During oral arguments in a lawsuit seeking the restoration of voting rights for people convicted of crimes when they are released from prison, Minnesota Supreme Court Justice Natalie Hudson asked if the courtroom was the correct venue for the issue.
“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,” she said in November of 2021.
The attorneys who brought the case, Schroeder et. al v. Secretary of State, might have wondered what the Latin phrase is for “been there, done that.” They filed the suit asking the court to find a constitutional right for released felons to vote only after trying the legislative path for years, without success.
“It’s absolutely crucial that this court should be the refuge of the disenfranchised,” responded attorney Craig Coleman, who argued the case pro bono for the American Civil Liberties Union.
Since those arguments were made, the lawyers — and the estimated 50,000 people convicted of felonies and are still “on paper” and can’t register to vote — have been waiting for a decision. That nearly 14-month period is an unusually long time between arguments and the release of a decision, leading to speculation about the reasons. Were justices waiting until after the 2022 election? Are they waiting to give lawmakers another try? Are they divided on what to do?
“It’s not terribly surprising that the court is being deliberative on this issue,” said David McKinney, ACLU Minnesota staff attorney and part of the legal team. “It’s a high-stakes decision.” But he said he has wondered if the court took into consideration the election cycle and reflected federal court practice of not disrupting the status quo in close proximity to voting.
Lawyers who argue cases are, of course, anxious for a ruling, McKinney acknowledged.
“It does seem like a long time since the case was argued,” he said last week.
Something else happened during that long waiting period: Republicans who were able to block bills labeled Restore the Vote lost control of the Senate. Senate Republicans favored the status quo of requiring the same people to wait until the end of the probation period, calling it part of their sentence for crimes committed.
Now, both the House and Senate appear to have majorities in favor of the bill, and Gov. Tim Walz has pledged to sign it should it pass.
Two of the first bills filed in both chambers — House File 28 by New Hope DFLer Cedrick Frazier and Senate File 26 by Sen. Bobby Joe Champion, DFL-Minneapolis — would require the state to notify people as they are released from custody that they can register to vote immediately. It is part of a national movement to give ex-offenders voting rights as both a racial justice step and as part of their rehabilitation and reintroduction into society.
The bill is relatively brief, leading with this sentence: “An individual convicted of a felony has the civil right to vote restored when the individual is no longer incarcerated for the offense, or upon sentencing if no incarceration is imposed.”
“We know it is one of the bills that have been identified as important, something that we should make a priority,” said Champion, who is also the president of the Senate. He said he hasn’t spoken to members of the court but isn’t waiting for them to rule.
“My hope is that we pass it right away,” he said, “and those people who have been disenfranchised have an opportunity to participate in pro-social activities in our democracy.”
The Frazier bill is set for its first hearing in the House Elections Finance and Policy Committee Wednesday.
While the issue has had bipartisan support in other states, that hasn’t yet shown up in Minnesota. There is a perception among some Republicans that the issue will help Democratic candidates, especially in urban areas. But Champion points out that only a third of the ex-offenders affected are from Hennepin and Ramsey counties.
According to a survey by the National Conference of State Legislatures, 16 states wait until probation ends before restoring voting rights. Vermont, Massachusetts and the District of Columbia never revoke the right to vote. A plurality of states — 21 — automatically restore voting rights upon release from incarceration with the rest banning some felons from voting permanently, requiring a governor’s pardon or having some other waiting period.
Champion said there is confusion among ex-offenders about the rules, with many thinking they will never be allowed to vote because of their past convictions. He said he recalled meeting with voters at the doorsteps who disputed his assertion that they could register once they were “off paper,” a term meaning no longer under supervision.
“I would say, ‘Who’s the lawyer here, me or you?’” Champion said. “Yes you can.” One of Champion’s first bills when he first took office in the Minnesota House in 2009 was to require the state to notify ex-offenders when their probation expired that they could register. It was vetoed by then-Gov. Tim Pawlenty, a Republican.
For Champion, voting is a key part of rehabilitation.
“If you are a contributing member of society and you have a voice in what is happening, that is rehabilitating,” he said. “You feel a part of it and not ostracized and perpetually punished because you made a mistake.”
One of the named plaintiffs in the case, Elizer Darris, stood with Secretary of State Steve Simon Monday to promote Simon’s request for a restore-the-vote bill. While Simon defended the current law in that litigation, he supports the change via the Legislature.
“I’ve been free for almost seven years at this point,” Darris said. “And each year, every single year, while I’m helping drive thousands to the polls, I’m not able to hold up that little red sticker that says, ‘I Voted.’”
Another ex-offender, Zeke Caligiuri, said the bill would show that voting is part of reentry.
“This bill is a reinvestment in the humanization of people who we haven’t always looked at as human. As one of those people, I know it is very real and is so very important,” he said.
Minnesota has shorter-than-average prison sentences but longer-than-average probation periods. The lead plaintiff in the ACLU lawsuit that was filed more than three years ago — Jennifer Schroeder — served one year in jail for drug possession but remains in the midst of a 40-year probation period that doesn’t expire until 2053.
After the Legislature passed on changing the probation system, the state Sentencing Guidelines Commission capped probation for most felonies at five years. The commission had heard testimony from the Robina Institute that while 82% of people convicted of crimes were given less than five years probation, 13% of felons received probation terms of up to 10 years, while the rest were sentenced to probation terms of 15 to 40 years.
In 2022 alone, the state Department of Corrections released 4,639 additional people from prison who are on some form of probation or community supervision.
The institute also found vast differences in probation lengths depending on where an offender is sentenced. The average length of probation in the 6th Judicial District in northeastern Minnesota is 3.3 years. But in the 7th Judicial District, in west -central Minnesota, it’s 7.4 years. There were stark differences even in the metro. It’s 3.3 years in Hennepin County, but 5.9 years in Ramsey County.
The changes do not apply to those sentences prior to the August 2020 effective date.
The heart of the ACLU challenge was that the current system has an inequitable effect, falling more negatively on people of color than whites because they are convicted of crimes at rates that exceed their presence in the population. Because of that, it violates the equal protection clause of the U.S. Constitution’s 14th Amendment, the ACLU argued.
The plaintiff’s argument relied on a 1991 case that found that longer sentences from crack cocaine than for powder cocaine had no rational basis and fell more heavily on Black Americans. That case also applied a Minnesota court precedent known as the “heightened rational basis test” that says that if the law has a disparate impact on people of color and the state cannot show a rational, race-neutral basis for it, the court can toss it out without giving its normal deference to acts of the Legislature.
That is what the lawyers in Schroeder asked the court to do, though judges at both the district court and appeals court rejected that invitation.
Attorneys for Attorney General Keith Ellison and Secretary of State Steve Simon asked the court to reject the ACLU suit, even though both politicians support restoring the vote to released felons.
While the plaintiffs are hoping for better luck with the current Legislature, they still want the Minnesota Supreme Court to rule and rule in their favor.
“This is a priority for the new Legislature — voting rights and a number of other access issues — and hopefully that means they can get something done,” McKinney said. “The Legislature should act. We said that when we filed the lawsuit. That’s not to say the court should wait for the Legislature to do so. The court should correct what is an egregious constitutional wrong.”
Legislatures are subject to change at the next election, he said. Courts take longer to change and are more inclined to stick with precedent on matters such as this.
“Who knows in the next election cycle which party will be in power and what they will decide to do with what we call the disenfranchisement scheme,” he said. “The court’s pronouncements on what is constitutional has a far more lasting impact.”
House Majority Leader Jamie Long, DFL-Minneapolis, said he has one eye on the court but wants the restore-the-vote bills to move at their own pace.
“Our job as legislators is to put forward what we think is right,” Long said. “I don’t know if the court is going to adjust its decision making based on us being in session or not. But there is strong support in both chambers.”