Hoke County’s prosecutions for voting while under felony supervision are an unconstitutional way to discourage black residents from exercising their right to vote and are in violation of the Equal Protection Clause.
The county has joined the handful of jurisdictions prosecuting residents for voting while on felony probation or parole. While it may seem that the prosecution is an attempt to combat “voter fraud,” ultimately the prosecutions are the byproducts of a century-long effort to put a chill on the black vote.
Consider this rather befuddling bit of North Carolina law: In our state, it is a felony to vote while on probation or parole for a felony conviction while it is a misdemeanor to break up an election by violence. That’s right — participating in civic life as you are trying to reintegrate into society following incarceration — can land you two years in jail. Starting a riot at the polls, on the other hand, will get you a slap on the wrist.
The motivation for exposing North Carolinians to two years of incarceration for exercising the right to vote is clear: To discourage black residents from voting. It has been baked into the laws in such a way that most North Carolinians probably never even noticed.
Roots in Reconstruction
Prior to the Civil War, there was no provision in North Carolina law that excluded people from voting while on felony probation or parole. This would change after Reconstruction, however, as Black voters began to exercise their newfound political power. Between 1868 and 1900, 101 Black Americans were elected to various government offices. The 1898 Democratic Party Handbook estimated that 120,000 of North Carolina’s 360,000 cast votes were by black voters.
To combat this trend, the Democratic Party began sending “persuasive speakers” to rural parts of the state to lead a widespread intimidation campaign against black voters. The campaign was called the White Supremacy Campaign; militia-like bands of white men on horseback would ride through black communities and often violently prevent the newly freed from exercising their right to vote and organize.
Unfortunately, the campaign was successful, culminating in a protest in Laurinburg that led to many black voters in the area removing their names from the voter registration rolls entirely.
In 1901, the N.C. General Assembly passed the law leading to the prosecutions we are seeing today, over 100 years later. NCGS § 163-275(5) says any person “convicted of any crime which excludes him from the right of suffrage . . . [who] shall vote at the election, without having been restored to the right of citizenship, shall be guilty of an infamous crime.”
This law has remained in effect since it was first passed with the express discriminatory purpose of disenfranchising black voters, with only one small tweak in 1931 to make it more succinct and to replace the term “infamous crime” with “felony.” Since 1931, the law has remained exactly the same.
To date, this law has disproportionately impacted the black community. As a result of systemic racism, they are impacted by the criminal legal system at a significantly higher rate than their white counterparts. In 2016, black residents made up 53% of the prison population while only making up 21.5% of the state’s population. The majority of North Carolinians with a felony on their record are black. In the same year, the N.C. State Board of Elections did an audit report and found 411 people who had cast a vote before they had fully completed their sentence and had their rights fully restored. Of the 411 people identified, 68% are Black. In Alamance County, where 12 people were prosecuted for this crime, nine were black; in Hoke, all four individuals facing prosecution are black.
While this underhanded effort to disenfranchise the black community, which is most impacted by the criminal justice system, lacks the blatant violence of post-Reconstruction voter intimidation tactics, the result is the same: A contingent of black voters who have been bullied out of participation in civic life and denied Equal Protection.
Laura Holland and Ivy Johnson are staff attorneys with the N.C. Justice Center’s Fair Chance Criminal Justice Project.