As absentee ballot envelopes for the 2010 election begin to be evaluated this week by ballot boards statewide, the curious case of Kenny Mendez triggers fundamental questions about the rights of convicted felons in Minnesota.
It also goes to the heart of how difficult it is for prosecutors to prove that felons “knowingly” voted in past elections.
Earlier this year, in a legal matter that drew little attention beyond the 8,000 residents of Mendez’s hometown of Crookston, the repeat felon testified in court that he voted in 2006 in the most unusual of polling locations: the Polk County Jail while he was an inmate there.
Kenny Mendez’s story
The absentee ballot (and the pencil he needed to fill it out) was handed to him by a prison guard. That guard then stamped Mendez’s ballot envelope and had it delivered to Polk County elections offices to be counted, which it was during the 2006 statewide election.
Two years later, out of jail, studying towards a communications degree on the campus of University of Minnesota-Crookston, working to stay clean from his chemical dependency, generally getting his life together, Mendez, then 45, sought to vote again. He was still on probation for his first-degree burglary conviction.
Believing he was entitled to vote, Mendez went to the Polk County courthouse to cast an absentee ballot Nov. 3, 2008, because he had tickets for a Bob Dylan concert in the Twin Cities the next day, Election Day. Mendez purposely brought along his 11-year-old son — Dylan (named for the singer) — to show the boy the importance of voting.
But Mendez was stopped from submitting his ballot. Known around town for his lengthy police record, Mendez was told that he was ineligible to vote because he was a convicted felon and because his right to vote hadn’t been restored while he was still on probation.
“I got defensive, angry,” Mendez told MinnPost in an interview. “I said, ‘You’ve got to be kidding me. I’ve been on probation my whole adult life’ … I told [the elections worker] I even voted when I was in jail two years ago.
” ‘Oh, you couldn’t have!’ she said.”
” ‘No, I voted in jail, and now you’re telling me I can’t vote?’ “
With that exchange, oft-convicted Mendez admitted to illegally voting and, thus, committing another felony that would endanger his probation.
It took 16 months, but for two days in late March of 2010, a full-blown trial ensued before Polk County District Court Judge Jeffrey S. Remick.
The verdict: Not guilty. Remick needed 17 pages of fact-finding and conclusions of law to explain his ruling.
“The Court must ultimately conclude that [the county prosecutor] has not met its burden in proving, beyond a reasonable doubt, that at the time the Defendant voted in November 2006 he knew that he was ineligible to vote.”
After all, if you can vote behind bars, wouldn’t you think you can vote at the county courthouse?
The Minnesota Majority, a conservative watchdog group, made a big stink [PDF] over the issue of felon voters a few months back. It’s an issue that conservatives have been pushing for a while, some say, to limit minority voting on Election Day.
The purging of thousands of African-American voters in Florida during the 2000 presidential election between George Bush and Al Gore has long troubled liberals.
Even before the Minnesota Majority got involved — and through their own independent investigations — the Secretary of State’s Office and county attorneys across Minnesota have been spending time investigating and even prosecuting some felons for illegally registering to vote and/or voting. We profiled one here last month.
In Polk County, site of Mendez’s case, a dozen felon voter cases are still being investigated, said County Attorney Gregory Widseth, who figures at that rate hundreds of illegal voters statewide may have voted in 2008.
But the data in Minnesota are colored by the effects of disenfranchising felons. The more felons are disenfranchised, the more minority group members are, too. According to a study co-authored by University of Minnesota sociology professor Christopher Uggen in 2009, nearly 10 percent of African-Americans of voting age and 6.5 percent of American Indians weren’t allowed to vote because they were felons whose voting rights hadn’t been restored. Only 1.2 percent of whites were in that ineligible set.
As clear as the data, so is the Minnesota law, and even the state Constitution, Widseth points out.
In Article VII, the state Constitution states a person who “has been convicted of treason or felony, unless restored to civil rights,” shall not be “entitled or permitted to vote at any election in this state.”
The law — Minnesota Statutes, Section 201.014, Subd. 2(a) — repeats the Constitution’s language that a person isn’t eligible to vote if he or she has been “convicted of treason or any felony whose civil rights have not been restored” — that is, if a person is still on probation for that conviction.
Minnesota’s policies are one of many used around the country. In Vermont and Maine, incarcerated felons can vote. In 12 states, for certain crimes and with some extended time provisions, some felons lose their voting rights well beyond the time of their parole completion.
But there is a Subdivision 3 to Minnesota law that complicates matters. It states that, “Any individual [who votes] who knowingly is not eligible to vote is guilty of a felony.”
If you are a convicted felon and if your probation is still in place, your right to vote is taken from you. But, if, under those circumstances, you register to vote and then vote, you must be aware of the restrictions on you. Many felons are not. Many aren’t told their voting rights have been stripped. Many counties — until recently — weren’t including clear voting notices in their probation agreements.
St. Paul-based lawyer Ted Dooley, who took Mendez’s case pro bono, put it all in plain language:
“You can’t have an intentional crime without having the intent. You can’t have the intent without knowledge. You just can’t. The state has to prove beyond a reasonable doubt that the person accused intended to do that act.”
And how could Mendez know it was wrong to vote in jail if the jailers gave him the ballot and the pencil? How could he know it was wrong to vote in 2008 if he was allowed to vote in 2006?
That 2008 day
Here’s what happened on Nov. 3, 2008, and here’s how it related to what happened sometime in 2006.
At about 3 o’clock, Mendez went to vote, although he was somewhat reluctant because he was a Hilary Clinton backer and wasn’t sold on Barack Obama or John McCain. But an adviser at his college campus encouraged him to vote.
He entered the courthouse. He waited because, he thought, a woman ahead of him needed some assistance. But after about a five-minute wait, he was told he couldn’t vote and why.
That’s when he admitted he had voted in 2006. In essence, he turned himself in for voting in jail.
Soon, Mendez spoke to his probation officer and the Polk County elections director and admitted to them he voted in 2006 in jail. Soon, he was charged with having voted illegally.
Then and now, when a person registers to vote, he or she is required to certify that they are eligible to vote, which Mendez was not. But, Minnesota law only requires that county officials retain election records for 22 months. So, by the time he went to trial in March, there was no evidence to prove Mendez signed such a certificate in 2006.
The case for the prosecutor
Like Mendez, Polk County Attorney Widseth was born, raised and still lives in Crookston. But, prosecutor that he is, he told MinnPost last week, “I’d still try the [Mendez] case tomorrow if it came before me. My opinion hasn’t changed a bit on it. … I respect the judge’s decision, but I don’t agree with it.”
Widseth believes he proved Mendez had knowledge — or should have had knowledge — that he was ineligible to vote. Yes, Widseth notes, there was no document during his criminal cases that apparently expressly told Mendez he had lost his right to vote.
But on a number of earlier occasions — and noted in Remick’s final ruling — when Mendez was released from jail, he received letters from probation officials in 1996 and 2002. Those letters clearly notified him that his sentences had expired and “you are restored to all civil rights and full citizenship, with full right to vote and hold public office, the same as if such conviction had not taken place.”
Widseth said, given those notices from the probation officers, “[Mendez] was on notice … I don’t know how you can’t understand the opposite content of that, which is, ‘When you’re under sentence, you can’t vote.’ “
Judge Remick, after hearing all testimony, wrote that Mendez “should have known” that he lost his right to vote but that Widseth failed to prove that.
“I knew in my heart I did not know” about the voting prohibition, Mendez said. “Furthermore, if I wasn’t supposed to vote, who cares if I knew, who cares if I was pulling a fast one on the government? Why was I allowed to be given the ballot [in 2006]? If I asked for a gun, were they going to give me one? When I went to go vote in 2008, my mindset was the same.”
He believed then he was eligible to vote. He brought his son along because he was proud he could vote. He was wrong.
The policy debate
Details aside, the Mendez case screams for a conversation about the policy. Yes, Minnesota has barred felons from voting for more than 150 years, but should it?
Widseth said the current law is a good one and that not allowing felons under sentence to vote is ingrained in the Minnesota culture.
Mendez believes anyone who wants to vote should be allowed to. After all, “There are so many non-felons who aren’t voting, so it’s a travesty that a tighter clamp is being put on felons. … Most felons can’t go to an apartment complex and get an apartment because of that big fat ‘F’ that’s going to be with them the rest of their lives. To have a voice, that you can matter, that’s so important.”
Dooley, who took on the case because the facts of it “pissed me off,” generally agrees but also believes felons need to be better notified of their rights with bold lettering on a probation agreement. He believes they should be asked to sign a notice that they can’t vote and also be told proactively by officials that their right to vote has been stripped.
Uggen, a University of Minnesota Distinguished McKnight Professor and chair of sociology, has written that the vote should be extended to non-incarcerated felons. In a 2009 essay (PDF) for the American Society of Criminology, he and a co-author argued that there are a host of reasons to “re-enfranchise” felons who are not in prison to vote; key among them is that studies have shown that returning voting rights to parolees lowers recidivism rates and helps ex-prisoners reintegrate into their communities.
“Extending voting rights to non-incarcerated felons would not simply extend a privilege to a stigmatized group — it would also encourage former offenders to live up to their responsibilities as citizens,” Uggen wrote.
In an interview, Uggen said: “The issue crystallizes and comes to a head when you come across these cases of illegal voting, which are quite rare but very poignant. How do we help people in transition from being wards of the state to becoming productive citizens at work, active citizens in the community and responsible citizens in family life? Voting is a very powerful, symbolic act.”
As for Mendez, he’s 47 now and said he hopes to graduate next spring.
He says he’s been clean of drugs since 2007. He transmits satisfaction on the telephone line, noting that “those 20-some years of misbehaving makes me appreciate every day that I’m out here. Not that everyone has to go through 20 years of the school of hard knocks to appreciate it, but, for me, that’s what it took.”
For now in Minnesota, only full members of society get to vote. For one day in 2006 while he was in jail, Ken Mendez was a full voting member. Then, he got out, and he’s not anymore — and won’t be until at least 2016, when his probation is scheduled to end.