Tuesday, October 25, 2016

"Which Sinners Get to Vote in Alabama?"

The title of this post comes from this recent piece by The Marshall Project's Andrew Cohen examining the controversial Alabama law that gives local election officials significant discretion to deny former felons the right to vote. Cohen explains:

Nearly six million Americans of voting age will be disenfranchised this election year because they’ve committed crimes. Some are still in prison, but nearly four million others have served their sentences and are trying to re-enter society, most hoping to become engaged members of their communities. A few states make it relatively easy for ex-offenders to register and vote following their release and the completion of their probation and parole. A few other states make it impossible. (Here’s a helpful chart to help you track your own state’s rules.)


Between the extremes lies Alabama, a state with a long history of racially-motivated criminal justice laws and policies. Some ex-offenders—murderers and rapists, for example—are permanently precluded from voting unless they are pardoned. And some released inmates may eventually be permitted to cast a ballot. It depends on whether a local election registrar determines that their crimes constituted “moral turpitude” under the state’s constitution. That term is defined so loosely under state law that different bureaucrats in different counties have come to different conclusions about who gets to vote and who doesn’t.


State officials have been aware for many years that there is a problem with the vague definition of “moral turpitude.” In 2005, the state attorney general issued an opinion which did little to correct the ambiguity. A crime of “moral turpitude,” the state’s chief law enforcement official concluded, is “an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general.” The determination in any given case on whether to allow an ex-offender to register to vote, the attorney general wrote, rests with the “moral standards” of the decision maker—i.e. each county’s registrar.


What crimes the attorney did identify in 2005 as immoral, moreover, did not necessarily match up with the definitions of those crimes under Alabama’s statutes. For example, it is unclear whether crimes involving the possession of drugs constitute “moral turpitude.” In 2007, the state’s court administration office tried also to better define crimes of “moral turpitude” but ended with a list of 70 felonies that did not match the attorney general’s list issued two years earlier. The state legislature, meanwhile, has remained silent on the issue since then despite repeated calls for more clarity.


The standard is so chaotic that it was challenged last month in federal court in a voting rights case now pending in the Middle District of Alabama. The complaint—Thompson v. Alabama—seeks class action status for Alabama residents disenfranchised by the law, alleging that it is unconstitutional under what’s left of the Voting Rights Act. The plaintiffs want a ruling that enjoins Alabama officials from barring any ex-offenders from voting on the basis of their past felony convictions—or their inability to pay “any legal financial obligations” as a result of their incarceration. The complaint, in other words, seeks a repudiation of the state’s felony disenfranchisement law.

The complaint relays disturbing stories of people with past felony convictions that have been denied the right to vote, several of which Cohen effectively summarizes in this piece. One plaintiff, for example, had voted in 2008 and 2012 but the county in which she had registered recently withdrew her right to vote because of her 1997 theft conviction--a crime for which she received no prison time. 

Felon disenfrachisement laws rely on dubious reasoning to begin with, but granting local election officials such broad authority to determine the degree of "moral turpitude" involved in a particular crime invites ridiculous determinations like those alleged in the complaint. Alabama should get rid of its disenfranchisement law toot sweet, but failing that the legislature should at least come up with a list of crimes to which the state's constitutional standard ought to apply.


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