The plaintiffs in a case that went before the Minnesota Supreme Court Tuesday believe the state should restore voting rights to people convicted of felonies once they are released from custody.
And both Secretary of State Steve Simon and Attorney General Keith Ellison personally agree with that assertion — that waiting until released people clear probation or parole before voting rights are restored is counterproductive to the goal of rehabilitation.
But in their official positions — as the people who, respectively, run Minnesota’s elections and defend the state against lawsuits — both Simon and Ellison argued against the restoration of voting rights for felons upon release from incarceration.
“Whether rights should be restored earlier is certainly up for debate,” said Assistant Attorney General Angela Behrens. “And if this were a hearing in front of a legislative committee, the parties would likely be aligned.” But changing the statute by court order is beyond the court’s authority, the state argued.
The case, Jennifer Schroeder et al, vs. Secretary of State Steve Simon, was filed two years ago by the ACLU of Minnesota and lawyers from the firm of Faegre Baker Daniels. Its basic claim is that state law denies felons who are no longer in prison or jail the right to vote without a rational basis. And because voting is a fundamental right — and because those impacted by the law are disproportionately people of color — it violates the equal protection clause of the U.S. Constitution’s 14th Amendment, which says that people in similar circumstances must be treated similarly under the law.
Unlike those still in prison, the estimated 52,000 Minnesotans currently on probation, parole or supervisory release live in communities where they work, go to school, are members of churches and community groups. And being involved in government via the vote helps re-engage them and aids rehabilitation, which was the stated purpose of the 1963 law at issue, the plaintiffs argue.
“The Legislature literally never articulated any reason or interest to disenfranchise persons on community supervision,” said Craig Coleman, a partner with the Faegre firm. “It’s utterly arbitrary.”
And yet the state prevailed in both district court and at the Minnesota Court of Appeals, with judges at both levels finding that there is no fundamental right for felons to vote — and that the state demonstrated a rational reason for the 1963 law change.
“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,” Ramsey County District Court Judge Laura Nelson wrote in her ruling.
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.
A similar sentiment was expressed Tuesday by state Supreme Court Justice Natalie Hudson. “It does seem to me that the distinctions you are asking us to draw are distinctions that are better left to the Legislature to draw,” Hudson said.
Coleman said the court is “the ultimate protector of constitutional rights, particularly with respect to the right to vote. It’s absolutely crucial that this court should be the refuge of the disenfranchised.”
Coleman also argued that his clients have been before the Legislature year after year asking for reforms to the 1963 law, only to be rebuffed. While there is majority support in the House, where the DFL has majority control, the reform bills have not moved in the GOP-controlled Senate.
Since the case was filed, Minnesota’s Sentencing Guidelines Commission has capped probation for most felonies at five years. But those changes took effect in August 2020 and do not apply retroactively, which means they are no help for the named plaintiffs in the case before the court. Schroeder, for example, served one year for drug possession but was given a 40-year period of probation. Now a substance abuse counselor, Schroeder will not be allowed to vote until she is 71 years old.
Coleman’s argument relied heavily on a 1991 Minnesota Supreme Court case, State v. Russell, in which the court disallowed a criminal law that levied heavier penalties for possession of crack or base cocaine than for powder cocaine. Because crack cocaine was predominantly used by Black Americans while powder was predominantly used by whites, the court relied on the equal protection clause to find the state showed no rational basis for the difference in sentencing, and the law was unconstitutional due to its disparate impact on Blacks.
That case also applied Minnesota’s unique “heightened rational basis” test, which says that if a law has a disparate impact on people of color and the state cannot show a rational, race-neutral basis for it, the court can invalidate the law without giving its normal deference to the Legislature.
“It seems to me the critical importance of racial equality in our multicultural society warrants this closely tailored modification,” Justice Rosalie Wahl wrote in the Russell decision. “When a facially neutral criminal statute is shown to produce an inadvertent discriminatory impact based on race, a different manner of applying our rational basis test is necessary. In this context, we may apply our rational basis test with less deference than we afford generally to legislative enactments.”
Coleman said that while Black Minnesotans make up 4 percent of the voting age population, they make up 20 percent of the people denied the right to vote under current state law. And though American Indians make up less than 1 percent of the voting age population, they make up 7 percent of those on probation and parole. Hispanics are 2.5 percent of the voting-age population but 6 percent of those still waiting for their voting rights to be restored.
Yet Coleman said that the law fails to meet even less-stringent court tests than heightened rational basis. “This scheme fails under all but the most-toothless forms of constitutional review,” he said.
Behrens of the attorney general’s office argued that the state constitution says those convicted of felonies are denied the right to vote until those rights are restored. The plaintiffs are not challenging the validity of that constitutional provision, only the way the Legislature implemented it.
Before 1963, restoration of rights required that people who had completed their sentences petition the governor. After passage, voting rights were automatically restored when all aspects of a sentence are completed — which includes probation, prison time and parole, which in Minnesota is referred to as supervised release.
“At no point in Minnesota history has restoration been before completion of sentence,” Behrens said.
“The court should affirm (the lower court rulings) because the appellants’ claims are based on a fundamental right that the constitution forecloses, and that is a right to vote before completion of a felony sentence.” Behrens said.
Several justices quizzed Behrens on whether they shouldn’t consider how the felon voting restoration statute exacerbates disparities in the criminal justice system. “Why would we just ignore that?” asked Justice Anne McKeig.
“The appellants have identified real concerns that those in the criminal justice system should continue to take a look at,” Behrens said. “But it is not an issue traceable to the statute. If the statute went away, the disparities would still exist … the Constitution is what disenfranchises. The statute alleviates that constitutional burden.”
Hudson later noted the large number of amicus briefs supporting the ACLU’s case arguing that if the purpose of the 1963 law was to foster rehabilitation, its effect is the opposite.
“If the goal is rehabilitation, this isn’t doing it,” Hudson said. “Even the probation officers and the Ramsey County Attorney’s office say if you want to rehabilitate people, the best way is to get them re-engaged in the community again. And voting is a huge part of that.”
Behrens said the 1963 law expanded re-enfranchisement. “There is a fit between what the Legislature did and the stated purpose. Rational basis, even heightened rational basis doesn’t require the Legislature to justify all of the laws it didn’t pass.”
And she argued that the states that are reforming laws governing voting rights for released felons are coming from Legislatures and via voter initiatives, not from the courts. Twenty one states allow people to vote once they are released from incarceration. The District of Columbia, Maine and Vermont never rescind voting rights, even for those in prison.
Chief Justice Lorie Gildea said the court would rule “in due time.”
After oral arguments, Elizer Darris, one of the named plaintiffs in the suit, said he won’t regain his right to vote until 2025 but volunteers on campaigns, drives voters to the polls, knocks on doors, organizes forums and testifies before the state Legislature.
“Yet, when all is said and done, I can’t get that little red sticker that says ‘I voted.’” he said.