Citing an NC law’s racist roots, a federal judge blocks a provision criminalizing felony voting

The judge ruled that subsequent changes to the law had not diminished “its discriminatory taint,” and that it still disproportionately affected Black voters.

A federal judge on Monday blocked a North Carolina law that for nearly 150 years has made it a crime for individuals convicted of felonies to vote.

That provision, passed in 1877, was designed to suppress Black votes, a fact that not even the defendants in the case denied, the judge wrote in her 25-page ruling. And though the defense lawyers in the case argued that subsequent changes to the law had “cleansed” it of its racist intent, the judge, US District Judge Loretta Biggs, disagreed.

People convicted of felonies in North Carolina are barred from voting until their full sentences have been completed, including any post-release probation periods. Once those sentences are complete and all associated fines and fees are paid, then the person can have their voting rights restored.

The lawsuit did not challenge that process, which will not be affected by the ruling.

The provision blocked by Biggs, however, allowed prosecutors to seek new criminal charges against people with felony convictions who tried to vote before they were legally allowed, regardless of whether they were aware of the restriction or of their own voting status. Tweaks in recent years sought to clarify that only those who cast their votes knowing that they were not allowed to do so could face new criminal charges.

Those tweaks, Biggs ruled, did not do enough to fix the problem.

‘Discriminatory taint’

In her ruling, Biggs wrote the 1877 law “was enacted with discriminatory intent, has not been cleansed of its discriminatory taint, and continues to disproportionately impact Black voters.”

Even with the adjustments, she added, the provision continued to violate the equal protection and due process clauses of the 14th Amendment. And she said that since the General Assembly had “failed to repeal” the 1877 statute, the provision was unconstitutional.

The suit was brought by the civil -rights groups the North Carolina A. Philip Randolph Institute Inc. and Action NC against the North Carolina Board of Elections and the state’s slate of district attorneys.

Band-aids for an open wound

Citing several precedents, Biggs ruled that federal statutes required clear and precise fixes to historically racist laws in order for them to be truly redeemable.

“Government has the burden of proof to show that the change has cleansed the discriminatory taint,” she wrote.

In her opinion, the tweaks amounted to placing legal band aids over an open wound. Because even if the racist intent was acknowledged and cut free from the law, the consequences of both the original and adjusted provision were the same, she wrote. The law continued to have a disproportionate effect on Black voters.

Biggs cited defendants’ own statements to support her ruling.

“Defendants, in an extraordinary and telling concession,” she wrote “‘do not contest that the historical background from the original enactments of 1877 and 1899 are indefensible.’”

She added: “Defendants further do not contest that the law currently impacts African-Americans at a higher rate than it does other citizens.”

Inconsistent prosecutions

The vagueness of the adjustments, she wrote, left too much open for interpretation or misunderstanding for district attorneys, leading to the possibility of inconsistent prosecutions across the state.

The plaintiffs successfully showed, she wrote, that despite the new clarifications, some DAs had prosecuted people who’d violated the felon voting law unintentionally.

This inconsistency, she wrote, shows that the law as written “lacks sufficient standards to prevent arbitrary and discriminatory enforcement.”

It is unclear how or even if the ruling will affect the 2024 elections. The ruling can be appealed and the provision will remain in effect until the legal process is resolved.