On Friday, a North Carolina court dramatically expanded the number of voters eligible to participate in the 2020 election. The state may not disenfranchise citizens who owe fines, fees, and other debts from a felony conviction, the Wake County Superior Court ruled on Friday. And while the court limited its order to those affected by wealth-based voter suppression, its reasoning portends a broader ruling in the near future that could restore voting rights to 70,000 more North Carolinians on probation or parole.
Many felon disenfranchisement rules, including North Carolina’s, are rooted in overt white supremacy. After Reconstruction, racist Democrats in the state sought to revoke Black citizens’ suffrage. They accomplished this task, in part, through vague criminal laws that stripped convicted felons of their civil rights—then enforced these laws disproportionately against Black people. North Carolina’s current statute is rooted in an 1877 law spearheaded by a representative who later presided over the lynching of three Black men. At the time, Democrats argued that felon disenfranchisement was necessary to stop “the honest vote of a white man” from being “off-set by the vote of some negro.” Its purpose, alongside other Jim Crow measures like the literacy test, was to “secure white supremacy.”
The law continues to work as intended, as documented in an expert report by University of North Carolina professor Frank R. Baumgartner. Today, Black North Carolinians represent 22 percent of adults and 42 percent of the disenfranchised. Black residents are denied the right to vote at three times the rate of white residents in 44 counties. The state’s disenfranchisement regime targets two groups of people: those on probation or parole, and those who’ve completed their full sentence but still owe court debt. Notably, judges may extend an individual’s probation or send them back to prison because they haven’t paid off these fines and fees.
Few do manage to pay off these debts. Like Florida, North Carolina practices cash register justice, funding its criminal system by extracting money from those who encounter it. Any person charged in district court is billed a minimum of $173. They must pay $25 for a criminal record check, $60 for a public defender, and $600 for lab analysis of evidence. Those sentenced to community service must pay $250; those placed under house arrest with electronic monitoring must pay $90 upfront, then $4.48 a day; those sentenced to a local jail must pay $40 a day—on top of the $10 a day they paid if detained before conviction. People on probation must pay $40 a month to fund their own supervision. Judges have authority to waive court debt. But they are also elected, and fearful of retribution at the polls if they’re deemed soft on criminals. In 2015, North Carolina Republicans passed legislation publicizing each judge’s annual waiver rate in an effort to shame them out of waiving fines and fees.
Experts estimate that about 70,000 North Carolinians are disenfranchised because they’re on probation or parole, while a larger number—probably more than 100,000—owe outstanding court debt. The average probationer owes at least $2,400 in financial obligations.
In 2019, a coalition of voting rights advocates sued to restore voting rights to all these individuals under the North Carolina Constitution, which provides sweeping protections for the right to vote. Friday’s 2–1 decision handed them a limited victory. The court found that North Carolina had imposed an unconstitutional “property qualification” on the right to vote while unlawfully discriminating against the indigent. Its order restored suffrage to any resident denied the ballot solely because they cannot afford to pay court-imposed fines and fees. It also clarified that anyone who has finished probation but still owes money can vote. And it announced that the deeper issue—whether the entire regime is tainted by illicit racial bias—is open to dispute. In the next few months, then, the court will also decide whether it must strike down felon disenfranchisement for all North Carolinians on probation or parole.
Actually, it seems the court nearly extended suffrage to probationers and parolees on Friday. At an earlier hearing, the two judges in the majority, Lisa Bell and Keith Gregory, acknowledged that the whole scheme is rooted in unconstitutional racism. These judges’ Friday opinion recounted this history of racism, as if it were poised to strike down the disenfranchisement law, before retreating to its narrower holding. Moreover, the dissenting judge, John Dunlow, faulted the majority finding “discriminatory intent” as a “motivating factor” behind the law. But the majority did not, in fact, make this conclusion—at least, not yet. Unless Dunlow drastically misread the decision, it seems he has accidentally published a retort to an earlier draft of the majority opinion. Put simply, the writing is on the wall: Bell and Gregory think North Carolina’s felon disenfranchisement scheme is unconstitutional, but they’ll reach that conclusion after a full trial, not at this preliminary stage, two months out from an election.
For now, the court’s decision will ensure that as many as 100,000 indigent ex-felons can participate in this year’s election. Republican lawmakers have not yet said if they will appeal Monday’s decision. But if they do, they will almost certainly lose at the North Carolina Supreme Court, which has a 6–1 liberal majority that’s especially attuned to racial justice. (Because the case involves the state constitution, the U.S. Supreme Court has no authority to intervene.) It took nearly 150 years, but the state judiciary is finally on track to abolish a system designed to preserve white supremacy.
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