Appeals Court blocks ruling that would allow felons to vote in N.C.

Image attached of law books. Carolina Journal file

By Mitch Kokai, Carolina Journal

The N.C. Court of Appeals has issued a temporary stay in a case dealing with felon voting in North Carolina. The stay blocks any felons from registering to vote until appeals in the case are resolved.

"The motion [for a] temporary stay is allowed," according to an Appeals Court order released Tuesday. "The 'Final Judgment and Order' entered by a divided three-judge panel of Wake County Superior Court on 28 March 2022 is hereby stayed pending this Court's ruling on the petition for writ of supersedeas."

A writ of superseadas blocks a lower court order from taking effect until appeals are resolved.

"The North Carolina State Board of Elections shall not order the denial of felon voter registration applications received pursuant to the 'Final Judgment and Order' but shall order such applications to be held and not acted on until further order of this Court," the Appeals Court order continued.

Action from the Appeals Court might not represent the final word in the dispute. On Monday plaintiffs in the case titled Community Success Initiative v. Moore asked the state Supreme Court to take the case. If the state's highest court steps in, it could overrule the Appeals Court's action.

The ruling could affect 56,000 felons who have completed active prison time. That includes felons on probation, parole, or post-release supervision.

“Plaintiffs seek discretionary review from this [Supreme] Court given the exceptional importance and urgency of the appeal, and of Legislative Defendants’ Petition for a Writ of Supersedeas, which has the potential to create immense confusion before the May 2022 primary election and cause substantial and irreparable harm,” according to a court filing from Daryl Atkinson of Forward Justice. Atkinson represents plaintiffs in the case.

“Plaintiffs further move to suspend the North Carolina Rules of Appellate Procedure to the extent necessary to prevent manifest injustice to the Constitution of the State of North Carolina and to the citizens of the State,” Atkinson wrote.

The plaintiffs’ plea for action arrived at the state Supreme Court Monday, three days after state legislative leaders asked the Court of Appeals to block a lower court ruling in the case.

“The Superior Court has issued an injunction that is plainly irreconcilable with the North Carolina Constitution,” according to the legislators’ appeal. “Under Article VI, § 2, anyone convicted of a felony may not vote ‘unless that person shall be first restored to the rights of citizenship in the manner prescribed by law.’ The Superior Court held unconstitutional the ‘manner prescribed by law,’ … meaning that felons serving sentences outside of prison now have no lawful means of regaining their voting rights and thus remain disenfranchised.”

“Yet, the Superior Court has permanently enjoined Defendants to allow such persons to register and vote,” legislators’ court filing continued. “And the court has done so on the eve of an election — indeed, in a manner that, if not stayed, will insulate the ruling from this [Appeals] Court’s review with respect to the upcoming elections.”

“This is the second time in this litigation that the Superior Court has upended the State’s rules for felon enfranchisement with elections approaching,” legislators warned. “The last time, this [Appeals] Court — in a decision later upheld by the Supreme Court — stayed the Superior Court’s attempt to suddenly permit all of the tens of thousands of felons serving sentences outside of prison to register and vote, instead allowing the State Board of Elections to maintain the narrower rules promulgated under the Superior Court’s original preliminary injunction.”

The flurry of new court filings arrives in response to a March 28 decision from a three-judge panel. The panel has been dealing with the case since the 2020 election cycle. In a 2-1 decision pitting the panel’s two Democratic judges against a Republican dissenter, the court declared a 1973 state law unconstitutional.

That nearly 50-year-old spelled out the conditions for felons to regain state voting rights. The law, passed when Democrats controlled both chambers of the General Assembly, required felons to complete their entire sentences before regaining the right to vote. That included time on probation, parole, or post-release supervision.

Judges Lisa Bell and Keith Gregory rejected the law, known as Section 13-1. “Section 13-1’s denial of the franchise to people on felony supervision violates North Carolina’s Equal Protection Clause both because it discriminates against African Americans and because it denies all people on felony supervision the fundamental right to vote,” Bell and Gregory wrote. “Section 13-1’s denial of the franchise to people on felony supervision has the intent and effect of discriminating against African Americans, and unconstitutionally denies substantially equal voting power on the basis of race.”

Dissenting Judge John Dunlaw reached an opposite conclusion.

“The Plaintiffs have offered, and the Court received, a myriad of testimony, statistical analysis, and evidence relating to the impact the provision of Article VI, Section 2, Part 3 of the North Carolina Constitution (felon disenfranchisement) has on the African American population,” Dunlaw wrote. “The Plaintiffs have offered no testimony, statistical analysis, or evidence relating to the impact, if any, N.C.G.S. § 13-1 has on the African American population or any other suspect class.”

The court ruling arrived less than two months before North Carolina’s May 17 primary.

There is no deadline for a response from the Supreme Court.