By John Hood

Do you think felons should lose their right to vote?

If so, do you think they should be able to regain that right after getting out of prison or should they have to wait until they complete any probation or parole requirement that follows prison? Or do you think a felony conviction should forever block someone from participating in elections?

Wherever you may stand on these questions, you don’t stand alone. Opinions vary. According to a 2018 YouGov survey, 24% of Americans think felons should be able to vote even while they are incarcerated, while 38% think they should be able to vote when they complete their prison sentences and 63% think they should be able to when they’re no longer on probation or parole. That leaves some 37% who are either unsure about the issue or think that felons should never be able to vote.

For decades, North Carolina adhered to the policy that happened to have the broadest public support. The state stripped those convicted of felonies of the right to vote and allowed them to regain that right after completing their full sentences, including probation and parole.

In 2019, a group of felons, assisted by several left-wing organizations and attorneys, sued to overturn the policy as a violation of the North Carolina constitution. The plaintiffs didn’t claim that taking away the voting rights of felons was inherently unconstitutional. That would have been silly. “No person adjudged guilty of a felony,” the Constitution states in Article 6, Section 2, “shall be permitted to vote unless that person shall first be restored to the rights of citizenship in the manner prescribed by law.”

Rather, the plaintiffs argued that felons should regain their voting rights as soon as they get out of prison, even if they remain under some kind of post-release supervision. Otherwise, felons who lack financial resources are excluded from the franchise longer than those who can pay the fees and restitution required under probation. That’s a violation of equal protection, say the plaintiffs.

Last August, a panel of three Superior Court judges agreed, at least in part. They struck down the statute in question and ordered the state to restore the right to vote to some 56,000 felons who are out of prison but still on probation or parole.

A month later, however, the North Carolina Court of Appeals stayed that decision until the case can be fully argued. The Supreme Court declined to remove the stay. So, for now, the original policy stands.

I freely admit that to say North Carolina’s original policy enjoys broad support among the general public is not to say it is necessarily wise or constitutional. Ours is not a system of government by opinion survey. It isn’t even a majority-always-rules system of government, although some politicians and activists like to claim otherwise when it suits their purpose.

Why do we have constitutionally protected rights and procedures in the first place? Because majorities can be just as tyrannical as minorities or autocracies.

Still, not all disputes, even about basic civil rights such as voting, can or should be settled by lawyers and judges in a courtroom. How long should the polls stay open on Election Day? What rules should govern those who wish to vote early, or by absentee ballot? And, as in this case, what is the proper balance between maximizing participation in elections and requiring that participants shoulder basic responsibilities of citizenship, which include registering to vote in the proper place within a reasonable time and — need this be said — obeying the criminal laws of our state and nation?

These questions do not have simple, obvious answers. For instance, any set of voting rules may affect people somewhat differently based on location, work status or other characteristics. The tradeoffs involved ought to be hashed out through conversation and compromise in a public, deliberative process.

In other words, they are the kind of questions properly answered by legislation, not litigation.

John Hood is a John Locke Foundation board member and author of the new novel Mountain Folk, a historical fantasy set during the American Revolution (FolkloreCycle.com).