-Individuals with a felony conviction cannot vote until the completion of all terms of their sentence (including parole, probation, and restitution)
-The right to vote is automatically restored upon completion of the sentence
-Voting while serving an active felon sentence is a Class I felony and a strict liability offense
-Individuals are required to be informed of their removal from registration records, but not upon conviction
-Individuals are required to be informed of the restoration of their voting rights and to be provided an opportunity to register
-Governor pardons as ordinarily exercised in North Carolina (five-year waiting period after completion of sentence) would be unhelpful in restoring voting rights BUT if the governor amends or makes an exception to the policy, pardoning individuals on parole is a possibility
The mandate for felon disenfranchisement in North Carolina is included both in its state constitution and its general statutes. The North Carolina Constitution, Art. VI, Sec. 2 states, “No person adjudged guilty of a felony against this State or the United States, or adjudged guilty of a felony in another state that also would 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.” N.C.G.S. §163A-841(a)(2) duplicates this language. Neither the constitution nor the statute provides for separate language for federal and state convictions.
Restoration of Rights
The mandate states that a person convicted of a felony can be permitted to vote restored if their rights of citizenship are restored. The restoration of citizenship is outlined in N.C.G.S. §13-1 which states that a person convicted of a crime shall have their rights of citizenship “automatically restored” if: (1) the person is unconditionally discharged as an inmate, probationer, or parolee by the agency of the State having jurisdiction over the person; (2) the person is unconditionally pardoned; (3) the person has satisfied all conditions of a conditional pardon; (4) the person is unconditionally discharged or pardoned for an offense by the agency of the United States or the state that has jurisdiction over the person (federal or out-of-state)
The language in the restoration of citizenship statute provides that after completing all terms of a sentence (including incarceration, probation, and parole), a person convicted of a felony need not do anything to have their voting rights restored. The right to vote is automatically restored and the person is eligible to vote in North Carolina; they only need register. However, the State Board of Elections recommends asking the releasing officer for a Certificate of Restoration of Forfeited Rights of Citizenship to avoid potential difficulties with registering to vote after the completion of a sentence. N.C.G.S. §13-2.
The language in the statutes do not clarify whether fees, fine, and restitutions must be paid before an individual’s voting rights are restored. For fees and fines, the distinction can rest on whether the judge moves the payment of fines and fees to a civil court. If the judge decides to move the payment to civil court upon termination of a sentence, the fine and fees need not be paid before the voting rights are restored. However, if the judge does not move the payment to civil court and the felony sentence continues until fines and fees are paid, payment must be paid in order for voting rights to be restored. For restitution, though the language of the statute is unclear, the State Board of Elections includes the payment of restitution within the requirement for completing a sentence.
Any attempt to vote or register to vote while still an active felon (i.e. felony sentence has not been completed) is a Class I felony. N.C.G.S §163-275(5). Under the statute, felon voting is a strict liability offense, and thus a felon may be convicted of a crime even if they did not know that voting while serving an active felony sentence is wrongful.
Notification of Loss of Right
There are statutes in place that attempt to ensure that individuals are notified of the loss of their right to vote. According to N.C.G.S. §163A-877, the State Board, on or before the fifteenth of every month, is required to report to the county board of elections the name, county of residence, and residence address of each individual who has received a final judgement of a felony conviction in that county in the preceding month. For state convictions, the Administrative Office of the Courts provides information on convictions to the State Board. For federal convictions, the United States Attorney sends the notice of conviction to the State Board. The Executive Director is then responsible for notifying the appropriate country board of elections of the conviction. Once the country board of elections receives the notice, the board must give thirty days’ written notice to the voter at his registration address. If the voter makes no objection, the person’s name is removed from its registration records. However, the process that the statute outlines does not mandate that a person be notified at the time of a conviction.
In practice, there have been many issues involving notification to persons convicted of a felony of the loss of their right to vote. In the post-election audit report for the 2016 election, the Executive Director of the State Board has said that an in-house investigation informed them that the information provided to felons serving active sentences does not appear to be standard and often times excludes references to the loss of voting rights altogether. Information that is received is oftentimes done through passive means such as informational pamphlets or verbal warnings. This is especially problematic, since as aforementioned, felon voting is a strict liability offense.
Notification of Restoration of Right
The statutes also attempt to ensure that people are informed of the restoration of their right to vote. Under N.C.G.S. §163A-885, the State Board, the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, and the Administrative Office of the Courts are required to jointly develop and implement educational programs and procedures to do both: (1) inform the person that the restoration of their rights means they are no longer disqualified from voting but that that to vote, they must register, and (2) provide the person with an opportunity to register to vote. At the minimum, this means providing a written notice informing the person they may now register to vote, and a voter registration form enclosed with the notice.
Once individuals convicted of a felony serve their sentence, they are eligible to vote but they must register like any other citizen—no special paperwork is needed.
N.C.G.S. §163A-865 also addresses individuals who become qualified to register to vote between the twenty fifth day before a primary or election and primary or election day, including those who are restored to citizenship after a conviction of a felony. The statute allows the person same-day registration by submitting an application form to: (1) a member of the county board of elections; (2) The country director of elections; or (3) the chief judge of a judge of the precinct in which the person is eligible to vote. Once the application is approved, the county board must add the person’s name to the list of registered voters and the person may vote the same day.
If the official denies the application, the individual is still permitted to vote a challenged ballot under the provisions of N.C.G.S §163A-915 and has the opportunity to appeal the denial to the full county board of elections.
National Voter Registration Act Agencies
The National Voter Registration Act requires driver license offices to take applications for voter registration. In addition, North Carolina has required the following agencies to also offer the opportunity to register to vote:
- Division of Services for the Blind
- Division of Services for the Deaf and Hard of Hearing
- Division of Medical Assistance
- Division of Public Health/WIC
- Division of Social Services
- Division of Rehabilitation Services
- Employment Security Commission
The statutory duties of NVRA agencies are to offer voter registration services, provide a statement of rights, avoid prohibited acts, keep declination information confidential and transmit completed forms. Voter registration agencies MUST offer voter registration services to each person making a covered transaction (initial application for service or assistance, renewal or recertification of eligibility, submission of a change of address). The NVRA agency must ask the applicant: “If you are not registered to vote at the address where you now live, would you like to register to vote here today?” This can be asked by form or in person, but the language is required.
Under §163A-911, any registered voter of the county may challenge the right of any person to register, remain registered or vote in that county. An active felony sentence is grounds for a challenge.
However, if any registered voter is challenged due to an active felony sentence and is required to answer questions in relation to the alleged conviction, their answers cannot be used against them in any criminal prosecution.
According to the North Carolina Constitution, Art. III, Sec. 5(6), “[t]he Governor may grant reprieves, commutations, and pardons, after conviction, for all offenses (except in cases of impeachment), upon such conditions as he may think proper…” Once an unconditional pardon is granted, or a conditional pardon is granted and its conditions are met, the rights of citizenship of the person pardoned are automatically restored. And since the right to vote is included under this provision, a governor’s pardon should allow for the restoration of voting rights.
However, according to the Governor’s Clemency Office website, “[o]rdinarily, an applicant must wait to apply until at least five years have elapsed since the applicant was released from State supervision (including probation or parole).” The five-year period is not required by statute and is instead established by the Governor. As such, the period makes pardons of little use in restoring the right to vote for people convicted of felonies since the right would simply be returned when the person has completed their sentence. States that use pardons to restore voting rights tend to be states that permanently disenfranchise individuals with past felony conviction, e.g. Kentucky and Virginia.
A possible alternative is the New York model, where the governor has granted pardons to individuals on parole in an effort to restore their right to vote. This proposal would require the North Carolina governor to amend or make an exception his own policy of a five year wait period and grant pardons to individuals on parole.