Case Ties North Carolina’s Voting Law to Its Racist History

Expanding the ​‘We’ in ​‘We the People’

The case against the North Carolina Board of Elections and state General Assembly was filed in Wake County Superior Court in November 2019 on behalf of four North Carolina residents and four community groups — including lead plaintiff Community Success Initiative, a nonprofit founded by Gaddy after his release from prison that supports people impacted by the criminal justice system. 

Atkinson, co-counsel in the case and Co-Director of the North Carolina-based organization Forward Justice, said the litigation was brought as part of Forward Justice’s Unlock Our Vote campaign as the group fights for equal access to the ballot.

“Part of our principal strategy is expanding the ​‘we’ in ​‘We the People,’” Atkinson said. ​“Black folk weren’t always included in the ​‘we’; women weren’t always included in the ​‘we.’ Expanding the franchise, expanding that ​‘we’ to include more people is a key strategy, and that’s what we tried to do with the lawsuit.”

The ​“we” is deeply personal to Atkinson. While he was arguing the North Carolina case in August, he wasn’t speaking only for the plaintiffs; he was speaking for himself. Atkinson is disenfranchised in Alabama — the place of his birth — because he owes $32,000 from a $50,000 fine associated with a 1996 conviction. He has sent in payments to the state for the past 193 months. But until that $50,000 is paid off — or Alabama changes its law — Atkinson, who owns property in his home state, will never be able to vote there.

“It certainly animates the motivation to do a good job and to want to try to put the best case that you could possibly put forward,” he said.

Professionally, Atkinson was awed by the potential the case had. After he was released from prison, he received a law degree and cut his teeth on trial work, where it seemed like the odds were constantly stacked against him. As a third-year law student working as a public defender in Minnesota, he often felt defeated going into battle unarmed, with too many cases, too little time, and not enough good facts and evidence to argue. It was one of the reasons Atkinson left that area of the law and turned his focus to civil and human rights in the criminal justice system.

But the disenfranchisement case was different from those in his early career. He was taking on the state of North Carolina, arguing that its law was deeply rooted in racism. And this time, the evidence was overwhelming. 

“To have a case like this with so much compelling evidence … to have that treasure trove at your disposal to be able to argue, it’s just a case that you want to be a part of,” Atkinson said.

North Carolina’s Dark Past

That treasure trove of evidence included testimony from three experts, including a historian whose report outlined the racist intent and origins of the law.

On page 9 of the initial complaint, amid a summary of North Carolina’s voting history, is a striking image.

A caricature of a Black man with vampire wings, sharp claws, and a menacing face stands on a ballot box, poised to attack the fleeing white men and women below. On his wings are the words ​“Negro Rule.” The political cartoon, which ran in the News & Observer in September 1898, is titled ​“The Vampire that Hovers Over North Carolina.”

The message — just one of countless cartoons and editorials that ran in the lead-up to North Carolina’s 1898 election — was clear: Political power in the hands of Black men is a danger to white society. 

While the year 1898 is infamous in North Carolina — not only did that election kick many Black politicians out of office, but white supremacists in the coastal city of Wilmington went on a two-day rampage, murdering African Americans, ransacking their community, and installing themselves in the ​“elected” positions — its history of denying Black men the right to vote goes much further back.

Orville Vernon Burton, a professor of history at Clemson University in South Carolina and an expert witness for the plaintiffs, detailed that dark history for the court. It’s a history that even the defense in the case couldn’t deny; none of it was rebutted in court.

While free Black men prior to 1835 could vote, that changed via an amendment to the North Carolina Constitution as white conservatives worried about slave revolts and the threat of Black political activism. As for felony disenfranchisement — it didn’t exist, Burton wrote. White men could lose their right to vote if they committed an ​“infamous crime” — such as treason, bribery, or perjury, or from receiving an infamous punishment such as whipping — but there was no blanket rule for all felonies.

After the Civil War ended and slaves were freed, white conservatives — bracing for the federal government to hand down voting and other rights to Black men — turned to other means to disqualify them. Among the tactics: whipping freedmen to render them ​“infamous” in the eyes of the law, which took away their right to vote even if suffrage was eventually extended to the race.

After North Carolina’s 1868 Reconstruction-era constitution guaranteed the right to vote to all men 21 years or older, white conservatives lashed out and turned to vigilante violence to stop Black men from voting, Burton wrote. At the 1875 N.C. Constitutional Convention, legislators amended suffrage requirements to take away voting rights from those convicted of a felony or any other ​“infamous” crime. In order to get those rights restored, the person had to petition the courts, which was a timely, costly, and — being at the discretion of white judges appointed by the legislature — often futile for Black men.

But that wasn’t enough for conservatives, and in 1899, the state constitution was amended further to impose literacy tests and poll taxes — but primarily only for Black men. The Legislature was able to do this by grandfathering in an exception for any person who was permitted to vote on or before Jan. 1, 1867 (i.e., was white), or was a lineal descendant of such a person. 

In 1968, for the first time since Reconstruction, a Black man was elected to the N.C. General Assembly, and Henry Frye’s first bill was to amend the constitution to abolish the literacy test. That amendment, however, failed during a 1970 referendum. Frye’s fight was personal; in 1956, the college graduate and Air Force officer who had been accepted into law school was unable to register to vote because he was told he failed the literacy test. (It should be noted that the literacy test requirement, while no longer enforced, remains in the North Carolina Constitution despite multiple efforts to eliminate it.)

By 1973, there were three Black men seated in the General Assembly, in the House, and they sponsored a bill making the restoration of voting rights automatic after the completion of felony imprisonment. But they were only able to persuade their colleagues to go so far: The automatic reinstatement of citizenship voting rights was approved but only after completion of probation or post-release supervision. This is the law that stands today.

“To achieve even that victory, we vehemently argued and appealed to our colleagues that if you had served your time, you were entitled to your rights,” wrote Henry Michaux Jr., the third Black man elected to the General Assembly, in an affidavit for the 2020 case. ​“Before the reforms we achieved, you had to go to court to have your rights reinstated, and who had the money to go to court had a major impact on who had access to reinstatement based on race. Even then, who was granted reinstatement was discretionary and discriminatory.

“We saw our efforts as a step forward,” Michaux wrote, ​“understanding that it did not solve the original problem: the law was designed to suppress African American voting power and it had created a perverse incentive to criminalize and charge African Americans differently to achieve that aim.”

Racism and Classism in the Criminal Justice System

The case was not just about North Carolina’s history, however; it was also about its present and the systemic racism that still exists in the criminal justice system, Atkinson argued in court. Study after study has shown that Black people in the United States are charged at a higher rate than white people and face more severe punishments. A 2017 report from the U.S. Sentencing Commission determined that Black men receive, on average, a sentence that is 19 percent longer than the sentence of white men who commit the same crime.

So it’s not surprising that while Black people represent around 22 percent of the voting-age population in North Carolina, they make up 42 percent of those who remain disenfranchised even after getting out of prison. The statistic was presented to the court in the expert testimony of Frank R. Baumgartner, a political science professor at the University of North Carolina at Chapel Hill. He also found that there isn’t a single county in the state that has a rate of disenfranchisement for whites that is higher than that for Blacks; in fact, eight counties have rates for Blacks that are more than five times higher than for whites.

“Racial disparities in disenfranchisement rates are as ubiquitous throughout the state as they are strong,” Baumgartner wrote in his report. ​“No region of the state escapes from this pattern.”

Traci Burch, an associate professor of political science at Northwestern University and another expert witness for the plaintiffs, presented another relevant statistic: Only about half of North Carolinians released from prison are employed a year after their release. This makes their ability to pay off fees associated with their incarceration, probation, or post-release supervision nearly impossible.

Baumgartner found that nearly every person who is disenfranchised in North Carolina because they are on probation or post-release supervision also owes a substantial amount of money — averaging more than $2,000 per person on probation and more than $500 for those on post-release supervision. Those fines and fees include court costs, monthly probation or community supervision fees, and restitution.

When your voting status is linked to your ability to pay off that debt, Atkinson argued, it creates an ​“impermissible wealth-based classification,” which is unconstitutional. Essentially, it means that those who can afford to pay off their fines and fees can vote, while those who can’t are banned from the ballot box.

“The legal financial obligations imposed by courts and corrections systems heavily burden defendants and offenders,” Burch wrote in her report to the court. ​“These obligations are particularly injurious given the fact that debtors often are indigent even before their convictions and are made more so by the stain of their new criminal records.”

Effects of Disenfranchisement

After Gaddy, 63, was released from prison in 2005, he came home to a powerful support network, including his wife, children, and parents. But knowing that not everyone who leaves prison is as fortunate, he created Community Success Initiative to help formerly incarcerated people transition back to the community. And he signed his organization on as lead plaintiff in the N.C. felony disenfranchisement case for the same reason.

Taking away a person’s voting rights blocks them out of the process of being a citizen, Gaddy said. ​“It’s like you don’t count,” he said. 

Coming home after serving time in prison is already a tough transition for many as they face employment and housing issues. When you add the loss of voting rights, ​“it can be kind of deflating,” Gaddy said. ​“And if there’s any time that you need to be in power, it needs to be when you come home.”

And disenfranchisement doesn’t only affect formerly incarcerated people, Burch said. ​“It produces harmful effects for individuals, families, and communities,” she wrote. ​“Disenfranchisement sends harmful messages of social and political exclusion that can hurt reintegration.” Additionally, ​“disenfranchisement rates can get so high that they produce spillover effects that suppress voting among the families and communities of disenfranchised citizens.”

Shakita Norman of Raleigh found herself unable to continue working at her customer service job when the pandemic hit in March and her children were forced home to attend school remotely. She has a stake in what happens in November — not only the direction the country will take but who will be appointed to her local school district.

But Norman, 29, who had voted in past elections, is banned from doing so this year because of her probation status.

“I would like to be able to effect change in the community in which I work and in which my children attend public school,” said Norman, one of the individual plaintiffs in the felony disenfranchisement case, in her affidavit. ​“Some of the issues that I care most about are improving our public schools and speaking up for my children as a single mother.”

Living in the community, paying taxes, taking care of her kids, Norman has a vested interest in the outcomes of state, federal, and county elections, Atkinson said. 

“There is a Wake County Public School Board election this November,” he said. ​“And those school board members are going to be deciding if Miss Norman’s children have to either attend in person or they are going to be virtual learners. But Miss Norman has no say so in choosing those people, in selecting who those people are. That not only impacts her, that impacts her children.”

What’s Happening in Other States

As the disenfranchisement of those with felony convictions has gained national attention over the past few years, there have been a flurry of changes to laws across the country. 

Governors in Iowa and Kentucky — states that had banned voting for life to those with felony convictions — recently signed executive orders restoring rights to those who have completed their sentences, though they, like in North Carolina, must also complete probation or parole. Similarly, in Florida in 2018, voters overwhelmingly approved an amendment ending the disenfranchisement of people convicted of felonies — restoring the right to about 1.4 million people. 

But despite the large margin by which voters approved the amendment in Florida, there was still resistance from politicians. The following year, the Republican-controlled Legislature approved a bill requiring those convicted of felonies to settle their financial obligations to court before having their voting eligibility restored. While a lower court in May found that the law was discriminatory, the U.S. Court of Appeals overturned that ruling in September, saying Florida can indeed disenfranchise those who still owe financial legal obligations. It’s estimated that half of the 1.4 million people had the rights taken away again.

Atkinson said he wasn’t surprised by the Florida ruling, which came a week after North Carolina’s win on the same issue; one of the reasons the North Carolina case brought state constitutional claims was to stay out of federal court, where President Donald Trump has appointed more than 200 federal judges and it would be hard to win. Once Florida’s earlier ruling that the law was unconstitutional was forced to go before the entire 11^th Circuit, ​“it was inevitable they were going to knock it down because they weren’t going to be led by the law; they were going to be led by partisan outcome,” Atkinson said.

But Atkinson said it’s important that people not overlook how big of a win the 2018 amendment was: Data shows that there are more than 100,000 people with felony convictions who are now registered to vote in Florida as a result of that amendment. 

“They won a huge human rights and civil rights win,” Atkinson said. ​“The Legislature and then the court unfortunately are trying to limit that win, but there are still plenty of people who can get registered and are getting registered in Florida to help shift that outcome of that state.”

And every year, more states are expanding their voter base. In November, California will vote on a ballot initiative that would restore the right to vote to people with a felony conviction who are on parole (the state already allows people on probation to vote). 

While Atkinson has been heartened by the changes made across the country, he said the fight continues.

“What I’ve learned over this period is white supremacy is persistent, it’s durable, it’s lasted this long for a reason; otherwise it would have been dismantled long ago,” he said. ​“So I know that the breakthroughs we’re having on this issue right now across the country, whether it be through ballot initiatives or people changing the laws through state legislatures or the courts, I know that we’re going to have to continue to win and win again and probably win again because systems are durable in maintaining the status quo.” 

What Now?

Because there were two defendants in the case — the Board of Elections and the Legislature — either could appeal September’s ruling in the N.C. disenfranchisement case. But so far neither has. The Board of Elections decided it would not appeal and would work on identifying those who are now eligible to vote. The legislative defendants have been silent, Atkinson said. 

With less than a month left for North Carolinians to register to vote — the official cut-off date is Oct. 9, but people can also register during early voting from Oct. 15 to 31 — Forward Justice, Community Success Initiative, and their partner Second Chance Alliance are deploying multiple tactics to get the word out to the newly enfranchised and others who may not be aware of their eligibility.

“We’ve been contacting, phone banking, text blasting,” Atkinson said. ​“We’ve been checking on their voter status and educating them, agitating them to get registered … to expand the ​‘we’ with people who are low-propensity voters because they never felt this system was set up for them.”

November’s election is a critical one, Atkinson said, as the country faces a pandemic and racial unrest. ​“We’re really in a crisis moment in our democracy, and we need as many people participating to help shape the direction of the country as possible,” he said.

“There are 200,000 American families who are mourning the death of loved ones since February. We’re seeing social unrest the likes of which we have not seen since ​’68. Millions of people are out of work,” Atkinson said. ​“If there was ever a time, where we need to hear from all of our citizens, all of our community members on the proper direction of our state and federal government, now is that time. When would it not be?”