NC election officials aren’t letting felons register to vote, despite new court ruling
People with felony records who are out of prison, but still on probation or parole, were granted the right to vote in North Carolina on Monday in a high-profile lawsuit against the state.
One of the lawyers who successfully argued the case, Daryl Atkinson of Durham-based Forward Justice, said Monday’s ruling was “the largest expansion of voting rights in NC since the Voting Rights Act of 1965,” The News & Observer reported.
But an email Tuesday from state officials obtained by The N&O indicates that none of the roughly 55,000 people affected by Monday’s ruling will actually be able to exercise their new voting rights — at least not at the moment.
Elections officials in all 100 counties were instructed by the N.C. State Board of Elections to sit on any such registration applications they get, doing nothing with them until further notice. They were told not to deny the applications, but not to approve them either, and instead keep them in limbo due to questions the state board has about Monday’s ruling. Officials worry it might conflict with a different order, just last year, from the state’s highest court.
“Until further instruction, county boards of elections should keep registration applications of voters who are on probation, parole, or post-release supervision it receives in the Incomplete Queue,” the email says.
The issue could soon be moot, however, since Republican lawmakers announced Wednesday they plan to appeal the ruling. They also filed a motion asking for Monday’s ruling to be put on hold while that appeal plays out.
The judges ruled the law unconstitutional for generally violating people’s rights, as well as for racial discrimination, but legislators say the court overstepped its bounds. They have made similar accusations in other recent election-related lawsuits, including those in which courts have found the state’s redistricting plans and voter ID law to also be unconstitutional.
“This is an unrivaled attempt by judges to legislate from the bench,” said Republican Sen. Warren Daniel, who co-chairs the Senate’s committee on election law, in a press release. “Piece-by-piece the courts are chipping away at the legislature’s constitutional duty to set election policy in this state and seizing that authority for themselves.”
What does this mean for the primary?
The 2022 primary election is less than two months away, on May 17, and the deadline to register to vote is April 22.
That means there are only a few weeks left for the elections board to answer its lingering questions about whether Monday’s ruling is enforceable — unless the legislature first succeeds in getting the ruling temporarily stopped, via its appeal.
A spokesman for the State Board of Elections, Pat Gannon, said they expect to have an answer, one way or another, in time for the primary.
“We anticipate getting clarity on this issue before early voting starts,” he said.
Early voting starts April 28, and anyone who is eligible to vote but misses the April 22 deadline to register can still register in person during early voting.
Why is there confusion?
The three-judge panel that issued the ruling Monday said in its ruling extending voting rights that the decades-old felony disenfranchisement law is unconstitutional.
“For the avoidance of doubt, under this injunction, if a person otherwise eligible to vote is not in jail or prison for a felony conviction, they may lawfully register and vote in North Carolina,” the judges wrote.
But the State Board of Elections nonetheless has doubts.
The board believes Monday’s ruling directly conflicts with a different ruling from the N.C. Supreme Court, Tuesday’s email from the board’s top attorney to county election officials says.
Complicating matters further is the fact that both rulings came in the same lawsuit, but in different parts of the legal challenges that are currently at different levels of the courts system.
That other ruling, from 2021, came after Republican legislators who want to keep the law had previously appealed a lower court’s ruling that it was unconstitutional. The Supreme Court sent it back down to lower courts, where it’s still pending, and ordered that the status quo remain in place in the meantime — which has now created the confusion as to whether Monday’s ruling is enforceable.
“We are currently working to determine how to implement this decision,” the email says.
What happens next?
The first question is whether the N.C. Court of Appeals will grant Republican lawmakers’ request to put a stay on Monday’s ruling, stopping it from being enforced while their appeal is underway. If that happens, then any confusion from the Board of Elections would likely be cleared up through future court orders.
If granted, the 55,000 people in question likely wouldn’t be able to vote in the primary — but might be able to vote in November’s general election. That would depend on how quickly the appeal makes its way through the system and how the higher courts rule on it.
If the court doesn’t grant the request, though, then the election board’s questions about the potentially conflicting court orders will need to be resolved another way.
“We will send further instructions as soon as possible,” the board’s lawyer wrote in the email to the county officials telling them to wait for more information before taking any action.
For more North Carolina government and politics news, listen to the Under the Dome politics podcast from The News & Observer and the NC Insider. You can find it at https://campsite.bio/underthedome or wherever you get your podcasts.
This story was originally published March 30, 2022 at 3:08 PM with the headline "NC election officials aren’t letting felons register to vote, despite new court ruling."
