Judge recommends ending suit on prosecuting ex-felons who vote in North Carolina, cites new law

A North Carolina law that makes it a serious crime for someone to vote while still on probation or parole for a felony conviction shouldn't be thrown out, especially with a change to the law that took effect this week, a federal judge has ruled.

U.S. Magistrate Judge Joe Webster on Tuesday issued an order recommending to deny a request by lawyers for groups representing poor residents and Black union members to invalidate what they called the “strict liability” law.

The law was first challenged in part on racial bias claims over three years ago, with those who sued hoping to get it addressed in time for the 2020 elections. But following a series of legal hurdles, Webster’s ruling came just weeks before absentee voting begins for this year's primary elections in the nation's ninth-largest state for contests like president, governor and attorney general.

The groups who sued state election officials can formally object to Webster’s recommendation to deny their motion and dismiss the litigation to U.S. District Judge Loretta Biggs in Winston-Salem, who will make a final decision that could still be appealed further.

The lawsuit has continued despite a change to the challenged law in the fall by the Republican-controlled General Assembly, which specified that a felony offender has to know they were breaking the law by voting for there to be a crime. Without that change, which went into effect Jan. 1, a person could be prosecuted even if casting a ballot was an unintentional mistake.

Lawyers for Action NC and the A. Philip Randolph Institute, which are involved in voter-education efforts in the state, said the change wasn't good enough because it doesn't apply retroactively — meaning local district attorneys can still prosecute what they called more than 200 cases of potential illegal voting in previous elections that they are reviewing.

Webster, who listened to in-person arguments in Durham federal court in November, sided with state attorneys defending the law who argued that the groups now lack legal standing to sue.

The groups' attorneys had argued the law has forced them to divert time and money to educate voters about how the risks of voting under a law they considered unconstitutionally vague. But the Jan. 1 alteration requiring intentionality in voting illegally “substantially diminishes any prospective voter’s perceived threat of prosecution and any resulting confusion," Webster wrote.

“As a result, Plaintiffs can no longer claim that they must divert substantial resources to educate volunteers and prospective voters regarding the new law because much of the confusion concerning one’s eligibility to vote has been eliminated,” he added.

Mitchell Brown with the Southern Coalition for Social Justice and one of the plaintiffs' attorneys, said Wednesday he was disappointed with Webster's recommendation, and that the groups were considering appeal options.

If Webster's decision stands, Brown said, the groups would still have to use resources to educate people with previous felony convictions who have completed their punishments but could remain fearful of voting upon hearing about local prosecutors charging people for voting in previous elections.

The advocacy groups also have argued that the law, with roots going back to the Jim Crow era, is racially discriminatory and requires a broad review of state law to determine when an ex-offender is allowed to vote again.

Government lawyers for the State Board of Elections and for district attorneys who were sued said that while it's “undisputed” that predecessors to the law were enacted in the late 1800s to prevent Black residents from voting, there’s no evidence that the current law remains tainted by such bias.

The state constitution says a person convicted of a felony can't vote until their rights of citizenship are restored “in the manner prescribed by law.”

North Carolina law and a recent court ruling state that a convicted felon can't vote again until they complete their punishments, which include incarceration, probation and other close supervision, as well as paying fines, court costs and restitution. Voting in violation of the law is a low-grade felony punishable by up to nearly two years in prison.