The two people whose names topped a 2019 lawsuit that led the way for Minnesota to restore voting rights to people released from incarceration have asked to intervene in a lawsuit aimed at reversing those gains.

Jennifer Schroeder and Elizer Eugene Darris were among the formerly incarcerated Minnesotans who still couldn’t vote because they remained on probation or parole. While their lawsuit against Secretary of State Steve Simon was rejected by the Minnesota Supreme Court in February, the four-year legal battle brought wide attention to the issues of disparate probationary periods and questions over when voting rights should be restored. After the court ruled, the DFL-controlled Legislature voted to return voting rights to people once they leave prison or jail.

An estimated 50,000 people no longer in prison or jail but still under federal, state or local supervision since June 1 have been able to register to vote. Both Schroeder and Darris registered on that day, with Schroeder being the first to sign up at an event sponsored by advocates and Simon.

Less than a month later, an action was filed in Anoka County to block the law as an unconstitutional action by the Legislature.  The Minnesota Voters Alliance filed suit against Simon, Anoka County elections officials and the warden of the state prison at Lino Lakes. The Voters Alliance has filed other suits challenging election laws, including use of absentee ballots and a ban on wearing campaign-related apparel at polling places.

At issue in the suit is the interpretation of a state constitutional provision that says people convicted of a felony lose their right to vote “unless restored to civil rights.” While the plaintiffs in the suit agree that the Legislature has the authority to decide when those rights are restored, it cannot pick and choose among the civil rights that people lose when in prison and regain when they are released.

In other words, the Legislature would have needed to restore all civil rights to probationers and parolees — including the freedom to travel, to own firearms or even drink alcohol — not just the right to vote. The claim states: “That’s ‘civil rights,’ plural, meaning all civil rights that a non-felon possesses.” 

“To be clear, the Minnesota Supreme Court in Schroeder did state that under Article VII, Section 1, ‘the Legislature has broad, general discretion to choose a mechanism for restoring the entitlement and permission to vote to persons convicted of a felony,’” the lawsuit states. “But the ‘certain events’ to which the court refers must be the restoration of all ‘civil rights.’ The court’s statements cannot be read to authorize the Legislature to skip the required restoration of all civil rights in order to add voters to the Minnesota voter roll.”

The suit claims that the state, county and Department of Corrections are in violation of the constitution by registering people convicted of felonies but still under supervision. The court is being asked to issue a declaratory judgment that their actions are unconstitutional. 

The Minnesota Voters Alliance, along with two Anoka County voters, are the named plaintiffs but are being represented by attorneys with the Upper Midwest Law Center, a conservative legal group that takes cases without charge. It says its mission is to “pursue pro-freedom litigation safeguarding against government overreach, left-wing special interest agendas, constitutional violations, and public union corruption.” While it has challenged state emergency actions during the COVID-19 pandemic, it also represented some north Minneapolis residents who claimed the city of Minneapolis was violating its charter by underfunding policing.

Doug Seaton, the founder and president of the law center, said it agreed to file the case when no one else appeared to be challenging the new law.

“The fundamental issue in the case is whether the Legislature can in fact pick and choose which civil rights it wants to bestow on those who are still serving their sentences,” Seaton said. “We don’t think they can.” 

The clear path to doing what House File 28 did is a constitutional amendment, Seaton said.

Last week the ACLU of Minnesota, on behalf of Schroeder and Darris, asked for the right to intervene in the lawsuit. Anoka County District Court Judge Thomas Lehmann will decide whether to allow the intervention after a hearing set for Oct. 30. If it is allowed to intervene, the ACLU attorneys said they will move to dismiss the suit, arguing that the plaintiffs have not suffered an injury and that Anoka County is not the proper venue for a suit against the state.

Anoka County and the state attorney general’s office have also filed motions to dismiss the lawsuit.

Much of the ACLU court filing attempts to make the case that Schroeder and Darris should be allowed under Minnesota court rules to intervene in the case, something the Voters Alliance has said it will oppose.

“… facing disenfranchisement as a result of this litigation, it is hard to envision any injury or interest that could provide a more compelling basis for intervention (under court rules),” the ACLU filing states. 

In an interview, ACLU staff attorney David McKinney addressed the substance of the Voters Alliance claims.

“We think Schroeder controls,” McKinney said of the court decision. “We think it clearly states that a government action can restore voting rights, including the Legislature acting to initiate a law that does so. I don’t think the court could have been much clearer, that the Legislature has the authority to grant these rights back to individuals at a time it deems is appropriate.”

As to the Voters Alliance assertion that the plural in civil rights means the Legislature would be required to restore other rights as well, McKinney disagreed with that legal theory.

“If the Legislature wants to restore other rights to folks who are living in the community and contributing, we would welcome that,” he said. “We think it contributes to rehabilitation. But we don’t think the Legislature is bound by the constitutional provision to do that.”

McKinney also said that there is no list of civil rights in the state constitution or statute. The Voters Alliance suit cites a legal dictionary to delineate which might have to be restored and which would not. But because the provision is within the section of the constitution delineating voting rights, it can be strongly argued that voting was the right they were restricting, McKinney said.

McKinney said he is suspicious that the suit is actually an attempt to discourage people covered by the law from registering and voting, that the motivations behind it are political and not constitutional.

Seaton, in turn, said he thinks the motivation of the bill’s sponsors was to increase the number of voters that could likely favor DFL candidates. 

“We think it is not a surprise that they would pick voting,” he said. “We think there’s a partisan purpose.”

Schroeder was convicted of possession of a controlled drug in 2013. Though her county jail term was for one year, the trial judges included 40 years of probation. She would not have been able to vote until age 71, despite earning a college degree and working as a drug and alcohol counselor.

Darris was convicted as an adult at age 15 for homicide and sentenced to life in prison. That conviction was overturned and Darris was resentenced to 25 years in prison and he was released under supervision in 2016. He would not have been allowed to register to vote until 2025.

In the 6-1 decision issued in February and written by Justice Paul Thissen, the Minnesota Supreme Court rejected their request that it order a restoration of voting rights to released felons. The court cited Minnesota law that says rights are restored upon “discharge of sentence,” which include probation and parole. But the court also invited the Legislature to take up the issues raised, including that the system has a disparate impact on Black, Hispanic and Indigenous people.

“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 section 609.165 does not violate — the fundamental right to vote,” Thissen wrote. “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.”