Let felons vote once they get out of prison, NC lawsuit argues ahead of 2020 elections
Shakita Norman has four children in Wake County public schools and hasn’t been able to go to work since March, due to school going remote as a response to coronavirus.
The 28-year-old would like to advocate for herself and her children by voting in this fall’s elections. But she can’t. She’s on probation.
Norman is one of several people in North Carolina suing over the state’s felon disenfranchisement law, hoping to restore the right to vote to around 60,000 people before the November election.
“I believe that individuals on probation are the people of the community, just like anyone else,” Norman said in an affidavit for the lawsuit. “I pay taxes and I work hard every single day, and my one vote matters.”
Their lawsuit says North Carolina’s felon disenfranchisement law was created soon after the Civil War as a scheme to stop newly freed Black people from voting — and that 150 years later it continues to have disproportionate harm because of systemic racism in the criminal justice system. Evidence has shown that Black people in the United States still tend to face more severe charges and more severe punishments than people of other races do for the same crimes.
“Disenfranchisement affects the entire African American community,” said Daryl Atkinson, the co-director of the Durham-based group Forward Justice and a lawyer for Norman and her fellow challengers.
Having to pay to vote?
The lawsuit doesn’t seek to entirely overturn the felon disenfranchisement law. It isn’t asking North Carolina to let people in prison vote, as Democratic presidential candidate Bernie Sanders called for last year.
But once someone is out of prison, the challengers say, that person should regain their right to vote. In the current system people’s rights can’t be restored until they’re done with probation or parole, too.
Norman, for example, was convicted of conspiracy to commit robbery but never set foot in prison. She was sentenced only to probation, yet still can’t vote.
People can also have their probation extended if they can’t afford to pay court fees, fines or restitution. And stopping someone from voting specifically because they’re poor, Atkinson argued at a court hearing Wednesday, is unconstitutional.
That’s the case for Henry Harrison, a 52-year-old in Wilmington who’s also part of the lawsuit. He spent nine months in prison on a drug possession conviction and got out around a year ago. He was hired by a construction company but now is unable to work because of the pandemic. He says he can’t pay the more than $3,600 he owes, but he shouldn’t have to buy back his right to vote.
Atkinson said that in addition to their arguments over fairness, there’s also research showing that people with criminal records who get involved in their communities are less likely to re-offend in the future.
“Give people hope, and they will want to contribute,” he said.
Lawyers for the state of North Carolina and the Republican-led legislature, however, fought against Atkinson’s request during Wednesday’s court hearing.
It’s up to the legislature — not the courts — to decide what rules should exist for restoring people’s rights, said Paul Cox, a lawyer for the lawmakers.
“If the state wanted to disenfranchise felons forever, that is within the state’s purview,” Cox said. He added that doing so may or may not be a good decision, but that it shouldn’t be up to judges to decide.
Based on racist motivations?
One of the three judges on the panel hearing the case, Superior Court Judge Keith Gregory of Wake County, brought up arguments by the challengers linking felon disenfranchisement laws to North Carolina’s long and violent history of racist voter suppression.
Some of the challengers’ arguments included:
▪ North Carolina didn’t have a felon disenfranchisement law until soon after the Civil War ended.
▪ The state representative who wrote North Carolina’s 1870s felon disenfranchisement law later led a lynch mob that killed three Black people outside Salisbury.
▪ Around 95% of people convicted of felonies in North Carolina in the years after the Civil War were Black.
▪ State law allowed, in an echo of slavery, for people to be publicly whipped as a demonstration of losing their right to vote.
The Civil War ended in 1865. Historical documents show that “in the fall of 1866, reports began to come in from military headquarters in Charleston and Raleigh that ‘in all country towns the whipping of negroes is being carried on extensively,’” wrote Orville Burton, a Clemson University expert on the Civil War and American South, in a report for the challengers.
Even after the whippings stopped, up until the 1970s people who wanted their rights back had to ask a judge. And around 90% were denied, Cox said.
But the law now automatically restores people’s rights once they finish all the parts of their sentence. Compared to the past, Cox said, that’s much more equitable.
The racist history of the law, he said, “was replaced wholesale in the 1970s.”
But the challengers said that even today, Black people make up around 22% of the state population, but they make up 42% of those who remain disenfranchised even after getting out of prison.
“It’s time to eradicate this vestige of Jim Crow,” said Daniel Jacobson, another lawyer for the challengers.
And one of the three judges hearing the case Wednesday, Superior Court Judge Keith Gregory of Wake County, questioned how much has really changed in the last 50 years.
Ruling to come soon
Even with the changes in the 1970s, judges still have plenty of discretion in connection to who gets to vote after getting in trouble with the law, Gregory said.
Beyond any decisions leading up to a conviction, judges also can choose how much probation to give someone, what conditions they’ll have, or whether to waive their fines and fees.
“If a judge still has that discretion, why is it different than the discretion he had before the enactment of this statute?” he asked.
Gregory also gave a hypothetical of two people who failed to pay restitution for stealing nearly identical TVs, one worth $1,000 and one worth $999. Only one of those people would be banned from voting, Gregory said, since that one dollar is the cutoff between a misdemeanor and a felony.
“What’s the compelling difference between those two?” he asked.
Cox said that’s a bigger issue, beyond the scope of this lawsuit. And he said several times that it’s up to the state legislature to craft the state’s laws, not judges.
“One may disagree with that policy rationale,” he said. “But it is a policy rationale, and it is legitimate.”
The judges didn’t immediately issue a ruling, following arguments that lasted all day Wednesday. They said they would make their decision sometime between Friday and Sept. 4.
The state’s voter registration deadline is Oct. 9, although you can also register and vote at the same time at a polling place during early voting, which lasts from Oct. 15-31.
For more North Carolina government and politics news, listen to the Domecast politics podcast from The News & Observer and the NC Insider. You can find it on Megaphone, Apple Podcasts, iHeartRadio, Stitcher or wherever you get your podcasts.
This story was originally published August 21, 2020 at 2:30 PM with the headline "Let felons vote once they get out of prison, NC lawsuit argues ahead of 2020 elections."
