Alabama’s grossly unconstitutional felony disenfranchisement scheme.

Alabama’s Felony Disenfranchisement Scheme Is Grossly Unconstitutional and Racially Biased

Alabama’s Felony Disenfranchisement Scheme Is Grossly Unconstitutional and Racially Biased

The law, lawyers, and the court.
Oct. 6 2016 3:22 PM

Alabama’s Failure of Moral Turpitude

Its felony disenfranchisement scheme is grossly unconstitutional and racially biased.

voter disenfranchisement.

DanHenson1/Thinkstock

In 1901, Alabama passed a constitution that stripped voting rights from any person who committed a “crime involving moral turpitude.” The purpose of this disenfranchisement, the president of the convention explained, was to “establish white supremacy in this state”; Alabama labelled those offenses more frequently committed by blacks as crimes “involving moral turpitude” in order to purge minorities from the voter rolls. In 1985, the Supreme Court unanimously invalidated the “moral turpitude” provision as a violation of the Equal Protection Clause. But 11 years later, the state quietly reinserted the same words into its felony disenfranchisement law. Today, the statute has helped to disenfranchise 250,000 Alabamans, most of them black. Indeed, a stunning 15 percent of otherwise qualified black voters in Alabama can’t cast a ballot because of the state’s felony disenfranchisement law.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

A new lawsuit spearheaded by the Campaign Legal Center argues that the statute is a gross violation of Alabamans’ rights under both the Voting Rights Act and the United States Constitution. Their ambitious suit—which is joined by influential Alabama litigators, the white-shoe firm Jenner and Block, and voting rights luminary Pamela Karlan—combines conventional legal arguments with innovative constitutional theories in order to try to demonstrate that Alabama’s law contravenes the Due Process and Equal Protection Clauses of the 14th Amendment, as well as the 15th Amendment, the 24th Amendment, and the Voting Rights Act.

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On Tuesday, I spoke with Danielle Lang, deputy director of voting rights at the Campaign Legal Center, about the suit she helped to architect. Our interview has been edited and condensed.

Mark Joseph Stern: There are lots of draconian voting laws in America of dubious constitutionality. Why did the Campaign Legal Center choose to challenge this one?

Danielle Lang: We spoke to voting rights lawyers in Alabama who had reached out to the black community to say, “What is the most pressing issue here?” And the answer was felon disenfranchisement, which is one of the most sweeping set of voter suppression laws in the country.

We also learned that the history of Alabama’s law really lays bare the problem with felon disenfranchisement laws across the country. It’s a direct descendent of their 1901 constitution, which had the explicit purpose of disenfranchising black voters. Alabama’s all-white constitutional convention chose a vague standard like “moral turpitude” to make it easier to disqualify black voters. That’s why the Supreme Court struck down that language as racially discriminatory in 1985. The 1901 law went hand-in-hand with convict leasing, the practice of leasing out prisoners to perform manual labor for private companies with no compensation. Alabama was ramping up its conviction rate of blacks who committed minor offenses so they could reinvent forced labor and ensure that blacks would be kept out of the political process.

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Your lawsuit argues that the “moral turpitude” law violates the Equal Protection Clause, the 15th Amendment, and the Voting Rights Act, because it has a racially discriminatory purpose and effect. That’s pretty straightforward—but you also claim that it violates due process. Why?

Alabama has this absurd system that tells former felons they’re not eligible to vote if they’ve been convicted of “a felony involving moral turpitude.” But the state fails to tell anyone what “a felony involving moral turpitude” is. We’ve challenged that as arbitrary disenfranchisement, which presents a clear due process problem. We’ve also argued that it’s void for vagueness under the Due Process Clause.

Imagine you have a felony conviction—say, possession with intent to distribute. There’s no way to know whether that’s a crime “involving moral turpitude” that revokes your right to vote. But when you go to cast a ballot, you declare, under penalty of perjury, that you haven’t been convicted of a disqualifying felony. But what is a disqualifying felony? It’s practically impossible to know!

Then you end up in the hands of a voter registrar who gets to decide, without legal training, if your crime disqualifies you. You may believe, in good faith, that it doesn’t. But the registrar may believe otherwise and kick you off the voter rolls. That is not due process for access to the fundamental right of voting. And the end result is utterly arbitrary.

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Who are these registrars who decide whether a former felon can vote?

They’re appointed by state officials. And there are a huge number of them: three for each of Alabama’s 67 counties. Essentially, they’ve ended up with this extraordinary power—the ability to determine whether you qualify to vote—through mismanagement and a lack of responsibility by the legislature. The legislature’s failure to explain, to define its own qualifications for voting, has left registrars in the position of deciding for themselves which former felons get to vote.

And how are these decisions made? It’s a black box. There’s no authoritative statewide list of disqualifying crimes. The legislature has not defined who is ineligible. The attorney general has suggested that sale of marijuana is a crime of “moral turpitude” that revokes the right to vote. He also noted, though, that felony DUI does not render a convict ineligible to vote. Incidentally, felony DUI has been reported to be a disparately white crime in Alabama.

Former felons can petition the Board of Pardons and Paroles to explicitly restore their voting rights. But you’ve alleged that this process involves an unconstitutional poll tax. How can a requirement that an ex-convict pay certain fees qualify as a tax at all?

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Alabama hinges your ability to restore your voting rights on whether or not you can pay off all the fines and fees related to your conviction. That is a practical impossibility for many of our clients, and it creates a troubling imbalance. If you’ve been convicted of a crime and you’re wealthy, you can vote. If you’ve been convicted of a crime and you’re poor, you can’t. One of our clients has just one conviction ever, for theft of property. She now owes over $40,000 in restitution fines and fees. She works minimum-wage jobs and can barely support her family. She won’t be paying off those fines and fees in the foreseeable future.

The fines and fees requirement, then, is essentially a complete bar on her ability to vote based on economic status. That qualifies it as a poll “tax” under the Constitution. It also raises a problem under the Voting Rights Act, because the requirement has a disparate impact.

Your constitutional arguments are quite compelling—until you consider the fact that Section 2 of the 14th Amendment explicitly permits the abridgement of voting rights “for participation in rebellion, or other crime.” How can you possibly win in light of that provision?

First of all, Section 2 clearly doesn’t stand in the way of our claims under the Equal Protection Clause and the Voting Rights Act. Felony disenfranchisement laws that might seem to be sanctioned by Section 2 may still be illegal if they’re racially discriminatory or have a disparate impact on minorities. Similarly, Section 2 doesn’t stand in the way of our Due Process Clause. States can disenfranchise voters on the basis of certain convictions, but they certainly can’t deny access to a fundamental right in an arbitrary manner that risks blocking access for eligible voters, as well.

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But there’s a more complicated question here—one that ultimately needs to be determined by the Supreme Court—about what “rebellion, or other crime” really means. In other areas of the law, we would assume the first word qualifies the latter. Why not here? Maybe “other crime” means crimes that are like rebellion. Maybe the framers didn’t mean to include every single crime under the sun—if they did, why would they have pointed out rebellion in particular?

So what do you think “other crime” means?

“Rebellion” is a politically related crime. It has a strong relation to your responsibilities as a citizen. We’ve argued that “other crimes” should be defined as voting-related crimes, or crimes with a nexus to political behavior—like bribery, perjury, and “high crimes and misdemeanors,” which usually means crimes related to political office.

Do you have any evidence to bolster that theory?

There is some academic consensus that reading “other crime” to mean every crime under the sun just doesn’t line up, textually, with how we typically interpret the Constitution. We’ve also found historical evidence that “other crimes” should not be defined as broadly as many states define it now. And we think our interpretation of Section 2 helps to reconcile our fundamental rights jurisprudence, as well as our understanding of voting rights as pivotal to national citizenship, with the text of the Constitution.

But you are the first to push this theory in court.

Yes. We think it’s a groundbreaking, important, and logical argument. And now the courts will have an opportunity to decide if it’s correct.