Metropolitan News-Enterprise


Friday, May 28, 2010


Page 3


Court: Disenfranchisement Not Limited to Felonies at Common Law


By SHERRI M. OKAMOTO, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday ruled that the Fourteenth Amendment permits states to disenfranchise convicted felons, regardless of whether their offenses were recognized as felonies at common law, and that conditioning the restoration of their right to vote upon the payment of their criminal fines and restitution was not unconstitutional.

In a decision by former U.S. Supreme Court Justice Sandra Day O’Connor, sitting by designation on the three-judge panel, the appellate court rejected a collection of suits challenging Arizona’s disenfranchisement scheme.

Arizona’s constitution provides that no person convicted of treason or felony is qualified to vote at any election unless restored to civil rights. State statutes give effect to this provision by suspending the voting rights of any person convicted of a felony and only restoring those rights after that person “[c]ompletes a term of probation or receives an absolute discharge from imprisonment” and “[p]ays any fine or restitution imposed.”

Civil Rights Suit

Debra L. Harvey and Catherine M. Beddard, who each have multiple felony convictions, filed a  42 U.S.C. § 1983 suit against the governor and secretary of state of Arizona, as well as the Pima County recorder, contending that disenfranchisement for statutory felonies not recognized at common law had no affirmative sanction in the Arizona constitution and violated their equal protection rights.

Armando Coronado, Joseph Rubio, Michael Garza, Michele Convie, and Raymond Lewis also filed a Sec. 1983 claim against the same defendants and the Maricopa County recorder alleging that they too were denied the right to vote because of convictions for offenses that, while classified as felonies under state law, did not constitute felonies at common law.

Coronado, Garza, and Rubio additionally argued that the disenfranchisement scheme discriminated against them on the basis of wealth because they had served the entirety of their prison terms and the only thing keeping them from having their voting rights reinstated was their failure to pay the criminal fines and restitution orders included in their sentences.

U.S. District Judge Frank R. Zapata of the District of Arizona granted the defendants’ motion to dismiss the Harvey action for failure to state a claim, while Judge Stephen M. McNamee did the same in the Coronado action. The cases were consolidated on appeal.

Sec. 2 of the federal Constitution’s Equal Protection Clause provides that the voting rights of any citizen cannot be abridged in any way, “except for participation in rebellion, or other crime,” and O’Connor explained that the plaintiffs’ interpretation of this language as applying only to persons convicted of felonies at common law was “contrary to the phrase’s plain meaning and its past and contemporary usage, and belied by the Fourteenth Amendment’s history.”

She noted that the definition of the word “crime” provided by Webster’s Dictionary definition and William Blackstone’s Commentaries nearly a century before the Fourteenth Amendment’s ratification both omitted any reference to the common law, which undermined the plaintiff’s claim that “crimes” meant “felonies at common law” in 1868.    

“Even if we were to assume arguendo that Section 2 is limited to serious crimes or felonies (as plaintiffs’ definitions suggest), a far better reference point for determining whether a crime is serious is to look at how the crime is designated by the modern-day legislature that proscribed it, rather than indulging the anachronisms of the common law,” O’Connor said, as this is the course the Supreme Court took in defining the contours of the right to a jury trial.

Difference in Language

The justice also emphasized the difference in language used by Congress in the Fourteenth Amendment and nine months later in the  Reconstruction Act—which set forth the conditions for the Confederate states to be readmitted to the union, including a requirement that the state guarantee the right to vote to citizens “except such as may be disenfranchised for participation in the rebellion or for felony at common law.”

She reasoned the use of the phrase “other crime” in the Fourteenth Amendment and “felony at common law” in the later act “clearly indicates that the two phrases have different meanings and Congress was capable of using each when it intended to do so.”

As for the plaintiffs’ claims based on the reinstatement of their voting rights, O’Connor said she had “little trouble concluding that Arizona has a rational basis for restoring voting rights only to those felons who have completed the terms of their sentences, which includes the payment of any fines or restitution orders.”

O’Connor posited that withholding voting rights from persons who were unable to pay their fines due to indigency might not pass the rational basis test. But none of the plaintiffs had claimed to be indigent, the jurist noted.

She added that the debt repayment requirement did not transform the plaintiffs’ criminal fines into poll taxes and that Arizona’s statutory scheme for restoring voting rights applied equally as between felons.

Chief Judge Alex Kozinski and Judge Sandra S. Ikuta joined O’Connor in her decision.

The cases are Harvey v. Brewer, 08-17253, and Coronado v. Brewer, 08-17567.


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