North Carolina civil rights groups urge Fourth Circuit to strike down felon voting law

(CN) — A Fourth Circuit panel appears ready to strike down a Reconstruction-era voting law its opponents say discriminates against Black voters in North Carolina.

The voting rights organizations North Carolina A. Philip Randolph Institute and Action NC argued Friday at oral arguments in Richmond, Virginia, that the state’s felony voter law was enacted in 1877 to disenfranchise freed Black citizens after the Civil War. The discrimination continues as Black residents remain disproportionately impacted by the law, the groups say.

The statute makes it a crime for a convicted felon to cast a ballot before his or her voting rights have been restored. Critically, criminal intent is irrelevant — a person can be convicted even if he or she voted under the mistaken belief they were eligible to do so.

The law was struck down last year by U.S. District Judge Loretta C. Biggs, a Barack Obama appointee, who wrote in an opinion that the law was “enacted with discriminatory intent” and “continues to disproportionately impact Black voters.”

North Carolina’s district attorneys and the State Board of Elections appealed the decision. The General Assembly amended the law in the fall to add intent as an element of the crime, which state officials argue makes the issue moot in future elections.

But the old law was not repealed, raising questions of whether it remained in effect.

North Carolina Special Deputy Attorney General Elizabeth Curran O’Brien told the judges Wednesday that, based on how the new law was written, prosecutions under the old statute could happen.

U.S. Circuit Judge Pamela A. Harris, also an Obama appointee, asked O’Brien if any district attorneys wished to prosecute under the old statute, noting it was “controversial” to charge a person for conduct they did not intend to engage in.

The deputy attorney general said she did not know of any district attorney who wanted to do so but argued there was no case law that said strict liability was always unconstitutional in criminal law.

U.S. Circuit Judge James Andrew Wynn, another Obama appointee, seemed befuddled that the legislature did not simply repeal the old law to avoid the legal trouble.

“It seems to me, they should have repealed the old (law) and enacted the other one, and we wouldn’t be here,” the judge opined.

An attorney for the voting rights organizations, Jonathan K. Youngwood of the New York-based law firm Simpson, Thacher & Bartlett, said that uncertainty was part of the problem. Since there is no statute of limitation for felonies in North Carolina, the fear of prosecution for past acts looms over some voters and may make them less likely to vote in future elections.

Youngwood said, at the time of discovery, there were more than 200 cases under review for prosecution under the statute. None have yet been prosecuted, but he pointed out there has been an injunction for the past year prohibiting the law’s enforcement.

“I think, in some ways, the need to strike down this law on the voter confusion issue is even stronger today than when we first brought the case,” Youngwood said.

U.S. Circuit Judge DeAndrea Gist Benjamin, a Joe Biden appointee, rounded out the panel.

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