North Carolina’s Voting Restriction for Felons

Almost all states place some limitation on felons’ right to vote. Those limitations—which can be traced from ancient political traditions of “civil death” for certain crimes to more recent history in the post-Reconstruction United States—vary widely from state to state. They are sometimes controversial. For example, litigation involving Virginia’s restriction was mentioned in the July 29 News Roundup, with a follow-up on the ensuing executive action from the Washington Post here. Politics aside, today’s post covers some of the technical contours of North Carolina’s voting law for felons.

North Carolina’s baseline voting restriction is in the state constitution. Article VI, Section 2 sets out the disqualification for a felon, saying that “[n]o person adjudged guilty of a felony against this State or the United States, or adjudged guilty of a felony in another state that would also be a felony if it had been committed in this State, shall be permitted to vote unless that person shall be first restored to the rights of citizenship in the manner prescribed by law.”

Several statutes implement that constitutional command. Felons are not allowed to vote, G.S. 163-55, and a registered voter convicted of a felony is removed from the list of eligible voters, G.S. 163-82.14. Procedurally, the State Board of Elections gets conviction information from the courts and then tells each county board of elections about felony convictions in that county. The county boards then remove affected voters from the rolls (after 30 days’ written notice to the voter, who may object).

The process for restoring a person’s citizenship rights is set out in G.S. 13-1. It says that rights forfeited on account of a felony are “automatically restored” when any one of the following is true:

• The person is unconditionally discharged as an inmate, probationer, or parolee by the agency of the State having jurisdiction over him or her;
• The person is unconditionally pardoned;
• The person has satisfied all conditions of a conditional pardon; or
• The person is unconditionally discharged or pardoned for a federal or out-of-state offense.

This type of immediate, automatic restoration upon pardon or completion of a sentence puts North Carolina in the most common category of state approaches to felon voting rights. In a couple of states there is no restriction at all; in others, restoration is allowed after some specified period of time beyond completion of a sentence; and in others the right is restored only upon special application to the governor or the courts.

The North Carolina rule is pretty straightforward as applied to run-of-the-mill felony cases. If a person is convicted of a felony and sentenced to probation or prison, notice of the conviction goes to the State Board and then to the county board, which removes the person from the list of eligible voters. When the person’s sentence is complete, rights are automatically restored under G.S. 13-1.

Under G.S. 13-2, the agency or department having jurisdiction over the person at that point must “immediately issue a certificate or order in duplicate evidencing the offender’s unconditional discharge and specifying the restoration of his rights of citizenship.” If the person is a prison inmate serving a pre–December 1, 2011 sentence that does not include post-release supervision, the prison system will issue that certificate. If the person is a post-release supervisee, the Post-Release Supervision and Parole Commission will do it. And if the person is a probationer who reaches the end of probation, the probation officer will do it, using form DCC-13 when probation is terminated, or form DCC-15 when probation expires.

Pursuant to G.S. 163-82.20A—which requires the State Board of Elections, the Division of Adult Correction, and the Administrative Office of the Courts to work together on this sort of thing—the custodian or officer will inform the person that restoration of rights removes the disqualification from voting, but that it does not automatically register the person to vote. The person must do that himself or herself, if desired. By Community Corrections policy (p. 239–40), a probation officer will give the former probationer an explanatory pamphlet and a voter registration form. Prison policy (p. 12) directs a similar procedure in unconditional release cases that are not followed by post-release supervision or parole.

Some cases aren’t so straightforward. A few wrinkles come to mind.

First, if a person charged with a felony is placed on probation pursuant to a deferred prosecution, that is not a conviction and he or she should not be removed from the list of eligible voters.

A prayer for judgment continued (PJC) is a little trickier. PJCs are relatively rare in felony cases, but they are generally permissible. See G.S. 15A-1331.2. Prayer for judgment can be continued only after a person pleads or is found guilty, and so it seems that a person who receives a PJC for a felony would fall within the language of the voting disqualification in the state constitution. Interestingly, however, G.S. 163-82.14(c)(1) instructs the State Board to report only “final judgment[s] of conviction” to the county boards. So perhaps PJCs never result in a removal from the roll in the first place. Regardless, if we’re talking about the type of PJC in which no further action is contemplated in the case, then there is no sentence to prison or probation from which to be discharged, and the person’s rights would seem to be automatically restored under G.S. 13-1 in any event. Under G.S. 13-2, the court may want to think about issuing a notice of restoration to the defendant on the spot if it allows a dispositional PJC for a felon.

A defendant who receives a conditional discharge for a felony under G.S. 90-96 or G.S. 15A-1341(a4) is in a similar boat. A person can receive a conditional discharge only after he or she “pleads guilty” or is “found guilty.” So, again, the constitutional disqualification would seem to kick in—at least until defendant succeeds on the conditional discharge probation and the case is discharged and dismissed. See State v. Hasty, 133 N.C. App. 563 (1999) (holding that a conditionally discharged conviction counts for prior record points until it is dismissed). On the assumption that the disqualification does apply in conditional discharge cases, Community Corrections instructs probation officers to give a rights restoration certificate to conditional discharge probationers whose cases end without revocation.

Did you know that in Fiscal Year 2014/15, 225 felons received unsupervised probation and about 40 were sentenced to a fine only? N.C. Sentencing & Policy Advisory Commission, Structured Sentencing Statistical Report for Felonies and Misdemeanors (2016), at 24. In those cases, the court is responsible for issuing the order of restoration. The form for doing that is AOC-CR-926.

When a North Carolinian was disqualified from voting because of an out-of-state or federal conviction, and that disqualification comes to an end, the clerk of court in the county of residence must issue a certificate of restored citizenship (AOC-CR-919). G.S. 13-2(b). That process is not automatic; the clerk will do it only upon a showing by the person (or his or her representative) that the conditions of G.S. 13-1 with respect to those types of convictions have been met.

Finally, under G.S. 163-82.6(d) and (e), a person whose citizenship rights are restored in the 25 days before an election may register to vote on election day.

As a reminder, the limitation on voting rights and other collateral consequences of a conviction are catalogued in the School’s online Collateral Consequences Assessment Tool, available here.

The post North Carolina’s Voting Restriction for Felons appeared first on North Carolina Criminal Law.