by Dr. Andy Jackson
Director of the Civitas Center for Public Integrity, John Locke Foundation
The North Carolina Supreme Court held a hearing on felon disenfranchisement on February 2. When it issues its ruling later this year, it could reestablish the current law stating that convicted felons can have their voting rights returned once they have fully completed their sentences, including probation or parole.
Voters are the fundamental powerholders of our republic. Through our collective votes, we set policy by electing those who create and enforce our laws. In states that elect supreme court justices, such as North Carolina, we also have an indirect say in interpreting those laws.
For that reason, voting is a power as well as a right, and we correctly deny some people from having that power. We do not allow children to vote because they do not yet have the independence and maturity to exercise that power responsibly. The federal government and most states and municipalities exclude noncitizens from voting because we recognize that citizenship binds us together as a political community.
Similarly, most states deny convicted felons the power to vote. Through their actions, felons have demonstrated that they do not respect the rights of others or our laws. Why, then, should they have a hand in making, enforcing, and interpreting those laws? It is right for the state to deny them that power until they have completely paid their debt to society and shown they are capable of rejoining the body politic. That includes probation and parole (also called “post-release supervision” in North Carolina).
In addition, felons on probation or parole are still under various degrees of institutional control. They do not regain many of the rights and freedoms of citizenship. Among other things, they lose the freedom to travel, the right to possess a firearm, and the implied right to privacy. Their constitutional protection from unreasonable searches and seizures is also severely curtailed. It is reasonable to wait until they have regained their autonomy to restore their right to vote.
The constitutions of the United States and the State of North Carolina both explicitly provide for felon disenfranchisement.
Section 2 of the 14th Amendment penalizes states that deny citizens the right to vote. Nevertheless, it expressly authorizes states to deny the franchise to individuals for “participation in rebellion, or other crime.” The U.S. Supreme Court has specifically found that “disenfranchising convicted felons who have completed their sentences and paroles, does not violate the Equal Protection Clause.”
North Carolina’s constitution is even more specific. Article VI, Section 2, Subsection 3 states:
No person adjudged guilty of a felony against this State or the United States, or adjudged guilty of a felony in another state that also would be a felony if it had been committed in this State, shall be permitted to vote unless that person shall be first restored to the rights of citizenship in the manner prescribed by law.
So felon disenfranchisement cannot violate the North Carolina State Constitution because it explicitly states that no person convicted of a felony may vote until that right is restored by law.
On February 2, the North Carolina Supreme Court held what will likely be the final hearing in a felon voting case.
The plaintiffs in Community Success Initiative v. Moore believe that felon disenfranchisement discriminates against African Americans. They did not seek to overturn felon disenfranchisement itself, however, since it is in the state constitution. Instead, they attacked the law that reinstated felons’ voting rights after completing all their sentences, including probation or parole. They claimed that not automatically restoring voting rights to convicted felons during probation or parole violated the Equal Protection and Free Election clauses of the state constitution.
A three-judge panel of the Wake Superior Court struck down that law last year. As I noted then, the court could not do that and simultaneously expand felon voting rights without rewriting that law, a power reserved for the legislative branch. It would be a textbook example of violating the constitutional separation of powers.
Newly elected Justice Richard Dietz exposed that illogic in the lower court’s ruling during questioning in the Supreme Court hearing on February 2:
It seems that our constitutional doctrine is pretty clear that in North Carolina we don’t try to get in the minds of legislators. We declare something unconstitutional and then tell that other branch of government, ‘You need to try again.’
Fellow freshman Justice Trey Allen added:
The default is no felon voting except in the manner prescribed by law. Where is the law that prescribes that felons can vote — or may vote — simply upon being released from incarceration?
There is no such law. If you strike down the law that reinstates felon voting rights, the only correct constitutional result would be for everyone convicted of a felony to lose that right permanently.
In short, the lower court ruling was both illogical and unconstitutional.
While felons on probation or parole are not in prison, they are still serving their sentences. They rightfully have many rights and privileges of citizenship, including voting, taken from them until they complete those sentences. The lawsuit seeking to change these restrictions is baseless. The high court will most likely reinstate the current felon disenfranchisement law when it issues a ruling later this year.