If a North Carolina defendant enters a no-contest (nolo contendere) plea to a felony charge and is sentenced, does that plea by itself strip away the defendant's right to vote, the way a guilty plea or jury verdict of guilty would?

Plain-English summary

Bessie Cherry, the Clerk of Court in Washington, NC, had a recurring question that mattered to voter registration: when a defendant pled nolo contendere (no contest) to a felony, did that defendant lose the right to vote on the spot? Cherk-of-court offices handle voter-roll maintenance work, and getting the answer wrong meant either improperly removing a voter or improperly leaving on the rolls a person the Constitution actually disqualified.

The AG had previously, in 1953 and 1959, said yes: a nolo plea to a felony stripped voting rights. Those opinions worked from the pre-1971 NC Constitution, which disqualified anyone "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." That broad language ("convicted, or who has confessed his guilt") was read to sweep in nolo pleas because a nolo plea authorized the judge to impose punishment as if guilty.

In 1971, NC adopted a revised Constitution. New Article VI, Section 2(3) tightened the disqualifying event: "No person adjudged guilty of a felony . . . shall be permitted to vote unless that person shall be first restored to the rights of citizenship." Special Deputy AG James Wallace, writing for AG Edmisten, took that narrower wording seriously. NC case law (notably State v. Thurgood, 11 N.C. App. 405) had explicitly held that a nolo plea allows the judge to impose punishment as if upon a guilty plea but does not permit the judge to enter a verdict of guilty or to recite that the defendant has been "found guilty."

Putting those pieces together, the AG concluded that under the post-1971 Constitution, a nolo plea did not strip voting rights. The "adjudged guilty" formulation now controlled, and a defendant who pled nolo had not been adjudged guilty in the constitutional sense. The opinion noted 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." The earlier 1953 and 1959 opinions did not need to be overruled, because they had interpreted the older, broader constitutional language.

Currency note

This opinion was issued in 1980. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. NC's felon-disenfranchisement framework has been the subject of significant litigation in the 2020s, including state-court challenges to the rules for restoration of voting rights for persons on probation or post-release supervision. The constitutional text quoted here (Art. VI, § 2(3)) has not changed in form, but the statutory implementation around restoration of rights and around what counts as "adjudged guilty" has been litigated and amended several times. Anyone relying on this opinion for a current voter-eligibility question should consult the current statutes and the most recent NC appellate decisions on felon disenfranchisement.

Background and statutory framework

NC has long disqualified felons from voting through its state constitution. The mechanism has two parts: a triggering event that disqualifies, and a restoration process. The triggering language is what changed in 1971.

Pre-1971: "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." The "confessed his guilt" clause was the one the AG had read in 1953 and 1959 to capture nolo pleas. A nolo plea functions in NC as an admission for the purpose of allowing the judge to impose punishment, even though the defendant has not technically admitted guilt and even though the plea cannot be used as an admission in a later civil suit. The 1953 and 1959 opinions had treated the pleading mechanics as close enough to a guilty plea to count under the broad language.

Post-1971: "No person adjudged guilty of a felony." That phrase has a more specific legal meaning. Adjudged guilty requires either a jury verdict of guilty, a judge's verdict after a bench trial, or a guilty plea accepted by the court. A nolo plea, under NC case law, does not result in being "adjudged guilty"; it results in the court being authorized to impose punishment. The 1971 Constitution's drafters chose narrower text, and the AG read that choice as deliberate.

The opinion also reflected a substantive thumb on the scale: when a constitutional provision could be read either to deprive or to preserve a citizen's voting right, fairness counseled the preserving reading. That principle was not new in 1980, but its application here meant the AG was unwilling to extend the older opinions into the new constitutional text by analogy.

Common questions

What is a nolo contendere plea?

It is a plea by which the defendant neither admits nor denies the charge but agrees to accept the court's punishment. The plea allows the case to be resolved without a trial. In NC, the plea is governed by Rule 11 (federal) analogs and by NC criminal procedure rules; the judge accepts or rejects the plea after a colloquy.

Why would a defendant plead nolo instead of guilty?

The main practical advantage is that the nolo plea generally cannot be used against the defendant in a later civil lawsuit arising from the same facts. A guilty plea, by contrast, can be used as an admission. Nolo also avoids the defendant having to say "I did it" on the record.

Did this opinion say felons could vote at all in NC?

No. A defendant who pled guilty to a felony, or who was convicted at trial, still lost the right to vote and had to go through the restoration process before voting again. The opinion only addressed the specific case where the defendant pled nolo (rather than guilty) and was sentenced.

What happens at sentencing after a nolo plea?

The judge enters a judgment imposing the same range of punishment that would have been available on a guilty plea. The judgment recites the plea, the offense, and the sentence. NC case law (State v. Thurgood) explicitly holds that the judgment cannot recite that the defendant has been "found guilty"; it can only recite the nolo plea and the punishment imposed.

Source

• Landing page: https://ncdoj.gov/opinions/elections-nolo-contendere-plea-to-felony-charge-loss-of-right-to-vote/

Citations

• N.C. Const. art. VI, § 2(3)
• N.C. Const. art. VI, § 2 (pre-1971)
• State v. Norman, 276 N.C. 75, 170 S.E.2d 923 (1969)
• State v. Thomas, 236 N.C. 196, 72 S.E.2d 525 (1952)
• State v. Thurgood, 11 N.C. App. 405, 181 S.E.2d 128 (1971)

Original opinion text

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