Felon Re-Enfranchisement Requirements Upheld by North Carolina Supreme Court

When lawsuits challenge state legislative enactments as racially discriminatory or motivated by invidious intent, courts across many jurisdictions have long been required to view such claims through the lens of a “presumption of legislative good faith” rather than bad faith when assessing the sufficiency of the challenge.[1] The importance of this presumption was on full display recently in a case decided by the North Carolina Supreme Court: Community Success Initiative v. Moore.

On April 28, 2023, the court issued its highly anticipated decision in that case which addressed a constitutional challenge to a North Carolina statute requiring convicted felons to complete their sentences, including probation, parole, or post-release supervision, before automatically regaining the right to vote (the “Felon Re-Enfranchisement Law”). Specifically at issue in the case was the law’s requirement that felons repay their court costs, fines, and restitution as a condition of felony supervision, impeding certain felons’ eligibility to vote based on their inability to meet the financial terms of their sentences.

Before the lower court, the plaintiffs argued that the Felon Re-Enfranchisement Law’s repayment condition was facially unconstitutional and invalid under the North Carolina Constitution. A three-judge state court panel initially granted partial summary judgment and a preliminary injunction in favor of plaintiffs, finding that the law violates the North Carolina Constitution’s Equal Protection Clause and the Property Qualifications Clause by “condition[ing] the restoration of the right to vote on the ability to make financial payments.”[2] In a subsequent 2-1 decision after a trial on the merits, the panel again sided with the plaintiffs, determining that the statute (1) violates the North Carolina Constitution’s Equal Protection Clause by discriminating against African Americans and by denying all people on felony supervision the fundamental right to vote; and (2) violates the North Carolina Constitution’s Free Elections Clause by preventing elections that faithfully ascertain the will of the people.[3] Accordingly, the lower court subjected the Felon Re-Enfranchisement Law to strict scrutiny and issued a permanent injunction, ordering that all otherwise eligible persons not incarcerated for a felony could lawfully register and vote in North Carolina.[4]

The North Carolina Supreme Court agreed to take up the case on a petition for discretionary review prior to determination by the Court of Appeals and, by a 5-2 vote, reversed the lower court’s decision. The majority opinion, authored by Justice Trey Allen, held that plaintiffs failed to prove that the statute had been written with racially discriminatory intent, and that it is not unconstitutional for North Carolina “to insist that felons pay their debt to society as a condition of participating in the electoral process.”[5] The court determined that because the trial court failed to apply a “strong presumption of the statute’s validity,” its ruling that the Felon Re-Enfranchisement Law unlawfully discriminates based on race was erroneous.[6]

Instead, the court found that the available evidence does not show that racial discrimination inspired the General Assembly’s enactment of the repayment condition for felons.[7] Because the North Carolina Supreme Court’s interpretation of the state constitution’s Equal Protection Clause “generally follows” the U.S. Supreme Court’s interpretation of the corresponding federal clause,[8] the majority employed the federal Arlington Heights factors[9]—alongside the presumption of legislative good faith—in its analysis. The court determined that there were “serious defects” in the lower court’s conclusion that the Felon Re-Enfranchisement Law was enacted with intent to suppress African American votes.[10] For instance, while the trial court relied on evidence that African Americans comprise 21% of North Carolina’s voting-age population but over 42% of those unable to vote due to felony supervision for state court convictions,[11] the trial court’s findings provided “no reason to believe that” the Felon Re-Enfranchisement Law “re-enfranchises African American felons at a rate that differs from the re-enfranchisement rate for white felons.”[12] Likewise, the majority also determined that the evidence from legislative history in 1971 and 1973 relied on by the trial court to show racially discriminatory motivation at that time was “meager[]” and that the court’s inference of discriminatory intent is “at odds with the cumulative effect” of the legislation, “which has been to restore automatically the citizenship rights of all felons, whatever their race, who have completed their sentences.”[13]

The majority also determined that the trial court erred in subjecting the Felon Re-Enfranchisement Law to strict scrutiny on the grounds that it created an unconstitutional “wealth classification.”[14] The majority relied on the Eleventh Circuit’s recent analysis of an equal protection challenge to felon re-enfranchisement laws in Florida, which held that because felons do not have a fundamental right to vote under the federal Equal Protection Clause—and wealth is not a suspect classification—rational basis review was appropriate.[15] As with the Florida re-enfranchisement laws, the majority held that North Carolina’s Felon Re-Enfranchisement Law should have likewise been subjected to rational basis review. Consequently, the statute “unquestionably survives rational basis review” because the North Carolina General Assembly “could have reasonably believed . . . that felons who pay their court costs, fines, or restation are more likely than other felons to vote responsibly” and further that this requirement could have rationally been viewed as “an incentive for felons to take financial responsibility for their crimes.”[16]

The majority also held that the Felon Re-Enfranchisement Law does not violate the Property Qualifications Clause, which provides that “no property qualification shall affect the right to vote or hold office.”[17] Because the North Carolina Constitution explicitly provides that “felons whose rights have not been restored as provided by law have no right to vote,” the majority reasoned, “[f]inancial obligations imposed on individuals who already lack the right to vote” “cannot be said to violate the Property Qualifications Clause.”[18] Because the Felon Re-Enfranchisement Law does not implicate the purposes behind the constitutional provision’s promulgation, the defendants were entitled to summary judgment on this claim.[19]

Separately, because felons have no fundamental right to vote in the first place, the majority likewise held that the trial court erred in concluding that the Felon Re-Enfranchisement Law interfered with the fundamental right to vote on equal terms with non-felons.[20] And, for similar reasons, the majority reversed the trial court’s ruling that the Felon Re-Enfranchisement Law violated the Free Elections Clause of North Carolina’s Constitution. Although the trial court reasoned that “North Carolina’s elections do not faithfully ascertain the will of the people when such an enormous number of people . . . are prohibited from voting,” the majority determined that the state constitution “is not violated when felons whose rights have not been restored are excluded from the electoral process.”[21] Because “[i]t is not unconstitutional merely to deny the vote to individuals who have no legal right to vote,” the trial court “erred” in finding that the Felon Re-Enfranchisement Law violates the Free Elections Clause.[22]

In a scathing dissenting opinion written by Justice Anita Earls and joined by Justice Michael Morgan, Justice Earls warned: “The majority’s decision in this case will one day be repudiated on two grounds. First, because it seeks to justify the denial of a basic human right to citizens and thereby perpetuates a vestige of slavery, and second, because the majority . . . ignore[s] the facts as found by the trial court and substitute[s] its own.”[23] Regarding the first issue, the dissent asserted that “[t]he majority believes that, as felons,” people convicted of felony offenses “are not free even after their sentences are complete.”[24] In the dissent’s telling, similar to the North Carolina Supreme Court’s 1829 decision upholding the institution of slavery, the majority’s decision “again consigns a portion of the state’s population to a less than free status, unable to participate in the fundamental exercise of self-governance upon which democracy is based.”[25] Regarding the second issue, the dissent asserted that the trial court was correct in finding ample evidence of discriminatory intent and impact behind the Felon Re-Enfranchisement Law, and that the lower court properly shifted the burden to the defendants to prove race-neutral justifications.[26] And, in response to the majority’s reliance on the North Carolina Constitution’s Felon Disenfranchisement Clause,[27] Justice Earls emphasized that this provision “does not enable [the Felon Re-Enfranchisement Law] to function as a blank check to the legislature to impose any ‘re-enfranchisement’ requirements it desires.”[28]

The importance of the degree to which courts emphasize and apply the presumption of legislative good faith in framing how a case is decided is very evident in this case. The North Carolina Supreme Court’s majority opinion repeatedly emphasizes the lower court’s failure to properly apply this presumption as a key basis for reversal of its decision. This clear and conspicuous application of the presumption throughout its opinion demonstrates its salience in shaping and guiding the court’s decision to uphold North Carolina’s felony supervision repayment requirement.

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