September 30, 2016
Private: Thompson v. Alabama: Addressing the Racist Roots of Felon Disenfranchisement
Anna Bodi, Danielle Lang
by Danielle Lang, Deputy Director of Voting Rights and Anna Bodi, Partner Legal Fellow at The Campaign Legal Center
Larry Joe Newby is a U.S. citizen living in Huntsville, Alabama. Mr. Newby is married, attends church, is raising his two adopted grandsons and works for the County as an assistant supervisor. However, due to a few minor non-violent offenses from well over a decade ago, Mr. Newby has not been able to vote and will not be able to cast a ballot this November. Mr. Newby is just one of the 5.85 million citizens whose voices have been silenced by felony disenfranchisement laws across the United States. 75 percent of these disenfranchised voters are no longer in prison, but are still unable to vote.
Unwilling to accept the denial of his fundamental right to vote, Mr. Newby is a named plaintiff in a new lawsuit filed by the Campaign Legal Center, alongside a team of pro bono and civil rights litigators, that could finally turn the page on a dark history of discriminatory felon disenfranchisement in Alabama and nationwide.
Alabama’s Strict and Discriminatory Felon Disenfranchisement Regime
Alabama has one of the most severe and discriminatory felon disenfranchisement laws in the nation: it is one of only 12 states that permanently disenfranchise some or all citizens convicted of felony offenses and, as a result, disenfranchises 7% of its total voting age population and 15% of its black voting age population.
The sordid history behind Alabama’s law highlights the inextricable ties between modern felon disenfranchisement and Jim Crow. In 1901, at the same time that Alabama was engaged in a mass convict leasing system of black prisoners, the state adopted a Constitution that disenfranchised those convicted of crimes “involving moral turpitude” for the explicit purpose of bypassing the 15th Amendment and disenfranchising blacks. In 1985, in Hunter v. Underwood, the Supreme Court struck down this provision as racially discriminatory.
But despite the Supreme Court’s ruling that the vague “moral turpitude” standard was selected to enable intentionally racially discriminatory disenfranchisement, Alabama reintroduced this term into its laws in 1996 without any debate. Alabama now disenfranchises anyone “convicted of a felony involving moral turpitude” unless their rights have been restored. As a practical matter, the law disenfranchises over a quarter million of the state’s citizens and disenfranchises black voting-age citizens at three times the rate of white voting-age citizens in Alabama.
Moreover, to this day Alabama has never defined “moral turpitude” or created a complete list of those felonies that “involve moral turpitude.” Many Alabama citizens with felony convictions have no way to know ahead of time if their crime is disqualifying but are required to sign under penalty of perjury that they have not been convicted of a “disqualifying crime” in order to register to vote. If they do submit an application, which few do, voter registrars decide on an ad hoc basis whether a prospective voter’s felony conviction is disqualifying.
Finally, in order to restore the right to vote in Alabama, a person with a disqualifying conviction must pay all fines, fees and restitution. These already steep fines and fees often compound, creating insurmountable burdens to re-enfranchisement for many poor and working class citizens with past felony convictions. The result is a system that disenfranchises people on the basis of economic status—those with ample resources can easily restore their rights, while those struggling to make ends meet are locked out of the political process indefinitely.
A New Legal Challenge: An Opportunity to Change the Legal Landscape
Alabama presents a unique opportunity to bring a new federal felon disenfranchisement challenge on the basis of its particular racial history, its peculiar and vague method of disenfranchisement and its specific onerous process for restoration of rights. Thompson v. Alabama, brought on behalf of disenfranchised individuals with felony convictions, seizes upon that opportunity and seeks to both enfranchise Alabamians and change the course of flawed prior felon disenfranchisement jurisprudence.
The case asserts that Alabama’s felon disenfranchisement law is racially discriminatory in violation of the 14th and 15th Amendments and unconstitutionally vague, arbitrary, procedurally inadequate and burdensome. It traces the history of the law, its connections to Jim Crow and convict leasing and its continued starkly disproportionate impact on blacks to demonstrate the law’s incompatibility with the Fourteenth Amendment’s prohibition on racial discrimination. The lawsuit also alleges that the law’s vague standard leads to the arbitrary deprivation of the right to vote and an undue burden on those who may qualify to vote but are unable to determine their eligibility.
The racially discriminatory history of Alabama’s law, its enormous impact on the black community and its arbitrary enforcement also highlight the tension between the promise of the Equal Protection Clause and the Supreme Court’s 1974 decision in Richardson v. Ramirez , which held that felony convictions (at least in some circumstances) are a valid basis upon which to restrict the right to vote. Richardson v. Ramirez, however, did not address the scope of permissible felon disenfranchisement. Since Ramirez relied upon Section 2 of the Fourteenth Amendment, which contemplates disenfranchisement for “rebellion or other crime,” the lawsuit alleges that felon disenfranchisement must be limited to crimes similar to rebellion such as bribery, perjury and other crimes tied to the political process.
Finally, the lawsuit alleges that the requirement that citizens pay all fines and fees to restore their right to vote is nothing more than a modern poll tax that violates the 14th and 24th Amendments, as well as Section 2 of the Voting Rights Act. While Ramirez held that felony disenfranchisement is sometimes permissible, it did not hold that persons with felony convictions fall outside of the Constitution’s protection of access to the franchise. In Hunter v. Underwood, the Court made clear that the Equal Protection Clause still otherwise applies to rules governing how states limit access to voting for those with felony convictions. Therefore, wealth restrictions on restoration of rights are as abhorrent to the Constitution as any other poll tax.
Since Thompson raises a number of core constitutional claims, a successful challenge in Alabama could mean meaningful change to felon disenfranchisement jurisprudence, opening the door to future challenges in other states.
A Step Forward
Citizens with past felony convictions work and pay taxes and should have a say in deciding their community’s and the nation’s laws that directly impact their lives. Denying citizens with past felony convictions, such as Mr. Newby, the right to engage in civic activities such as voting hinders their reintegration into society and creates an additional psychological impediment to preventing recidivism. It sends the message that they will permanently be treated as second-class citizens.
This case could be a stepping-stone to extricating the country from the racially charged history of felon disenfranchisement and restoring the rights and status of citizens nationwide.