Metropolitan News-Enterprise


Friday, December 22, 2006


Page 4


First District Court of Appeal Upholds Right of Local Jail Inmates to Vote




Local jail inmates serving sentences for offenses that could have been punished by a term in state prison, but weren’t, are entitled to vote under the California Constitution, the First District Court of Appeal ruled yesterday.

Div. One said Attorney General Bill Lockyer and Secretary of State Bruce McPherson were wrong in concluding that the ban on voting by felons extends to those serving local jail time as a condition of felony probation, or awaiting sentence on “wobbler” convictions.

Only those felons sentenced to state prison terms that have not been completed—including those transferred to local jails pursuant to an agreement between state and local officials—or on parole are barred from voting, Justice William Stein wrote for Div. One. The panel issued a writ of mandate sought by the League of Women Voters, the ACLU, and the Social Justice Law Project.

The order requires the secretary of state to inform trial court and election officials of the qualifications to vote according to the court’s ruling, but does not, as requested by the petitioners, order election officials to accept registration applications from sentenced persons who are eligible to vote. In crafting the order, Stein explained, the court was acceding to the concerns of local election officials, who rely on superior court clerks to provide them with lists of persons with disqualifying convictions.

At issue, Stein explained, is the meaning of Art. II, Sec. 4 of the Constitution which directs the Legislature to “prohibit improper practices that affect elections and shall provide for the disqualification of electors while mentally incompetent or imprisoned or on parole for the conviction of a felony.”

That language, part of a constitutional amendment approved in 1974, had been construed by secretaries of state March Fong Eu and Kevin Shelley as barring voting only by persons confined to state prison for a felony, or on parole. But in December of last year, McPherson informed local election officials, based on a Lockyer opinion, that persons incarcerated in local jails as a result of felony convictions, including those whose jail terms were conditions of probation, cannot vote.

Stein explained:

“By focusing solely on the word ‘imprisoned,’ and on a dictionary definition of that term [as meaning ‘to put in a prison: confine in a jail’] the Attorney General’s opinion ignored a critical distinction between the situation of persons confined to jail as a condition of felony probation and that of persons imprisoned in state prison.  The former are under the jurisdiction of the court.  The latter are not.”

Thus, Stein explained, only those who are sentenced to state prison as felons are serving their sentences as a consequence of their convictions, those who are serving time in local jails are doing so as a result of the court’s exercise of independent authority. In the latter case, “a defendant is imprisoned as a result of the felony conviction only if probation is revoked or terminated, the court orders imposition and/or execution of judgment and the defendant is delivered to the Department of Corrections and Rehabilitation,” the justice said.

The attorney general, Stein went on to say, also ignored the intent of the 1974 amendment, which the justice said was to expand, not narrow, the list of eligible voters.

Prior to the amendment, a “person convicted of an infamous crime” or a “person convicted of embezzlement or misappropriation of public money” was permanently barred from voting, the justice explained.

As a result of the amendment, Stein said, ex-prisoners who have served their sentences are entitled to have their voting rights restored once free of parole. But persons who were found guilty of crimes but not sentenced to state prison, including felony probationers, had voting rights before the 1974 amendment, and nothing in the legislative history suggests that the amendment was intended to take those rights away, the jurist declared.

Stein went on to say that in the case of a defendant convicted of a wobbler—a crime that can be punished either as a felony or a misdemeanor—the right to vote is lost only if, and when, the judge imposes a prison sentence.

The case is League of Women Voters of California v. McPherson, 06 S.O.S. 6259.


Copyright 2006, Metropolitan News Company