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 to get that right back, joined by the North Carolina NAACP and groups that help people reenter society after incarceration.
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.
The case involves moral proportions but hinges on legal technicalities. The lawsuit is a lesson in how civil rights groups can challenge structural racism, or the way in which racism is baked into how governments or other organizations operate.
For the case, CSI v. Moore, the parties agree that part of the state constitution is racist, and, from that, so is the effect of the criminal justice system. They just disagree on what to do about it.
Placing responsibility for solving racial disparities
Five of North Carolina’s largest, most liberal counties take the right to vote away from almost seven Black people for every white person stripped of the right to cast a ballot, according to an analysis done by UNC political science professor Frank Baumgartner for this case.
But it’s not just Orange, Mecklenburg, Buncombe, Wake and Durham. Every county in the state disenfranchises Black people at a higher rate than white people, Baumgartner said.
“The disparities by race are very, very high,” he said. “No matter how we look at the data, at the statewide level, Blacks are just disenfranchised at a much higher rate compared to whites.”
Statewide, Black people are disenfranchised at a rate 2.76 times higher than white people, Baumgartner’s report showed.
Daryl Atkinson, a lead lawyer for the plaintiffs and the co-director of Forward Justice, laid out these disparities in his closing arguments Thursday afternoon.
“Black men make up 9% of the voting-age population. They are 36% of those who are disenfranchised, largely frustrating aims of the 15th Amendment and the 1965 Voting Rights Act,” Atkinson said.
Lawyers for the defense did not contest these numbers and agreed that they were troubling. But they did disagree as to what causes them and how to address the problem.
Rodriguez argued these rates of disenfranchisement are caused by disparities in the criminal justice system, not by the law that determines when people can vote again.
But Atkinson said it was a fundamental misunderstanding of racial impact and the law, and the ultimate effect of racially disparate disenfranchisement was a violation of the state constitution’s “free elections” clause.
The defense, this time from Paul Cox, a Department of Justice attorney representing the State Board of Elections, said these problems should be solved by “lawmakers and policymakers,” not the court.
“No government policy that leads to disparate results should go unexamined,” Cox said.
Rodriguez argued that if the court sided with the plaintiffs, then the judges would have to rewrite state law, which should be the purview of lawmakers.
But the plaintiffs said they already won this argument a year ago. The judges sided with the plaintiffs in a preliminary injunction and motion for summary judgment, meaning they were able to rule on part of the case before needing to go to trial.
In court on Thursday, the judges clarified that order and said it was more expansive than either the state or plaintiffs previously thought. The judges reiterated that they blocked the state from preventing people from voting just because they owed money, regardless of whether that was part of their original sentence or whether the state extended their sentences because they had not paid.
If the plaintiffs win in this full trial, Atkinson asked the court to call the disenfranchisement of people serving felony sentences but not in prison unconstitutional, immediately stop the state from enforcing that law and to notify the more than 55,000 affected people that their right to vote is restored.
The judges are scheduled to meet the week of Sept. 10, after both parties submit proposed orders. The judges could release the order at any time after that, though they made it clear that they would not rush the decision.
The judges’ decision may turn on the dueling versions of history presented in the case.
In 1973, North Carolina’s only three Black legislators, Henry Michaux Jr., Henry Frye and Joy Johnson, led the charge in rewriting the state law describing how people got their voting rights back after being convicted of a felony.
They succeeded in getting rid of several barriers, including an oath requirement, a judge’s discretion on whom to allow to vote again and an automatic two-year “good behavior” waiting period.
But according to Michaux, who gave a legal deposition for this lawsuit, they wanted the automatic restoration of voting rights as soon as a person stepped out of prison.
Instead, in order to get the bill passed by their white colleagues, they agreed to a bill that automatically restored the right to vote only after all supervision was complete, including probation, parole and post-release supervision, which can last years and require financial payments.
Atkinson used those statements to argue that extending disenfranchisement to people on probation, parole and post-release supervision was racially discriminatory.
Rodriguez agreed that racism was prevalent in the legislature, “not just in the 1800s but sadly, in the not-that-distant past,” but argued that the plaintiffs did not show that any legislator who crafted, amended or authored the 1973 bill had a specific racial animus.
Lisa Bell, the presiding judge on the panel, asked Rodriguez if the white legislators changing the bill was not itself a demonstration of racial animus.
In response, Rodriguez challenged Michaux’s statements and argued that there is no legislative history that a bill was ever introduced that would have restored the right to vote after only a prison sentence. In that sense, disenfranchisement was never expanded from the bill’s original intent, and therefore racial animus did not play a role.
Rodriguez and Cox also argued that the revised law was a vast improvement over what it replaced and therefore could not be racially discriminatory.
“That the legislature has eliminated some parts of the original racist law from 1877 doesn’t give them a free pass on keeping the other ones,” he said.T