Federal appeals court panel grills attorneys for North Carolina over felon voting statute
A trio of federal judges appeared skeptical on Friday of arguments advanced by attorneys for the state of North Carolina in a voting rights case involving the issue of voting by people with past felony convictions. The state is seeking to overturn a lower court ruling that struck down a statute criminalizing voting by disenfranchised felons as racially discriminatory.
The case concerns a state law making it a felony for anyone who has lost their right to vote following a criminal conviction to cast a ballot unless they have had their right restored. The North Carolina A. Phillip Randolph Institute (APRI), a nonprofit affiliate of the AFL-CIO, filed suit in 2020 on the grounds that prosecuting individuals who unknowingly vote while ineligible is an unconstitutional violation of due process and equal protection rights. The nonprofit also contended that the law has a chilling effect on North Carolinians with criminal convictions who have since regained their eligibility.
In 2023, the General Assembly passed an updated version of the law — explicitly excluding unintentional voting violations from prosecution — and set it to take effect for any offenses taking place on or after Dec. 1 of that year. Federal Judge Loretta Biggs ruled in April 2024 that the prior statute unconstitutionally discriminated against Black North Carolinians on both grounds, and permanently enjoined its enforcement, finding that the legislature did not repeal the previous law when it rewrote it.
The North Carolina State Board of Elections appealed the ruling, arguing that: a) the district court should not have granted relief in light of the new law, b) APRI no longer had a concrete interest in the case, and c) the matter should be declared moot. The board did not dispute the contention that because North Carolina has no statute of limitations for felonies, voters could still face prosecution for ballots cast in past elections.
The panel on the Fourth Circuit Court of Appeals — judges James Wynn Jr., Pamela Harris, and DeAndrea Benjamin — grilled lawyers for the board and the state Conference of District Attorneys Friday on why they would want the law to remain on the books when it was replaced by a new statute in 2023, unless they sought to prosecute under the old law.
Terence Steed, an attorney with the North Carolina Department of Justice representing the board, noted that APRI was not challenging the new law and said 'there's no evidence in the record' that the previous law would be enforced, even if it legally could be.
'Can I ask why you're here, then?' Harris asked. 'If there will not be prosecutions under the old law, I truly don't understand why you're here.'
'There's important principles of mootness in this case,' Steed replied. 'When our office defends statutes, which it is frequently called upon to do, it is not uncommon — just as it is in Virginia and all the other states in the circuit and across the country — that the General Assembly, during the pendency of that litigation, might step in and amend the law to correct what the plaintiffs are concerned about.'
Harris said while that may be true, she had 'never seen anything like this' in which a state nonetheless appeals an injunction against enforcing a law that has been made obsolete. She asked why the old law could still be enforced after the passage of its replacement, to which Steed replied that he was 'not sure how it would work under North Carolina law, and that's not an issue I was prepared for' — a statement that Wynn chided him for.
'I don't understand at all what you're arguing here when you say you don't understand how it operates under North Carolina law,' Wynn said. 'You're representing the state of North Carolina, we expect you to know that.'
Judges also pressed Elizabeth O'Brien, an attorney with NCDOJ representing the Conference of District Attorneys, on whether she was arguing the state should be able to prosecute offenses prior to 2024 under the old law.
'I think that the way the statute was amended provides that those prosecutions could occur,' O'Brien said.
'That's the point we're making,' Wynn interjected. 'You've just admitted, you just presented why it's not moot. You say they could occur, and so if they can occur if we don't uphold the district court, then essentially, you're saying you should have two statutes you can prosecute under.'
Jonathan Youngwood, the attorney representing APRI, said if anything, the new law creates more of an interest in relief to prevent voter misinformation about their voting rights. He cited the confusion in the courtroom as evidence that voters with criminal convictions whose rights had been restored could easily be misled into thinking it was still unlawful for them to vote.
'North Carolina has no statute of limitations on felony charges. That means any person who voted in a prior election and some DA, someday decides could be subject to this old discriminatory law, could be prosecuted,' Youngwood said.
He said the General Assembly's amendment was insufficient to counter this issue, arguing that because it said it is 'effective to acts going forward,' it does not repeal the previous statute by implication. And he noted that at the time of discovery in 2022, there were 200 active cases related to the law. 'All those cases could be live,' Youngwood said.
'Your Honor, I wish we could make some deal that there wouldn't be future prosecutions. The only way we know it is the way we pursued it in the district court, which was to seek an order making it clear,' Youngwood said. 'We hoped the case wouldn't be appealed, it was appealed, and so we're taking up your time this morning.'
Wynn asked whether it would be sufficient to uphold the district court order on only one of the grounds: either as a violation of the Equal Protection Clause or a violation of the Due Process Clause of the U.S. Constitution. Youngwood replied that while he did not presume to tell them how to write their decision, either would be adequate relief so long as it would 'permanently wipe the statute from the books.'
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