DORAN: What the court got wrong about felons and voting rights

Early voters wait to cast their ballots at the South Regional Library polling location in Durham, N.C., Thursday, Oct. 15, 2020. (AP Photo/Gerry Broome)

Last month, a trial court blocked a 50-year-old law and paved the way for roughly 55,000 felons still on probation, parole or post-release supervision to vote, unless an appeal by legislators is successful.   

Two plaintiffs are Community Success Initiative and Justice Served NC, both described in their lawsuit as organizations that “work with people who find themselves entangled in the criminal justice system.”  

Most folks would describe such people simply as “criminals.” The semantic gymnastics attacking the rule of law go much further than that. Litigants aren’t the only ones doing such gymnastics. These days, some judges could score a perfect 10.   

That’s why it would take volumes to explain all the things wrong with the trial court’s decision. Let’s focus on just one — the plain language of the law.  

The North Carolina Constitution provides, “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.” That manner is prescribed by N.C. Gen. Stat.§ 13-1, which provides “any person convicted of a crime, whereby the rights of citizenship are forfeited, shall have such rights automatically restored upon . . . the unconditional discharge of … a probationer or of a parolee.”  

Under the Constitution, a felon may not vote unless their rights have been restored in the way the legislature establishes in a law. Unfortunately, the trial court decided that the “manner prescribed by law,” Section 13-1, is not constitutional because the law does not allow people on conditional release to vote. But the statute is straightforward: when a person completes their sentence and is “unconditionally discharged,” they get back their right to vote.   

People on probation, parole or post-release supervision who have various “conditions” on their release have simply not completed their sentences. Yet, the trial court decided that they should be treated like those who have completed their sentences and get the chance to vote.   

The statute blocked by the trial court does not disenfranchise felons. The North Carolina Constitution — ratified by the people — does. It is the Constitution itself that bans felons from voting unless their rights have been restored “in the manner prescribed by law.” When the Constitution states that something, like the restoration of voting rights, must be “in the manner prescribed by law,” it is an unequivocal assignment of authority to the legislature to design the appropriate process.   

Ironically, the trial court’s order blocked the very statute that restores the right to vote for those felons who have completed their sentences and don’t have conditions on their release. Obviously, though, the trial court didn’t just block the law — it rewrote existing law to restore the right to vote upon “release from prison,” instead of upon “unconditional discharge.”  

In doing so, the trial court exceeded its authority. As the state Supreme Court explained long ago, “When a court, in effect, constitutes itself a super-legislative body and attempts to rewrite the law according to its predilections and notions of enlightened legislation, it destroys the separation of powers and thereby upsets the delicate system of checks and balances which has heretofore formed the keystone of our constitutional government.”  

All eligible voters stand to have their votes diluted by felons who are still ineligible to vote under the North Carolina Constitution. The trial court itself recognized that its decision could have changed the results of dozens of elections where the margin of victory was appreciably smaller than the 55,000 felons the court has now allowed on the voter rolls.   

Defendants in the case have appealed. They have the constitution on their side.   

If only voters had the courts on the Constitution’s side… 

Jeanette Doran is president and general counsel for the N.C. Institute for Constitutional Law in Raleigh.