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democracy docket
'Discriminatory' North Carolina Law Criminalizing Felon Voting Struck Down
One plaintiffs' attorney said the ruling "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."
Apr 23, 2024
Democracy defenders on Tuesday hailed a ruling from a U.S. federal judge striking down a 19th-century North Carolina law criminalizing people who vote while on parole, probation, or post-release supervision due to a felony conviction.
In Monday's decision, U.S. District Judge Loretta C. Biggs—an appointee of former Democratic President Barack Obama—sided with the North Carolina A. Philip Randolph Institute and Action NC, who argued that the 1877 law discriminated against Black people.
"The challenged statute was enacted with discriminatory intent, has not been cleansed of its discriminatory taint, and continues to disproportionately impact Black voters," Biggs wrote in her 25-page ruling.
Therefore, according to the judge, the 1877 law violates the U.S. Constitution's equal protection clause.
"We are ecstatic that the court found in our favor and struck down this racially discriminatory law that has been arbitrarily enforced over time," Action NC executive director Pat McCoy said in a statement. "We will now be able to help more people become civically engaged without fear of prosecution for innocent mistakes. Democracy truly won today!"
Voting rights tracker Democracy Docket noted that Monday's ruling "does not have any bearing on North Carolina's strict felony disenfranchisement law, which denies the right to vote for those with felony convictions who remain on probation, parole, or a suspended sentence—often leaving individuals without voting rights for many years after release from incarceration."
However, Mitchell Brown, an attorney for one of the plaintiffs, said that "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 reengage in the political process and perform their civic duty."
"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," Brown added.
North Carolina officials have not said whether they will appeal Biggs' ruling. The state Department of Justice said it was reviewing the decision.
According to Forward Justice—a nonpartisan law, policy, and strategy center dedicated to advancing racial, social, and economic justice in the U.S. South, "Although Black people constitute 21% of the voting-age population in North Carolina, they represent 42% of the people disenfranchised while on probation, parole, or post-release supervision."
The group notes that in 44 North Carolina counties, "the disenfranchisement rate for Black people is more than three times the rate of the white population."
"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."
In what one civil rights leader called "the largest expansion of voting rights in this state since the 1965 Voting Rights Act," a three-judge state court panel voted 2-1 in 2021 to restore voting rights to approximately 55,000 formerly incarcerated felons. The decision made North Carolina the only Southern state to automatically restore former felons' voting rights.
Republican state legislators appealed that ruling to the North Carolina Court of Appeals, which in 2022 granted their request for a stay—but only temporarily, as the court allowed a previous injunction against any felony disenfranchisement based on fees or fines to stand.
However, last April the North Carolina Supreme Court reversed the three-judge panel decision, stripping voting rights from thousands of North Carolinians previously convicted of felonies. Dissenting Justice Anita Earls opined that "the majority's decision in this case will one day be repudiated on two grounds."
"First, because it seeks to justify the denial of a basic human right to citizens and thereby perpetuates a vestige of slavery, and second, because the majority violates a basic tenant of appellate review by ignoring the facts as found by the trial court and substituting its own," she wrote.
As similar battles play out in other states, Democratic U.S. lawmakers led by Rep. Ayanna Pressley of Massachusetts and Sen. Peter Welch of Vermont in December introduced legislation to end former felon disenfranchisement in federal elections and guarantee incarcerated people the right to vote.
Currently, only Maine, Vermont, and the District of Columbia allow all incarcerated people to vote behind bars.
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'Justice Is Delayed' as Judges OK Rigged South Carolina Map for Elections
"I'm disappointed it appears 30,000 people lost their political voice and nobody seems to care," said one Democratic congressional candidate from the affected district.
Mar 28, 2024
Voting rights defenders on Thursday decried a federal panel's
decision to let South Carolina use a congressional map the three judges found to be racially gerrymandered in this year's primary and general elections due to the U.S. Supreme Court's delayed resolution of the case.
The three-judge panel of the U.S. District Court for South Carolina in Columbia ruled last August that "race was the predominant motivating factor" in the Republican-controlled state Legislature's design of the 1st Congressional District "and that traditional districting principles subordinated to race."
Their ruling, which ordered the redrawing of the map, noted that "Charleston County was racially gerrymandered and over 30,000 African Americans were removed from their home district."
"Make no mistake—these discriminatory maps are a direct attempt to suppress Black voices ahead of a consequential election."
In their new decision, the judges acknowledged the awkward predicament of ordering the use of an unconstitutional map.
"But with the primary election procedures rapidly approaching, the appeal before the Supreme Court still pending, and no remedial plan in place, the ideal must bend to the practical," they asserted.
Brenda Murphy, president of the South Carolina State Conference of the NAACP, said: "Make no mistake—these discriminatory maps are a direct attempt to suppress Black voices ahead of a consequential election. We will not stand idly by as the rights of thousands of South Carolinians continue to be overlooked."
"The court's ruling today, further delaying these proceedings, continues to tip the scale of justice during a crucial moment in our democracy in an undemocratic attempt to sway the outcome of the upcoming election," Murphy added. "We must strive for a system where every voice is heard and every vote counts, free from the stain of discrimination."
Last October, the U.S. Supreme Court heard oral arguments in the case, which was filed in 2021 by the South Carolina State Conference of the NAACP and voter Taiwan Scott. They are represented by the ACLU, NAACP Legal Defense and Educational Fund, the ACLU of South Carolina, Boroughs Bryant LLC, Arnold & Porter, and the General Counsel's Office of the NAACP.
As Democracy Docket noted Thursday: "The parties asked the Supreme Court for a decision by January 1, 2024. Nearly three months later, the court still hasn't ruled on the case, creating a dire situation for congressional candidates as the candidate filing period started on March 16 and will end on Monday."
Joshua Douglas, a professor at the University of Kentucky Rosenberg College of Law, said on social media that "someone should write an article about the number of times jurisdictions have been allowed to use an illegal map because there's 'not enough time' to create a fair, legal one."
Douglas noted states where this has occurred, including Alabama, Louisiana, Ohio, North Carolina, "and now South Carolina."
South Carolina primary voters will head to the polls on June 11.
The 1st Congressional District is represented by Congresswoman Nancy Mace, a Republican. On Thursday, she toldThe Post and Courier that the judges' ruling "makes sense."
"It's only fair candidates know what the lines are," Mace said. "For us, I just want to know what constituents I'm serving."
Michael B. Moore, a Democrat running for the seat, called the decision "regrettable."
"I'm disappointed it appears 30,000 people lost their political voice," he said, "and nobody seems to care."
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10 Years After Supreme Court Gutted Voting Rights, Advocates Say Congress Must Reverse Damage
At least 29 of the voter suppression laws passed since the Shelby v. Holder County decision would have been subject to the preclearance provision that the ruling ended.
Jun 25, 2023
Since the U.S. Supreme Court handed down its ruling in Shelby County v. Holder exactly 10 years ago Sunday, at least 29 states have enacted nearly 100 restrictive laws including many that are racially discriminatory, according to an analysis by the Brennan Center for Justice.
The nonpartisan law and policy think tank said Friday that at least one-third of the voting restrictions—29 of them—passed in the last decade were enacted in 11 states which would have been subject to preclearance, the anti-discrimination rule that provided crucial protections as part of the 1965 Voting Rights Act (VRA) before Shelby was decided.
Under preclearance, jurisdictions that had histories of barring people from voting based on their race were required to get federal approval before introducing new voting policies.
"Without this guardrail, voters lost a bulwark against discriminatory voting policies, and states previously subject to preclearance were free to implement discriminatory restrictions on voting access without advance checks," wrote Jasleen Singh and Sara Carter at the Brennan Center. "Many states did exactly that. Along with a prior decision narrowly interpreting constitutional protections for voting rights, Shelby County also sent a message to the nation that the federal courts would no longer play their historic role as a robust protector of voting rights."
"Since the 2020 election, 20 states passed 32 laws restricting mail voting access. Overall, 22 states passed 41 such laws since Shelby County. Some of these new restrictions have a clear racially discriminatory impact."
Texas wasted no time in announcing that a strict voter ID law, previously blocked by preclearance, would go into effect the same day that Shelby was handed down. Similar restrictions, which have been found to have a disproportionate effect on low-income voters and people of color, followed in at least nine states including Mississippi, Alabama, and North Carolina.
Since 2020—when the coronavirus pandemic upended voting and Republicans spread baseless lies about so-called "voter fraud" after former President Donald Trump lost his bid for reelection—GOP state legislators have largely turned their focus to restricting measures that offer flexibility to voters, such as mail-in ballots, said the Brennan Center.
"Since the 2020 election, 20 states passed 32 laws restricting mail voting access. Overall, 22 states passed 41 such laws since Shelby County," wrote Singh and Carter. "Some of these new restrictions have a clear racially discriminatory impact."
"For example," they added, "the Brennan Center studied a 2021 Texas law requiring a voter to include their driver's license number or the last four digits of their social security number on mail ballot applications and mail ballots and requiring the number to match the individual’s voter file data. During Texas's March 2022 primary, thousands of mail ballots and mail ballot applications were rejected, disproportionately cast by Latino, Asian, and Black voters."
A number of state legislatures have also taken advantage of the Shelby ruling as they have drawn new district maps.
Sherrilyn Ifill, former president of the NAACP Legal Defense Fund and a senior fellow at the Ford Foundation, said Sunday that she knew in 2013 that the Shelby ruling was "catastrophic," but did not predict that the Republican Party would "turn voter suppression into part of its national policy."
Before 2013, said Democracy Docket, which offers analysis and expert commentary on voting rights, the U.S. Department of Justice had blocked more than 3,000 proposed voter suppression laws under the VRA.
The Brennan Center pointed out that within its ruling in 2013, the Supreme Court stated that Congress could pass a new
"coverage formula" to determine which jurisdictions would be covered by a preclearance provision.
"And it should," wrote Singh and Carter, "by passing the John R. Lewis Voting Rights Advancement Act to restore the Voting Rights Act to its full strength, as well as the Freedom to Vote Act to set nondiscriminatory baseline national standards for voting and elections."
In an op-ed at Newsweek on Sunday, U.S. Rep. Terri Sewell (D-Ala.) wrote that another voting rights-related ruling by the Supreme Court earlier this month, Allen v. Milligan, was "energizing" as the high court affirmed that Alabama had racially gerrymandered its electoral map.
However, she said, "we cannot rely on this Supreme Court, or the courts generally, to consistently protect our freedom to vote. We must, together, act."
In addition to passing the John R. Lewis Voting Rights Advancement Act and the Freedom to Vote Act, she wrote, "we must also engage in robust voter education and outreach efforts, empowering communities with knowledge and resources to help overcome anti-voting barriers."
While Ifill said she did not predict the extent to which the GOP would go to stop marginalized communities from voting, she "also did not predict the extraordinary determination of voters, who, even at the height of a deadly global pandemic refused to be bowed," she said. "That they would stand in line and risk their very lives to vote, despite efforts of Republicans and the indifference of the Supreme Court.
"The Shelby decision was catastrophic, yes," she added. "But we didn't give in and we won't give in. We will find a way to overcome every obstacle to our right to participate as first class citizens in American political life. We will vote and organize and litigate, and legislate until we win."
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