Voting ban for probationers upheld
MN Court of Appeals finds Minn. Stat. § 609.165 constitutional
The Minnesota Court of Appeals has upheld the constitutionality of a state law that restores felons’ voting rights only after they serve their full sentences—including probation. (Read the ruling here.)
Minn. Stat. § 609.165 does not violate appellants’ voting, equal protections or due-process rights under the Minnesota Constitution, the Court of Appeals ruled.
The panel’s unanimous ruling, written by Judge Matthew E. Johnson, was handed down Monday. The published opinion upholds a lower court’s ruling that rejected plaintiffs’ arguments, while granting summary judgment to Secretary of State Steve Simon.
Through counsel, appellants said they will appeal to the case to the Minnesota Supreme Court.
“Felony disenfranchisement is one of the enduring and systemic racial disparities in our criminal justice system,” ACLU-MN staff attorney David McKinney said in a written statement. “Depriving people of their right to vote further entrenches these disparities.”
Added McKinney, “We will keep fighting and plan to seek review of this ruling in the Minnesota Supreme Court.”
Plaintiffs’ case
In October 2019, plaintiffs Jennifer Schroeder, Elizer Darris, Christopher Jecevicus-Varner and Tierre Caldwell all sued Simon in his official capacity as Secretary of State.
Plaintiffs, all of whom had been convicted of felonies, sought to remedy what they called the “unconstitutional deprivations of their fundamental constitutional right to participate in the democratic process.”
In their prayer for relief, the four asked the District Court to declare § 609.165 unconstitutional, at least to the extent it that prevents felons from voting while on supervised release. They also asked for a declaration that felons regain voting rights as soon as they are “released or excused from incarceration.”
In August 2020, Ramsey County District Court Judge Laura E. Nelson filed a 14-page order denying plaintiffs’ summary judgment motion and dismissing their case with prejudice.
Schroeder’s case was briefly a cause célèbre at the state Capitol in February 2019, during legislative debate over probation reform.
Convicted on felony drug charges in 2013, Schroder was granted a downward departure that resulted in a one-year county jail sentence. But her plea agreement also required her to serve 40 years’ probation—meaning she won’t be able to vote until 2053, when she turns 71.
Her case was cited by probation reform proponents on the Sentencing Guidelines Commission as well. In January 2020, a divided commission adopted a new statewide sentencing policy that caps most Minnesota felony probations at five years. Because the legislature was then as now divided, the commission’s action stood and attained the force of law later that year.
Darris, now an ACLU-MN organizer and a member of Attorney General Keith Ellison’s Conviction Review Unit advisory board, was convicted second-degree murder in 2001 as a teen, and imprisoned until 2016. After he was freed from prison, he was placed on supervised release. He is scheduled to remain on probation until 2025.
The probation terms of Jecevicus-Varner and Caldwell both expired while the case was on appeal and their voting rights were subsequently restored, according to Johnson’s written ruling. As a result, the Court of Appeals deemed their claims moot and dismissed their appeals.
District Court ruling
In her August 2020 ruling, Ramsey County District Court Judge Laura E. Nelson wrote that plaintiffs argued compellingly against felony disenfranchisement—particularly with regard to the criminal justice system’s inequitable treatment of people of color.
“The court is aware of and troubled by the fact that the criminal justice system disproportionately impacts Black Americans and other communities of color in Minnesota and the subsequent effect this impact has on those communities’ ability to vote,” Nelson’s order says.
“Ultimately, however,” she continued, “this is an issue to be addressed by the legislature.”
Nelson found that convicted felons, under the Minnesota Constitution, do not have a fundamental right to vote. The challenged statute, she ruled, survives a traditional rational-basis review and, as a result does not violate plaintiffs’ equal protection or due process rights.
She granted Simon’s summary judgment motion and dismissed plaintiffs’ case with prejudice.
Her ruling did not separately discuss plaintiffs’ right-to-vote claims, Johnson’s Court of Appeals ruling notes, but it it interpret Article VII, |Section 1, of the Minnesota Constitution in the course of analyzing plaintiffs’ other arguments.
The four plaintiffs filed notice of appeal on Sept. 30, 2020.
Court of Appeals
At the Court of Appeal, Judge Johnson writes, plaintiffs submitted a lengthy report from a sociology professor, which calculates Minnesota’s per-capita disenfranchisement rate at various points in state history. In 2018, that report indicates, 0.21% of Minnesota’s total voting-age population was in prison; another 1.22% were on felony probation, parole or supervised release.
The professor also calculated disenfranchisement rates by race. The report determined that 4.5% of voting age Blacks and 8.3% of American Indians in Minnesota currently are disenfranchised because of voting restrictions for felons on supervised release. That compares to less than 1% of Asian and white Minnesotans, the study showed.
Counsel for Simon neither disputed that data nor provided any contrary evidence, Johnson writes.
In a footnote, Johnson notes that the sociologist’s report does not indicate whether disparities in the state’s disenfranchisement rates by race would have been reduced had Nelson’s granted plaintiffs’ requested relief. In fact, Johnson suggests, the opposite might be true.
“Our review of the data in the professor’s report indicates that, if felons were prohibited from voting only while incarcerated, the disparities would increase, not decrease,” his footnote says. “But we need not consider that issue.”
The three-judge Court of Appeals panel also included judges Carol Hooten and Randall J. Slieter.
During oral arguments before the Court of Appeals on Feb. 24, 2021, counsel for appellants argued that Article VII, Section 1, should be interpreted to say that a felon’s civil rights get restored upon release from custody.
Counsel further argued that, if that interpretation is correct, any statute that fails to restore civil rights until after the felon is discharged from probation is inconsistent with the Minnesota Constitution.
Not so, the Court of Appeals ruled.
“There is no language in that section—or any other section of Article VII—that reasonably could be understood to mean that a felon’s civil rights are restored by his or her release from incarceration, or by being placed on probation without any incarceration,” Johnson writes.
“Appellants’ argument effectively would require this court to add words to Article VII, Section 1,” he adds, “which we are unwilling to do.”
The plaintiffs’ equal protections and due process arguments are similarly unavailing, the court found.
In District Court, Nelson had found that appellants lacked the fundamental right to vote because the state constitution—not the challenged statute—expressly disentitles them.
That finding, Johnson writes for the Court of Appeals, is consistent with U.S. Supreme Court precedent (1974’s Richardson v. Ramirez ruling), which held that a state law disqualifying felons from voting did not violate their 14th Amendment equal protections.
Nor does the Minnesota statute violate the state constitution’s due-process clause, Johnson writes, citing the state Supreme Court’s 2020 ruling in Fletcher Properties Inc. v. City of Minneapolis. That, he writes, is because “the objective of the law is permissible, the means chosen to achieve that objective are reasonable, and the legislative body did not act arbitrarily or capriciously in enacting the law.”
“Subdivisions 1 and 2 of Section 609.165 of the Minnesota Statutes are not unconstitutional on the ground that they violate the right-to-vote provisions in Article VII, Section 1, of the Minnesota Constitution; the equal-protection principle arising under Article I, Section 2, of the Minnesota Constitution; or the due-process clause in Article I, Section 7, of the Minnesota Constitution,” Johnson concludes.
With that he affirmed the lower court, while dismissing the mooted claims.