Fewer people voted illegally in 2020, but voting rights groups want the state to stop punishing people who say they voted by mistake

Fewer people were suspected of illegally voting while on probation or parole for a felony in the 2020 general election compared with 2016, according to a state review. However, the state Board of Elections found more possible cases of double voting. 

As of early December, 33 people were suspected of voting while serving an active sentence for a felony, and 65 people were suspected of voting twice in the fall election. People with felony convictions can vote in North Carolina, but only after they have completed their probation or have left parole. 

In the 2016 general election, an elections audit found more than 400 cases of voters who cast ballots while on probation or parole for a felony, and 24 cases of double voting. 

The 2020 information is still being updated and investigations are ongoing, state Board of Elections spokesman Pat Gannon said in an email. Some of the cases might not be forwarded to prosecutors.  

After the 2016, the state elections board took several steps to limit voting by people who had not completed felony sentences, according to the audit. Elections officials sought to work with the courts and public safety officials to make sure people convicted of felonies know that they had temporarily losttheir voting rights. Election software was to be updated to prevent people with active sentences from registering.  

Voting while on probation or parole for a felony conviction is what’s called a “strict liability” offense in the state, which means that people can be prosecuted even if they do not know they were ineligible to cast a ballot. Until last fall, people who had completed their probation but still owed fines and fees were also prohibited from voting. In September 2020, a Wake County superior court ruled in a 2-1 decision that restored their voting rights, and that owing money was not a reason to block those rights.

Lisa Rowden, a member of the community organization Down Home NC, said she’s still heard from people with convictions who say that parole officers don’t give clear information on restoration of voting rights. “I thought the ultimate goal in most of the things we do is get people back in society back as meaningful, contributing people,” said Rowden, who lives in Mebane. “I would think that that a huge part of having someone re-enter society would be, ‘this is when you can vote.’ That’s not what seems to be what happens. A lot of those folks — they absolutely had to be convinced to vote when they could.”  

Last summer, then-President Donald Trump whipped up confusion while campaigning in North Carolina when he told supporters to both vote by mail and in person to test the election system. Voting twice is a felony in the state.  

Gannon said in the email that there are several reasons behind the double voting: people who voted by mail and in person, people who voted in–person twice, or people who voted in North Carolina and in another state. Investigators have found cases in which someone voted in-person after they couldn’t find the online ballot tracker that their mail-in ballot had been received, and others in which a person didn’t remember voting.   

Illegally voting is a low-level felony. Some of the cases will not be referred to prosecutors because of lack of intent to commit a crime, Gannon wrote. 

Not all district attorneys prosecuted people suspected of voting illegally in 2016, but a few did. 

The Alamance County district attorney prosecuted 12 people for voting while serving felony sentences. Nine of the people were Black, and the cases made national news. In court hearings, lawyers said their clients did not know and were not told that they were legally barred from voting.   

At least one case from the 2016 election is still pending. Lanisha Bratcher is facing charges in Hoke County that she swore on an early voting form that she was eligible to vote, even though  she was on probation. Bratcher’s case made international news last year, but Bratcher and her lawyer are under a gag order and are not allowed to talk about her case.  

The Southern Coalition for Social Justice in 2018 represented five of the Alamance residents who were accused of voting illegally. The lawyers tried to convince the district attorney to drop the cases, arguing that they were being brought under a Jim Crow-era law meant to disenfranchise Black voters. The five Southern Coalition clients ended up pleading to misdemeanor obstruction of justice.  

The Southern Coalition is now representing clients in a federal lawsuit seeking to have the law declared unconstitutional.  

The law has a disproportionate effect on Black people, said Mitchell Brown, a lawyer with the Southern Coalition. 

According to a press release, two-thirds of the 441 people who the Board of Elections said might have voted in 2016 while serving active sentences are Black. “Some ineligible individuals have incurred criminal liability by mistakenly voting prior to sentence completion, while many other eligible voters have refrained from voting because of fear of prosecution,” the lawsuit says.  

Brown said that if they win, it will be important for the legislature to, at a minimum, add an “intent requirement” to say that for a crime to have been committed, the illegal voting must be intentional, or a “bright line rule” that says people who are on probation can vote and people who are convicted and still in jail cannot.  

A legislative proposal to add “intent” language to the statute a few years ago failed.   

“Prosecutors are simply prosecuting people for making mistakes,” Brown said.