in the case when it told county boards to keep voter registration requests from people on probation, parole or post-release supervision in an incomplete queue while lawyers seek clarification from the courts.

Neither Moore’s nor Berger’s offices replied to questions for this story, and their private attorney did not respond to a voicemail. But that attorney notified the Department of Justice, which formerly represented the legislators and still represents the Board of Elections, that the legislators intend to appeal.

Still, the groups suing to change the law announced that they are out helping people who, under Monday’s ruling, are newly enfranchised.

“We’re not casually treating it as, ‘Well, I’ll go register to vote,’” said Dennis Gaddy, a plaintiff in the case and the executive director of the Community Success Initiative, which helps people reenter society after incarceration. “We’re having a sit-down, face-to-face conversation.”

The situation is confusing, but there’s also a possible opportunity, Gaddy said.

In August 2021, when the same judges issued a preliminary injunction allowing the same group of people to vote, legislative defendants appealed, and higher courts blocked the injunction. But still, the higher courts allowed the people who had already registered to stay on the voter rolls.

Even if the Court of Appeals blocks Monday’s ruling, Gaddy said there’s a chance the people who requested voter registration between now and then could be allowed to vote.

146 years of discrimination
In 1876, white North Carolinians amended the state Constitution and included a felony disenfranchisement clause that said no one convicted of a felony will have the right to vote until the state restores that right. The next year, the state legislature put a law in place describing how the right to vote is restored.

Monday’s opinion, 146 years later, said both the amendment and the implementing law target Black North Carolinians with racial intent. The judges also concluded that racial intent survives today, taking a disproportionate amount of political power away from Black communities across the state.

North Carolina’s three Black legislators in 1973 tried to give people a full reinstatement of rights upon release from jail or prison. But those efforts were watered down by their 167 white counterparts, the judges found.

Lawyers for the state Department of Justice agreed that the 1876 laws were racially motivated, but the 1973 rewrite was not, and therefore the current law should be valid. Judges Bell and Gregory disagreed.

“The legislature cannot purge through the mere passage of time an impermissibly racially discriminatory intent,” they wrote.

Definition of racial disparity
More white than Black people reside in North Carolina, more white people are in prison, and more white people are on post-release supervision. But the percentage of white people drops at each stage, and the percentage of Black people goes up, meaning that Black people are more harmed by disenfranchisement relative to the total population.

“African American men are 9.2% of the voting-age population, but 36.6% of those denied the franchise,” according to the majority opinion.

“In comparison, White people comprise 72% of the voting-age population, but only 52% of those denied the franchise. These numbers are the very definition of a racial disparity.”

Both the sheer scope of disenfranchisement and the racial disparity violate the state constitution, Bell and Gregory wrote. They pointed to the 2018 elections, which showed “16 different county elections where the margin of victory in the election was less than the number of people denied the franchise due to felony supervision in that county.”

In several of those elections, the number of disenfranchised voters was several times greater than the margin of an election, such as in Beaufort County, where 457 people were denied the vote under the law and 63 votes decided a Board of Commissioners race. Of those disenfranchised could-be voters, 253 were Black.

“Denial of the franchise to people on felony supervision reduces political opportunity and the quality of representation across entire communities in North Carolina,” according to the majority opinion.

The order describes a standard legal test showing the state could keep its disenfranchisement law if it served a legitimate government purpose. But, the judges decided, defendants “failed to introduce any evidence” that the law “serves any valid state interest today.”

The dissent, and consequences of an appeal
Bell is an unaffiliated judge based in Mecklenburg County, and Gregory is a Democratic judge based in Wake. Judge John Dunlow, Republican from Granville, dissented.

In his opinion, the plaintiffs wanted to challenge the constitutional provision that takes the right to vote away from people convicted of felonies, not the law that describes how they get it back. This is in line with defendants’ arguments.

Should the appellate court back that argument, the plaintiffs’ only recourse would be to change the implementing law through an act of the legislature, the same one attempted in 1973.

Dunlow also disagreed with the majority opinion on how the Free Elections Clause is applied to elections.

All the judges agree that the clause’s purpose is to “faithfully ascertain the will of the people.” But where Bell and Gregory define “the people” as all North Carolina citizens, Dunlow has a narrower vision.

“The people whose will is to be faithfully ascertained are the persons who are lawfully permitted to vote in North Carolina elections,” Dunlow wrote.

Both majority and dissenting opinions help higher courts review a case. The Court of Appeals is controlled 10-5 by Republican judges. Though the state Supreme Court is currently 4-3 Democrats to Republicans, two Democratic seats are up for election in 2022 and the court may flip.

Dunlow’s dissent, if picked up by higher courts, could significantly limit the state constitutional protections against discriminatory voting laws.

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