The Minnesota Supreme Court ruled Wednesday that a state law requiring felons to wait until the end of their probationary period to have voting rights restored does not violate the state constitution. 

The 6-1 ruling disagrees with attorneys representing former offenders who had finished prison and jail terms but remained ineligible to vote because of lengthy probation or parole. They argued in Schroeder v. Simon that the state law violates equal protection provisions of the state and U.S. constitutions because there is no rational basis to deny a fundamental right. They also said the burdens of the law fall more heavily on Blacks, Hispanics and Native Americans.

“Plaintiffs have not offered sufficient evidence to prove that (state law) violates the equal protection principle contained in the Minnesota Constitution,” wrote Justice Paul Thissen for the majority. He later wrote that the court was concerned about the racial inequities raised, but said it was up to the Legislature to change statutes or the people of the state to change the constitution.

The state constitution says that offenders lose their right to vote “unless restored to civil rights.” It is a state law that defines what that clause means, and the sate passed a law in 1963 saying it would occur when people have completed all terms of their sentence, including probation and parole.

“… although (state law), on the claim raised here, passes constitutional muster, we recognize the troubling consequences, including the disparate racial impacts, flowing from the disenfranchisement of persons convicted of a felony,” Thissen wrote. “The Legislature retains the power to respond to those consequences. The Minnesota Constitution empowers the Legislature to address the public policy concerns raised by appellants in this case; public policy concerns that the Secretary of State shares and that directly implicate — even if (state law) does not violate — the fundamental right to vote.  We should all take care that persons not be deprived of the ability to participate in the political process out of fear of our fellow citizens.”

In her dissent, Justice Natalie Hudson, said the court “eschews its responsibility” to protect equal protection of laws.

“The fundamental right to vote, enshrined in Article VII of the Minnesota Constitution, demands generous and fierce protection by the judiciary,” Hudson wrote. “Likewise, the guarantee of equal protection, found in Article I, Section 2, of our state constitution, mandates that this court serve as the final guarantor of equality and fairness, and that we scrutinize any statute that improperly discriminates among the people of this state.

“Appellants ask us to fulfill that revered responsibility by invalidating the disenfranchisement provision for people convicted of felonies under Minnesota Statutes section 609.165 (2022).  The court eschews that responsibility. I would not, and because I conclude that (state law) fails under the equal protection guarantee of Article I, I respectfully dissent.”

The suit was filed after years of failed attempts to change the law via legislation. But this year, bills to restore voting rights at release from incarceration are moving in both the House and the Senate, both controlled by DFL majorities. The House version — House File 28 — passed Feb. 2 on a near-party line vote. It has moved through two Senate committees and is eligible to be scheduled for a floor vote.

The reaction to the case from both the plaintiffs and the defendant was similar, reflecting that Simon supports restore voting rights but was required to defend the state law.

“While our office defended the law as it is currently written, I believe that the policy is long overdue for a correction,” Simon said. “The Minnesota Supreme Court has made it clear that the future of voting rights for Minnesota residents who have left prison behind lies in the hands of the Legislature.”

Elizer Darris, one of the named plaintiffs, called Wednesday “a dark day and yet another stain on democracy. For the high court to acknowledge that there are troubling racial disparities in the numbers and in the execution of the current law and yet take no steps to end the racist state policies beyond expressing what to me is essentially ‘thoughts and prayers’ is exceedingly disheartening.” But he said he would continue to work to get Senate passage of the restore the vote bill.

Sen. Bobby Joe Champion, DFL-Minneapolis, said the ruling will spur passage.

“We’ve heard from the Supreme Court that this issue requires action from the Legislature, and we are prepared to pass my legislation,” Champion said after the ruling.

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.”

Republicans in the House tried to amend the bill to exclude people convicted of major crimes from immediate restoration. They also argued that a person convicted of election fraud, who often do not serve time in jail or prison, should not have the right to vote restored until some period of time has passed. All amendments were defeated.

A long legal journey

The case was filed in October 2019 by attorneys for the American Civil Liberties Union (ACLU) and Faegre Baker Daniels on behalf of a group of former offenders who have not regained the right to vote due to lengthy probationary periods. Defending against the suit were attorneys for the Office of the Attorney General on behalf of the named defendant, Secretary of State Steve Simon.

The lead plaintiff, Jennifer Schroeder, was convicted of drug possession in 2013 and served one year in county jail. But her sentence includes 40 years of probation, which means she will not be eligible to vote until 2053. That, her attorneys argued, denies a fundamental right with no rational basis — a requirement of most laws that deny civil rights.

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, the attorneys 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.

The state prevailed in both the district and court of appeals and was argued before the state Supreme Court on Nov. 30, 2021. The 14-month period between arguments and release of the ruling was unusually lengthy but not unprecedented.

Peter Knapp, a law professor at Mitchell Hamline who follows the state Supreme Court closely, said the court usually issues decisions three to eight months following argument.

“Longer delays — like the delay in Schroeder — are not common, but are also not unprecedented,” Knapp said. During 2022, in addition to Schroeder, there were a handful of other cases that took a year or more. In 2021, there were none, Knapp said.

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.

After a divided Legislature passed on changing the probation system for several sessions, 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.

Legislatures are subject to change at the next election, David McKinney, ACLU Minnesota staff attorney and part of the legal team, 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.”

Editor’s note: This story has been updated with reaction to the ruling from Sen. Bobby Joe Champion, DFL-Minneapolis, plaintiff Elizer Darris and Secretary of State Steve Simon.