by John P. Augustine

Note from Mr. Augustine, Chairman and President of the Legislative Evaluation Assembly of Minnesota: LEA is on record in its 2015 report (available at www.lea-mn.org) as being opposed to felon-voting restoration language very similar to what is in a bill that has been passed by the 2016 Minnesota Senate. However, the views expressed in this piece are the author’s and not necessarily those of the LEA Board or its members.

It has become trendy for activists across the political spectrum to support automatic restoration of voting rights to convicted felons not in prison, regardless of whether the offenders have completed all the terms of the sentencing process.

The long-established practice of felons losing voting rights and other civil rights is being characterized by social-justice radicals as racist. Specifically, because felony status was sometimes linked to unequal laws in southern states during the Jim Crow era. More broadly, the progressive concept of “disparate impact” is being used to brand all restrictions on felon voting as racist. The argument used is that because blacks are disproportionately represented in the felon population, all felon-voting restrictions are racist, even if they are enforced upon all felons. That argument is ludicrous to anyone who understands that rights are exercised by individuals, not groups. Nevertheless, even the legislators who don’t accept the “disparate impact” argument are facing some political pressure to act on a “disparities” agenda, and changing felon-voting status could be regarded as a lower-cost concession than some other items on that agenda.

Then, too, there are religious leaders that view felon-voting restrictions as obstacles to offering people second chances and forgiveness, forgetting that the responsibility of the state is to mete out justice in ways that respect the rights of victims and offenders, not to dispense blanket forgiveness to offenders that may not have repented for their misdeeds.

Finally, there are libertarians so outraged about misconduct by government officials that they no longer trust the government’s ability to determine what should be felony offenses and the punishments for those offenses. An absolute distrust leads to anarchy. However, there are grounds for arguing that too many people are being ostracized and denied opportunities simply because they are not conforming to societal norms, even though their actions may not have harmed anyone but themselves. This argument for loosening restrictions on felon voting is the most substantial, but there are enough problems with the latest felon-voting restoration bill in Minnesota to be steadfastly opposed to it, without abandoning libertarian principles and philosophy.

Why Legislators Shouldn’t Change Restrictions on Felon Voting
While far from perfect in application, there is plenty of history to support restrictions on felons’ civil rights. Voting rights are one of the civil rights (ability to move freely, live without supervision, hold public office, etc.) that have been curtailed for felons since the founding of our state. Minnesota is one of 48 states that impose some restrictions on voting for convicted felons. The origins of imposing civic penalties on the most egregious criminals predates American government, going all the way back to ancient Rome and Greece. “Civil death” was a punishment meted out in medieval times. It was not uncommon to confiscate property of convicted outlaws, prohibit them from entering into contracts, and deny them protection of the state from threats to their well-being. This was done in villages of all types, including those remote enough not to have encountered people of different racial backgrounds. With the creation of our constitutional republic, these types of penalties lost legitimacy, but it was well understood that felons serving sentences were not entitled to all the civil rights enjoyed by law-abiding free citizens. It was also widely accepted that outlaws should not be entrusted with power through voting. Why make it possible for outlaws to strong-arm the system that elects judges, sheriffs, and other public officials?

It is also important to note that felon-voting prohibition differs in principle from the dubious practice of civil forfeiture, because one has to first be convicted of a felony charge by a jury of one’s peers before the denial of civil rights can occur as part of the sentencing process.

Libertarians have become more familiar through online documentation with concrete instances of police and court officials abusing power. They see a systemic problem related to too many actions, especially those where no one other than the offender is threatened, being defined as felonies, resulting in too many felons and too much of the population losing civil rights. The principled way to remedy this problem is to pass separate bills that would repeal the felony status of various actions.

You may be aware that Virginia recently loosened restrictions on felon voting. Yet the recent change in voting status for Virginia’s felons merely brings them up to the level of current Minnesota law. Virginia was one of a few states that permanently barred anyone convicted of a felony from voting. In practice, some felons who had completed their sentences were getting their voting rights restored after obtaining pardons from the chief executive. Virginia’s current governor took political advantage of the situation, issuing an executive order removing voting prohibition for all felons who had completed their sentences—a status equivalent to current Minnesota law.

Now, to a philosophical argument—balance and separation of powers. The case-by-case review of when a felon has completed restitution and/or met other conditions attached to probation is not done by a legislature or by the law-enforcement officer that made the arrest. It is done through the court system. Eventually, a court can issue a discharge order informing a felon that he/she is no longer under control of the court. In Minnesota, that is when the right to vote, a right of free citizenship, is restored. Case-by-case review to determine if legal requirements have been fulfilled is properly a function of the judicial branch. Passing a new law that provides blanket restoration of voting for all felons out of prison, regardless of whether they are meeting any terms of probation, removes the case-by-case judgment and discretion that is supposed to come through the courts.

Last but not least, the current proposal being considered by the legislature could be deemed unconstitutional on two counts. Article 7, Section 1 of the Minnesota Constitution specifically disqualifies persons convicted of felonies from voting “unless restored to civil rights”. Using a bill to decide piecemeal to override language in the MN Constitution that ties voting rights to civil-rights restoration– instead of going through the process necessary to amend the constitution–may not withstand a legal challenge. Also, advocates of felon-voting restoration have resorted to amending this significant proposed policy change onto an omnibus bill that makes minor changes to emergency preparedness, electronic voting, and absentee voting policies. If you can accept that common-sense understanding would treat rights-restoration language as a subject distinct from changes to voting methods, then amending this proposal onto a larger bill violates the single-subject rule spelled out in Article 4, Section 17 of the Minnesota Constitution: “No law shall embrace more than one subject, which shall be expressed in its title.”

The current proposal is an end-justifying-the-means approach to addressing any problems associated with too many acts being classified as felonies. It has passed the Senate as part of SF2381, an omnibus elections bill. Though it might not be included when something passes the House, Gov. Dayton supports it, which could lead to a test of wills in conference-committee negotiations. To stop it, opponents may have to walk away without an agreement.