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Voting rights for 55,000 hang on NC court decision

By | August 21, 2021
Attorneys for people out of prison but prevented from voting urge court to correct racist law. State doesn’t deny racial disparity but objects to proposed solution.
Wake County Superior Court Judge Lisa Bell questions state Department of Justice attorney Orlando Rodriguez during his closing arguments in CSI v. Moore on Aug. 19 in Raleigh. Screen shot from hearing livestream.

Shakita Norman is in a Catch-22. She wants to vote but can’t because North Carolina stripped that right from her in 2018 when she was convicted of robbery with a dangerous weapon in Wake County. The judge sentenced her to probation, meaning she never went to prison.

Norman has five children, pays taxes, was a voter before she was convicted, works for a national car repair chain and was supposed to be off probation in May, but her sentence is indefinitely extended. She was sentenced to spend 200 weekend days in jail but now cannot do that because of the COVID-19 pandemic.

That means the state is indefinitely barring her from voting, too.

“I want to be one of the ones that make a difference,” Norman said during a court hearing this week. “I want to be able to vote.”

She sued the state, along with groups that help people reenter society after incarceration and the North Carolina NAACP, to get that right back.

If the three-judge panel in Wake Superior Court sides with them, North Carolina could see its largest expansion of voting rights since the 1960s by immediately giving the right to vote back to more than 55,000 North Carolinians. The decision would affect at least tens of thousands more in the coming years due to the constant turnover of people starting new felony sentences or finishing old ones.

The plaintiffs spent their week in court laying out the history of how North Carolina’s practice of “felon disenfranchisement,” or preventing people like Norman who are convicted of felonies from voting, comes from the 1876 rewrite of the state constitution by conservative white lawmakers.

It was part of the post-Civil War white backlash against Black political advancements that to this day disproportionately harms Black North Carolinians, according to uncontested expert testimony presented in the trial that wrapped up on Thursday.

But Norman and her fellow plaintiffs are not challenging the constitutional provision in its entirety. They are challenging the law, revised in 1973, which determines when people stripped of their right to vote get that right back.

Defining the legal fight

As state law currently stands, North Carolinians have to complete their criminal sentences, including probation or other state supervision, before getting the right to vote back.

The plaintiffs argue that keeping people from voting even when they are not serving time in prison is racially discriminatory and that the law was written with discriminatory intent and is therefore itself illegal under the state’s constitution.

Orlando Rodriguez, the state Department of Justice lawyer defending the state legislature, along with lawyers for the N.C. State Board of Elections, agreed in court that taking the right to vote away from people convicted of felonies is a practice born from racially discriminatory intent, disproportionately harms Black people and is a difficult policy to justify.

But he also argued that the plaintiffs are going after the wrong law.

“This case is not about felony disenfranchisement writ large,” Rodriguez said. “This case is not about the criminal justice system and the various inequities that exist throughout the criminal justice system writ large.”

The plaintiffs’ problem is with the felon disenfranchisement provision in the state constitution, the defense argued, which says the state can give the right to vote back, not that it is a requirement.

By the defense’s arguments, North Carolina’s “restoration of citizenship” law helps lessen the racially disparate impacts of felon disenfranchisement and therefore isn’t subject to a constitutional challenge for creating them.

But seeking a change to the state constitution, especially when this case relies on another portion of the state constitution to make its argument, could be a very difficult case to win, especially since federal courts have already ruled that felon disenfranchisement does not violate the U.S. Constitution.

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