Until earlier this month, the conversation about voting rights for Minnesotans convicted of felonies was a political one. “Restore the Vote” proposals introduced in both the House and Senate during last session — and going back years — sought to return the right to vote once felons were out of jail or prison, rather than when they are no longer on probation.
That changed with the filing last week of Schroeder et al v. Secretary of State, a lawsuit that argues the state’s scheme for denying voting rights to felons on probation is illegal under the Minnesota Constitution. The suit, brought by the ACLU, argues that because voting is a fundamental right, there must be a “legitimate government interest” to restrict that right.
It was only after the Minnesota Legislature failed to address the problem that the lawyers for the plaintiffs decided to act. “The argument has always been that the statute looks unconstitutional, feels unconstitutional — in that it infringing on this fundamental right to vote,” said David McKinney, staff attorney for the Minnesota ACLU, in an interview Monday. “But there has not been a direct legal challenge to it, in part because the Legislature has been talking about it for a number of years.”
Craig Coleman, a partner in the Minneapolis office of Faegre Baker Daniels who’s serving as pro bono co-counsel on the lawsuit, called the case a “classic example” of when litigation is necessary to remedy something lawmakers can’t — or won’t — address. “The Legislature has had many years to fix the issue,” Coleman said. “The Legislature’s inability to fix the problem and protect the right to vote means we’ve got to have recourse through the courts.”
The lawsuit describes the basic claim like this: “No legitimate government interest supports disenfranchising citizens who are living in the community and denying them the right to vote until the community-supervision elements of their sentence have been completed. No governmental interest is served by denying the plaintiffs the right to vote … they bear the costs of citizenship, and all levels of government directly influence their lives as they live and participate in the community.”
“Minnesota has never articulated any government interest that justifies such treatment,” the suit states. “None exists.”
Confusion about rationale behind current law
There is little case law in Minnesota interpreting the state Constitution’s wording on felon voting rights, or on the 1963 state law that codified the current system. Instead, the suit relies on broader protections. In fact, though it was filed in state court, the suit draws on rights enumerated in the U.S. Constitution that have been incorporated into Minnesota law, including due process, equal protection, and voting rights.
The suit states that there is no record in the notes from the constitutional convention to explain why drafters decided to allow felons the right to vote once they are “restored to civil rights.” Nor is there a record from the 1963 effort to rewrite of the criminal code, which altered the law to say voting rights wouldn’t be restored until the “point of discharge,” which has meant when people complete their sentence — including any probation.
The 1963 rewrite of Minnesota’s criminal code was considered a reform at the time, in that it simplified the code and eliminated outdated provisions — such as the one against dueling. Yet it was not as sweeping a reform as was enacted in other states.
And ACLU attorneys bringing the current case said they could find nothing in the record to explain the rationale behind the change in language related to when voting rights could be restored. Unlike the constitutional language, the 1963 law is referred to in the lawsuit as the “legislatively created system.”
“There is basically no legislative history behind it,” Coleman said. “For it not to exist is a problem and is the reason we are confident courts will invalidate the current system.”
Disproportionately affecting people of color
Since the restriction on voting rights falls disproportionately on people of color, the practice also violates the equal protection clause in the U.S. Constitution, a right that has also been found to be embodied in the Minnesota Constitution, the suit’s plaintiffs argue.
In a 1991 case, State v. Russell, the court declared that the Minnesota constitution “embodies principles of equal protection synonymous to the equal protection clause of the Fourteenth Amendment to the United States Constitution.” In that case, the court went on to state that it would apply a heightened level of review of equal protection claims when a statute “appears to impose a substantially disproportionate burden on the very class of persons whose history inspired the principles of equal protection.”
In Minnesota’s probation system, the ACLU asserts, “people of color and indigenous people are disproportionately affected by felony disenfranchisement due to significant racial disparities in the criminal justice system.” Using equal protection to assert that the state’s system for restraining voting rights of felons treats a protected group more harshly than other groups would be a case of first impression for the Minnesota courts, Coleman said.
The lawsuit cites state data showing that more than 52,000 people live outside jails or prisons but are not allowed to vote because of probation. African Americans account for 20 percent of that group, though that makes up just 4 percent of the state’s voting-age population. American Indians are less than 1 percent of voting-age population but are almost 7 percent of those ineligible to vote, and Hispanics are 2.5 percent of voting-age population but 6 percent of those with voting rights withheld.
The suit also attributes the high number of people on probation to the increase in the number of crimes classified as felonies — from fewer than 100 at statehood to nearly 400 today — and the disproportionate conviction of people of color for non-violent drug offenses. “There are more people being disenfranchised today than there were in 1962 or 1963 and exponentially more than there was at the founding of the constitution,” McKinney said. “Both in terms of the scope of impact as well as the breadth of impact on the criminal justice system, the current system has an impact far greater than there was in the 1960s and before.”
Plaintiffs argue that there is also a governmental interest in restoring voting rights upon release of felons: “The criminal justice system’s interest in rehabilitation and deterrence are advanced by restoration of voting rights to individuals who live in their communities,” the suit states. And while it acknowledges that the U.S. Supreme Court has given the states broad authority over elections, it also argues that restrictions on voting deserve special scrutiny, as the state Supreme Court declared in a 1978 case, Ullend v. Growe, which dealt with the placement of candidate names on the ballot.
“It is well established that the exercise of the political franchise is a ‘fundamental right,’ the court wrote in that case. “Legislative enactments which directly infringe such rights are subject to ‘strict scrutiny’ review.”
The suit asks the Ramsey District Court to declare Minnesota’s current practice of denying voting rights to released felons a violation of the Minnesota Supreme Court and to rule that voting rights should be restored to anyone upon release from incarceration. It also seeks an order telling the secretary of state to “take all necessary measures” to restore voting rights.
Coleman said the lawyers are seeking expedited action by the courts with a hearing coming perhaps as early as the first of next year. He said they hope to have the case resolved in time for the 2020 election.
Minnesota has the third-shortest average incarceration length in the U.S. but the sixth-longest average probation length, which means more of a felon’s sentence is served outside of jail than inside. (Sixteen states and the District of Columbia now allow convicted felons to vote once they are released from custody, while two — Maine and Vermont — never rescind voting rights, even for those in prison.)
Lawmakers at the state Capitol have repeatedly made efforts to reform the current system. In addition to restore-the-vote bills introduced last session, one proposal would have capped probation at five years for all crimes except homicide and sexual assault.
The effort had bipartisan sponsorship, and was endorsed by conservative organizations such as Americans for Prosperity, though the measure failed to pass when Republicans who control the Senate wanted more time to consider the ramifications. Such a law would at least resolve some of the apparent inconsistencies in probation lengths, which often depend on the county where felons are sentenced and the judge who’s handing down the sentence.
The plaintiffs in the ACLU case illustrate the capriciousness of those sentences. Jennifer Schroeder was convicted of drug possession in 2013 and served one year in county jail. But her sentence include 40 years of probation, which means she will not be eligible to vote until 2053. Another plaintiff, Christopher James Jecevicus-Varner, was also convicted of drug possession, in 2009, though his probation period is 20 years. Still another plaintiff, Elizer Eugene Darris, was convicted in 2001 of second-degree homicide and served 17 years in prison; his probation will end in 2025.
Opponents of restore-the-vote efforts argue the denial of the right to vote is part of an offender’s punishment — and that one result of a restore the vote law could be longer prison sentences.
Restore-the-vote efforts have the support of Gov. Tim Walz as well as Secretary of State Steve Simon — the defendant in the ACLU suit — and Attorney General Keith Ellison, who is charged with defending the state against the suit in court.
“Living with dignity and respect means being able to participate fully in the life of your community, and voting is one of the most powerful ways you can do that,” Ellison said in a statement. “I have argued for a long time that people who are no longer incarcerated but are on parole or probation should be able to vote. Every year that I served in the Minnesota House, I authored bills to make that easier. In the last legislative session, I supported a bipartisan bill to restore voting rights that made significant progress in the House. As attorney general, however, my role is to defend the constitutionality of Minnesota’s duly enacted laws. I will do that in this case.”