The Fourth Circuit affirmed Friday that a 19th-century North Carolina law making it a crime for convicted felons to vote — even if they believed they were eligible — unconstitutionally targets Black voters and was not mooted by a 2024 amendment to the law.

Reflecting on over a century of the state's political history and waves of "racism and resentment" from the Reconstruction to the Civil Rights Movement, a three-judge panel affirmed in a published opinion that the U.S. District Court for the Middle District of North Carolina was right to find that the law restricted Black North Carolinians' rights. The judges said the law, North Carolina General Statute 163-275(5), has remained substantively untouched since the late 1800s.

In the ruling, the panel affirmed the district court in granting summary judgment to the North Carolina A. Philip Randolph Institute and Action NC in their 2020 lawsuit against the North Carolina State Board of Elections, its individual members and the state's district attorneys.

During the case's pendency, in January 2024, the North Carolina General Assembly enacted an amendment to the law, Senate Bill 747, to include that the person convicted must have had knowledge that his right to vote had not been restored for the act to be a felony.

The board argued that this mooted the case, because the institute's interest arose because the law was interfering with its ability to encourage prospective voters to vote.

Nevertheless, in April 2024, U.S. District Judge Loretta C. Biggs struck down the law, ruling it unconstitutional for targeting Black voters and being enforced inconsistently. The board then appealed.

The Fourth Circuit agreed with Judge Biggs, ruling that it could still grant effectual relief, so the case was not moot. New prosecutions under the law for pre-2024 conduct could create public confusion, leading prospective voters to avoid the ballot box over fear of prosecution, according to the opinion.

"The record supports the institute's position that prosecutions under the challenged statute would likely have a chilling effect on voter registration in the communities it serves," U.S. Circuit Judge DeAndrea G. Benjamin wrote, joined in concurring opinions by Judges James A. Wynn and Pamela A. Harris.

The "future" argument has no consequence, Judge Benjamin said, as the panel found it plausible that voters don't know about the 2024 update or the nuances of its enforcement.

"When presented with stories of continuing criminal charges for mistakenly voting, it is not a stretch to imagine that eligible community members — a group we presume generally to have less experience parsing legislative history than members of the federal bench — might not understand that they as new registrants could not be prosecuted for the same," Judge Benjamin said.

The record at the time of summary judgment showed that over 200 cases remained subject to potential prosecution. Friday's ruling means that North Carolina district attorneys can't enforce the law, according to a news release Friday from the institute.

The institute also showed that voter confusion has drained resources on registration and education work, as efforts are redirected to help frightened prospective voters, according to the opinion.

Turning to the equal protection clause claim, the judges said a race-neutral policy can still violate the clause if, when applied evenhandedly, it results in a "racially disproportionate impact and was motivated by discriminatory intent," citing Fourth Circuit and U.S. Supreme Court case law.

Under the U.S. Supreme Court's 1977 ruling in Village of Arlington Heights v. Metropolitan Housing Development Corp., past discrimination may be relevant to the background of a law enacted during a later legislative session.

However, subsequent high court case law has clarified that past discrimination can't condemn future action that is itself lawful. The legislature is still entitled to a presumption of good faith, even if it has not overtly disavowed the prior act's racism, according to the opinion.

The panel sided again with the institute, agreeing that indirect changes to the scope of the law in 1971 did not "cleanse" the law of its racist history. After the Civil Rights era, as the state once again took a crack at its foundational document, it expanded language to remove the right to vote from people convicted of felonies not only in North Carolina, but also in other states.

The board presented no evidence that the law itself was explicitly considered during these revisions, the institute said.

The panel, like the district court, rejected the board's "indirect cleansing theory," that the broadening of a provision in 1971 to include felonies in other states "purged the taint" of discriminatory intent from it.

It's undisputed that the late 19th-century enactment and reenactment of the statute were motivated by racial animus, the panel said. Acknowledging that history is not condemning subsequent government action because there's been no substantive action on the law since, Judge Benjamin said.

Had the 1971 General Assembly directly amended the law, the earlier legislature's discriminatory intent would be confined to "historical background," according to the opinion. But the legislature did not do that, Judge Benjamin said.

"There is simply no sign that through the 1971 Constitution, the General Assembly intended to modify the challenged statute," she said.

"Today's ruling confirms what we have known all along — that this law was borne out of racism and has been wielded to intimidate and disenfranchise Black voters," Melvin Montford, the institute's executive director, said in a  press release Friday. "The Fourth Circuit's decision ensures that this remnant of Jim Crow can no longer be used as a weapon against our communities."

The North Carolina Department of Justice is reviewing the matter, a spokesperson told Law360.

The nonprofits are represented by Jonathan K. Youngwood, David Elbaum and Jacob Lundqvist of Simpson Thacher & Bartlett LLP. and by Jacob H. Sussman, Jeffrey Loperfido and Mitchell D. Brown of the Southern Coalition for Social Justice.

The North Carolina State Board of Elections, its members and the district attorneys are represented by Terence Steed and Elizabeth Curran O'Brien with the North Carolina Department of Justice.

The case is A. Philip Randolph Institute v. North Carolina State Board of Elections, case number 24-1512, in the U.S. Court of Appeals for the Fourth Circuit. 

--Additional reporting by Hayley Fowler.