by Dr. Andy Jackson
Director of the Civitas Center for Public Integrity, John Locke Foundation
The three decisions could mark a slowdown in election lawsuits
The North Carolina Supreme Court upheld felon disenfranchisement, reversed an earlier ruling overturning congressional and state legislative districts, and reinstated voter ID in a dramatic day of rulings on April 28. It dismissed all three cases “with prejudice,” meaning that plaintiffs cannot bring these suits before North Carolina courts again.
Here is some context of those rulings.
The Supreme Court reversed a superior court ruling on felon disenfranchisement in Community Success Initiative v. Moore. It restored the law requiring felons to complete probation or parole before regaining their right to vote.
Section 2 of the 14th Amendment expressly authorizes states to deny the franchise to individuals for “participation in rebellion, or other crime.” The U.S. Supreme Court found that “disenfranchising convicted felons who have completed their sentences and paroles, does not violate the Equal Protection Clause” of that amendment.
The North Carolina Constitution is more explicit. It specifically states in Article VI, Section 2, Subsection 3 states: “No person adjudged guilty of a felony… shall be permitted to vote unless that person shall be first restored to the rights of citizenship in the manner prescribed by law.”
So, a lower court could not find felon disenfranchisement unconstitutional since it is part of the state constitution. Instead, it went after the law the General Assembly passed in the 1970s establishing procedures for convicted felons to regain their right to vote after they have completed probation or parole. A Superior Court panel ruled 2-1 in March 2022 that the re-enfranchisement law was unconstitutional.
Normally, if a law is struck down, you revert to the status quo before the law. That would mean that no convicted felons would have the right to vote since their disenfranchisement is enshrined in the state constitution. However, in a classic case of judicial activism, the lower court had rewritten the law itself so that felons still under state supervision could vote.
With the state Supreme Court overturning that ruling, the North Carolina State Board of Elections (SBE) has updated its voter registration forms to “comply with Friday’s N.C. Supreme Court ruling regarding the voting rights of individuals convicted of felonies.”
The court reversed an earlier ruling in Harper v. Hall, a redistricting case in which it earlier ruled that the General Assembly had drawn extreme gerrymanders.
Two things made this reversal almost guaranteed. First, the former Democratic court majority made the most extreme ruling it could rather than seek a broader majority for a compromise ruling. Second, it bypassed normal judicial procedures to hear the case again last fall. That haste allowed the legislative defendants to request a rehearing in January, as allowed by justicial procedures.
The court declared that the General Assembly drew their original maps under a “mistaken interpretation of our constitution,” based on the Harper v. Lewis decision. Therefore, the 2021 Plans were “not ‘established,’ as that phrase is used in Article II, Sections 3(4) and 5(4) (of the North Carolina constitution. See pages 143 and 144 of the ruling).” That means the General Assembly must draw new House, Senate, and congressional maps rather than use the maps they initially adopted after the 2020 census.
So, we can expect another round of acrimonious redistricting fights this year.
The ruling will likely make moot Moore v. Harper, a case before the United States Supreme Court testing the so-called independent state legislature theory.
The Supreme Court also reversed an earlier decision in Holmes v. Moore, a voter ID case. The court’s original decision last year was rife with procedural and legal flaws. Chief among the legal flaws was that the majority based its decision on a presumption of discriminatory intent and “the flipping of the burden of proof (page 41 of the April 28 decision).
The same faulty reasoning and flipping of the burden of proof was part of a federal court judge’s decision to strike down North Carolina’s voter ID law. A federal appeals court unanimously overturned that decision in 2020, removing any federal impediment to voter ID until the United States Supreme Court eventually hears the case.
Another state case, NAACP v Moore, is back at the trial court level after the North Carolina Supreme Court found last year that the constitutional amendment establishing voter ID might itself be unconstitutional. The trial judge in that case could overturn the amendment, setting up another Supreme Court hearing before the 2024 election. The ID implementation law will still be in force even if the amendment is overturned.
In the meantime, with no legal impediment currently standing in the way, voter ID will be rolled out during municipal elections this fall. It remains popular with the North Carolina people.
There will be other North Carolina election lawsuits, but these three cases may mark the start of a welcome reprieve from the current full-scale legal wars over North Carolina elections.