The ACLU of Minnesota has appealed the dismissal of a lawsuit challenging the constitutionality of the state’s ban on voting by convicted felons who are still on probation.
The suit was filed a year ago in Ramsey County district court after the state Legislature failed to act on bills that would have restored voting rights when a convicted person is released from custody. An estimated 53,000 people in Minnesota are out of prison but still under supervised release and are not allowed to vote.
In asking the appeals court to overturn Judge Laura Nelson in Schroeder v. Simon, the ACLU restates its claim that voting is a fundamental right and that the state has not stated a rational reason for denying that right to people who have been released from incarceration. It also makes a claim that it violates the equal protection clause of the 14th Amendment to the U.S. Constitution.
“The current disenfranchisement scheme cannot survive Minnesota’s rational-basis review because the Legislature has never articulated any purpose for denying voting rights to individuals who live in the community on probation, parole, or supervised release,” the appeal states. [PDF]
“Appellants function as participating members of their communities identical in all relevant respects to eligible voters: they work, volunteer, raise families, worship, pay taxes, hold and advocate political opinions, and participate in the private, civic, and public lives of their communities,” the appeal states. “In marked contrast to incarceration, they now have all of the rights, freedoms, and standing needed to participate in the state’s elections.”
One of the arguments for not using probationary periods to deny voting rights is the apparent capricious nature of those time periods. Among the named plaintiffs are Jennifer Schroeder, who was convicted of drug possession in 2013 and served one year in county jail. But her sentence included 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.
Since the suit was filed but before the district court ruling, the Minnesota Sentencing Guidelines Commission voted to cap most probationary periods to five years. One of the reasons for the change was similar to a key argument in the lawsuit — that Minnesota’s probation periods vary depending on where someone is convicted. According to an analysis by the Robina Institute, the average length of probation in the 6th Judicial District in northeast Minnesota is 3.3 years. But in the 7th Judicial District, in west-central Minnesota, it’s 7.4 years. Most striking is the difference in the average length of probation between Hennepin and Ramsey counties. It’s 3.3 years in Hennepin County, but 5.9 in Ramsey.
And while 82 percent of current terms for supervised release are five years or less, another 13 percent of felons received probation terms of up to 10 years, with the rest sentenced to probation terms of 15-to-40 years. And while Minnesota has one of the shortest average prison sentences in the country, it also has one of the longest average probation periods for those convicted. That led some on the board to warn that judges might extend sentences for those they think need longer periods of supervision.
The Legislature did not act to veto that five-year cap on most probation periods and it went into effect August 1. It is not retroactive.
The ACLU suit was dismissed in August by Nelson [PDF], who ruled that the plaintiffs had not shown that convicted people have a fundamental right to vote, nor that the state lacked a rational basis to deny that right until probation and parole periods have been exhausted.
Nelson wrote that both the state constitution and a 1963 statute deny voting rights to those convicted of crimes. The 1963 law, she wrote, was considered a reform. “In enacting (the statute) the Legislature demonstrated a clearly legitimate policy goal ‘to promote the rehabilitation of the defendant and his return to his community as an effective participating citizen’ by automatically restoring civil rights to persons convicted of felonies after their sentence has ended,” Nelson wrote.
“The Court, applying a deferential standard, finds that (the statute) which automates a process that was previously decided case-by-case, and restores civil rights at the end of a felony sentence, is clearly a ‘rational means’ to achieve the Legislature’s policy goal of promoting rehabilitation of persons convicted of felonies.”
Nelson wrote that the ACLU made compelling arguments about the disproportionate impact of the state system on communities of color. African Americans, Native Americans and Latinos are convicted of felonies at rates far outside their share of the state population and therefore are more likely to be without voting rights, the lawsuit stated. “Ultimately, however, this is an issue to be addressed by the legislature,” Nelson wrote.
The campaign to Restore the Vote has support from both liberals and some conservatives; it has been endorsed by Gov. Tim Walz, Simon and Attorney General Keith Ellison. Even so, the attorney general’s office defended the state in the suit.
The Sentencing Project estimates that of the 5.18 million Americans without voting rights due to felony convictions, three-quarters are not incarcerated and are living in communities.
On Nov. 24, a group of 14 state attorneys general led by District of Columbia Attorney General Karl Racine filed a friend of the court brief supporting the ACLU suit.
“Felon disenfranchisement is the product of a patchwork of state laws, which vary widely,” the brief states. “In recent years, however, a trend has emerged: based on doubts about the efficacy of disenfranchisement, states have begun moving away from broadly disenfranchising former felons,” the brief states.
“Moreover, the disproportionate impact of felon disenfranchisement laws on voters of color raises serious state constitutional and democratic concerns. Minnesota’s felon disenfranchisement law, which conditions restoration of voting rights on a former felon’s completion of probation, parole, or supervised release, is out of step with these important interests.”