California Felon Voting Case Asks: When is Being in Jail Not “Imprisoned”?


[Image courtesy of UCLA Digital Library]

This week, civil rights advocates filed suit in a California appellate court seeking to restore the voting rights of 85,000 felons.

Normally, these offenders would be ineligible to vote, given that California – like most states – has felon disenfranchisement laws on the books. But as the result of a recent U.S. Supreme Court decision aimed at overcrowding, the Golden State is reducing its state prison population by transferring tens of thousands of inmates from state prisons to county jails and tens of thousands more from state parole to county probation.

In December, California’s Secretary of State sent county election offices a memorandum detailing how this “realignment”, as it is called, would affect the voting rights of the individuals involved. Basically, the memo says that almost nothing has changed with regards to felon voting rights; except in very limited circumstances (when the accused is convicted of a felony but required to serve time in a county jail as a condition of probation in lieu of a felony sentence) these individuals remain ineligible to vote.

Civil rights groups and the League of Women Voters, however, are filing suit to overturn this memorandum, citing language in the California Constitution that disqualifies individuals “imprisoned or on parole for the conviction of a felony” from voting. Plaintiffs’ argument is that realignment’s removal of individuals from state control – prison or parole – means that they are no longer “imprisoned” and thus eligible to vote.

The debate has the potential to make life very difficult for county election officials, given the high degree of uncertainty involved in the transfer of offenders from one system to another, making verification of eligibility a challenge.

This case could also have national implications as more and more states seek to control prison populations and corrections costs – plus reduce recidivism – by identifying and using alternatives to the traditional state imprisonment model.

Not surprisingly, it also has the potential to be a huge political issue, given that plaintiffs are seeking a ruling before the state’s October 22 registration deadline for the November presidential election. In my experience, nothing (not even voter ID) gets people fired up like the the issue of felon voting, where the familiar concerns about disenfranchisement and fraud are present in the idea of prisoners casting ballots.

This one could get very interesting – stay tuned.

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