February 28, 1980
Subject:
Elections; Nolo Contendere Plea to Felony Charge; Loss of Right to Vote
Requested By:
Bessie J. Cherry Clerk of Court Washington, North Carolina
Question:
Upon the Court’s acceptance of a plea of nolo contendre to a felony charge, does the defendant entering such plea become disenfranchised?
Conclusion:
No.
The applicable Constitutional provision, Art. VI, § 2(3) Constitution of North Carolina, read as follows:
"(3) Disqualification of felon. No person adjudged guilty of a felony against this State or the United States, or adjudged guilty of 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."
This provision has been in effect since July 1, 1971, the effective date of the revised Constitution of North Carolina. Prior to that date the applicable Constitutional provision read as follows:
"§ 2. Qualifications of voters. – Any person who shall have resided in the State of North Carolina for one year, and in the precinct, ward or other election district in which such person offers to vote for thirty days next preceding an election, and possessing the other qualifications set out in this article, shall be entitled to vote at any election held in this State; provided, that the removal from one precinct, ward or other election district to another in this State shall not operate to deprive any person of the right to vote in the precinct, ward or other election district from which such person has removed until thirty days after such removal. No person who has been convicted, or who has confessed his guilt in open court upon indictment, of any crime the punishment of which now is, or may hereafter be, imprisonment in the State’s Prison, shall be permitted to vote, unless the said person shall be first restored to citizenship in the manner prescribed by law." (Emphasis added) Art. VI § 2.
Responding to inquiries regarding whether the old constitutional provision would result in the loss of a citizen’s right to vote by an individual pleading nolo contendere to a felony charge, this Office, on at least two occasions, May 29, 1953 and September 14, 1959, issued its opinion that "a person who enters a plea of nolo contendre to a felony charge is thereby deprived of his citizenship." Those opinions were based on the theory that "(the) policy of sending to the State’s Prison persons entering pleas of "nolo contendre to felony charges still exists and we can find no authority in the decisions of the North Carolina Supreme Court which would indicate that a plea of nolo contendre would protect a defendant from loss of citizenship."
With the enactment of the new Article VI, § 2, however, it appears that the result of a nolo contendere plea is not the same. Sufficient authority did, and still does, exist to support the earlier rulings that the term "conviction" could be deemed to include the acceptance of a plea of nolo contendere, but the altered wording of the new provision, "adjudged guilty of a felony," is much more specific, and not nearly so susceptible to differing interpretations. Further, in light of the seriousness of the deprivation of any of an individual’s citizenship rights, it appears that we should refrain from continuing to hold that citizenship rights are lost simply because no State Supreme Court case can be found which indicates the contrary. It appears that consideration of fairness would compel an opinion protecting the citizenship rights of an individual in all cases where those rights have not been clearly and unequivocally forfeited.
". . . A plea of nolo contendere empowers the judge to impose punishment as upon a plea of guilty. State v. Norman (276 N.C. 75, 170 S.E. 2nd 923 (1969)) but it does not authorize or empower the judge to enter a verdict of guilty, State v. Thomas, 236 N.C. 196, 72 S.E. 2nd. 525 (1952), nor will such an entry support a recital in the judgement that the defendant has been "found guilty."" St. v. Thurgood, 11 N.C.App. 405, 181 S.E. 2nd. 128 (1971).
Thus, at least under the wording of the current Art. VI, 2 § of the Constitution of North Carolina, it appears that we cannot reasonably hold the plea of nolo contendere or "no contest" to a felony charge would result in the forfeiture of any rights of citizenship, including the right to vote.
It should be noted that, due to the variation in wording used before and after July 1, 1971, there is no necessity to overrule the opinions of May 29, 1953, September 14, 1959, or others which may hold similarly.
Rufus L. Edmisten Attorney General
James Wallace, Jr. Assistant Attorney General