A legal case that affects the voting rights of more than 50,000 Minnesotans with active felony records awaits a decision from the state Supreme Court after a hearing Tuesday that left justices wrestling with their role.
The challenge involves a constitutional clause and its interaction with a 1963 law that requires felons to complete time in custody, on supervised release or on probation before they can vote again.
The people and groups behind the lawsuit argue the system disproportionately hurts communities of color because their punishments tend to trail them longer. They want voting eligibility to automatically be restored upon release from incarceration.
Their lawyer, Craig Coleman, told the court it has the duty to fix a problem lawmakers won’t.
“Our clients are here in reliance on this Court's role as the ultimate guarantor of their constitutional rights. And our state's system of felony disenfranchisement, it's been so pervasive, so long-standing, that there's just an assumption — a passive assumption — that it must be OK, must serve some purpose,” Coleman said.
He argued that depriving people of the ability to vote works against their rehabilitation and reintegration into society because it cleaves an important civic role.
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Angela Behrens, an attorney for Secretary of State Steve Simon, urged the court against upending the system and to leave intact rulings of two lower courts that have upheld it. She said Simon, a DFLer, believes the Legislature is the proper venue for change.
“Whether rights should be restored earlier is certainly up for debate,” Behrens said. “And if this were a hearing in front of a legislative committee, the parties would likely be aligned.”
The justices were heavily engaged in the hearing, lobbing question after question at the attorneys. Six of the seven justices spoke at some point, with only Justice G. Barry Anderson remaining silent.
Chief Justice Lorie Gildea noted there are many felons who never see the inside of a prison and would never lose their right to vote under the outcome being sought by plaintiffs.
“And isn't that a problem under the Constitution?” Gildea asked. “It says you’re a felon, you can’t vote.”
Justice Natalie Hudson also questioned whether there are nuances the court can’t address, such as people on electronic monitoring. And she suggested sentencing patterns add to the complications.
“Thirty, 40, 50 years ago, going back even further, we didn't have the level of people on probation that we do now. That's a more recent occurrence,” Hudson said. “But it just does seem to me that the distinctions you are asking us to draw are distinctions that are better left for the Legislature to draw. And why isn't that the case?”
Coleman responded that it’s crucial for the court to be a “refuge of the disenfranchised” and “the ultimate protector of constitutional rights.”
At other points, Hudson framed her questions around the idea that the court has a heightened role in determining whether the law is flawed because of the resulting impact. She cited a precedential 1991 decision in a case known as State v. Russell that led to extra scrutiny of a law when it adversely affected one race more than others.
“It seems to me when you were disenfranchising just huge swaths of the population, particularly when that population are primarily people of color, who the Equal Protection Clause was a design to the very people it was designed to protect,” Hudson said. “How is that the tight fit that Russell requires?”
Behrens, the state attorney, responded that the 1963 law change made it easier to regain voting rights than it had been prior.
“Because the statute doesn't disenfranchise anyone, it re-enfranchises everyone, and it's just a completion of sentence,” she said. “So it may not be as early as some would like, but the Constitution is what imposes that disenfranchisement. The Legislature didn't add anything to what the Constitution imposes.”
Governors and legislators in other states have moved to more quickly give felons the ability to vote once leaving custody. Attempts to revise the law in Minnesota’s Legislature have stalled for years. Advocates said they had little choice but pursue a court ruling here.
“The time has come for our state's highest court to address the use of the criminal justice system to perpetuate systemic racial inequalities,” said David McKinney, staff attorney at the ACLU-MN, which helped bring the challenge. “The practice of disproportionately disenfranchising people of color is an egregious example that the Minnesota Supreme Court has an historic opportunity today to fix and we hope they take the opportunity to do so.”
Plaintiff Elizer Darris spoke after the Supreme Court hearing.
He said he pays taxes, volunteers and makes other contributions to his community. Yet he won’t be eligible to vote until 2025 when his supervised release from a second-degree murder conviction ends.
“I have no say, no voice and no vote,” he said. “Because state law bars me from it.”
A decision from the court is expected sometime next year.