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Legal Services for Prisoners With Children v. Bowen

January 22, 2009


The opinion of the court was delivered by: Richman, J.


Little-known section 2 of the Fourteenth Amendment of the United States Constitution allows states, without offending equal protection, to disenfranchise citizens "for participation in rebellion or other crime." Petitioners here seek a writ of mandate, claiming that the disenfranchisement allowed by the section is limited to felonies at common law. We conclude that there is no historical evidence supporting the claim. And the United States Supreme Court in interpreting the Constitution has never read the word "crime" as Petitioners contend. We thus deny the writ.


There are seven Petitioners in all, the first two of which are entities: Legal Services for Prisoners with Children and The Center for Children of Incarcerated Parents.*fn1 The former is a nonprofit organization that promotes "the interests of parents who are incarcerated, on parole, or at risk of incarceration, and their children"; the latter is a private nonprofit corporation that "provides services, conducts research, and produces publications about and for children of criminal offenders and their families."

The other five Petitioners are individuals, three of whom are on parole for what they assert are crimes that were not felonies at common law, though without specifying the exact crimes of which they were convicted: Ann Marie Taylor and Veronica Briscoe assert that they were convicted of, and are on parole for, violations of the Health and Safety Code; Audra Kettlewell asserts she was on parole at the time the petition was filed, but that her parole was scheduled to expire in February 2008. The other two Petitioners, Arlene Robinson and Pat Caetano, assert that they are currently on parole for convictions of felonies at common law.

There are five Respondents, all of whom oversee voting in their official capacity. The first is Debra Bowen, the California Secretary of State. The others are the registrars of voters of four counties: Steven Weir (Contra Costa County), Conny McCormack (Los Angeles County), Stephen Jones (Merced County), and Jill Lavine (Sacramento County).

Petitioners originally filed their petition for writ of mandate*fn2 in our Supreme Court, which transferred the matter to this court. We requested informal responses from Respondents and a reply from Petitioners; we also received briefing from the American Civil Liberties Union of Northern California and Impact Fund as amici curiae. We issued an order to show cause and heard oral argument. We now deny the Petition.


A. The General Principles

"No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right." (Wesberry v. Sanders (1964) 376 U.S. 1, 17-18.) To ensure that our citizens enjoy this precious right, the United States Constitution sets forth fundamental principles governing the franchise: equal suffrage based on race (15th Amendment); equal suffrage based on sex (19th Amendment); poll tax prohibition (24th Amendment); and enfranchising citizens over 18 years of age (26th Amendment).

States nonetheless "have broad powers to determine the conditions under which the right of suffrage may be exercised, absent of course the discrimination which the Constitution condemns." (Lassiter v. Northampton Election Bd. (1959) 360 U.S. 45, 50, citations omitted.) Relevant to the issue here, California prohibits felons in prison or on parole from voting. Although the laws have changed over the years,*fn3 the current language in the California Constitution requires the Legislature to "provide for the disqualification of electors while mentally incompetent or imprisoned or on parole for the conviction of a felony." (Cal. Const., art. II, § 4.) Elections Code section 2101 implements that requirement, and provides that "[a] person entitled to register to vote shall be a United States citizen, a resident of California, not in prison or on parole for the conviction of a felony, and at least 18 years of age at the time of the next election."

Challenges to state laws restricting the right to vote have typically been brought under the Equal Protection Clause found in section 1 of the Fourteenth Amendment. A law disenfranchising voters violates equal protection if there is "purposeful discrimination" and "a discriminatory effect" on the defendant specifically as a result of that "purposeful discrimination." (McCleskey v. Kemp (1987) 481 U.S. 279, 292.) "In determining whether or not a state law violates the Equal Protection Clause, [courts] must consider the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification." (Williams v. Rhodes (1968) 393 U.S. 23, 30.) If the facts and circumstances show that racial discrimination was "a 'substantial' or 'motivating' factor behind the enactment of the law, the burden shifts to the law's defenders to demonstrate that the law would have been enacted without this factor." (Hunter v. Underwood (1985) 471 U.S. 222, 228.) Or, as the United State Supreme Court explained in the context of a residency requirement, "It is not sufficient for the State to show that durational residence requirements further a very substantial state interest. In pursuing that important interest, the State cannot choose means that unnecessarily burden or restrict constitutionally protected activity. Statutes affecting constitutional rights must be drawn with 'precision' (NAACP v. Button (1963) 371 U.S. 415; United States v. Robel (1967) 389 U.S. 258, 265), and must be 'tailored' to serve their legitimate objectives. (Shapiro v. Thompson [(1969) 394 U.S. 618,] 631.) And if there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference. If it acts at all, it must choose 'less drastic means.' " (Dunn v. Blumstein (1972) 405 U.S. 330, 343.)

B. The Background: Section 2 of the Fourteenth Amendment, Richardson v. Ramirez, Hunter v. Underwood, and the Reconstruction Act

Section 2 of the Fourteenth Amendment exempts from equal protection disenfranchisement for "participation in . . . crime." As noted, Petitioners raise a single claim: that the exemption in the section is limited to felonies at common law. Analysis of Petitioners' argument requires that we take an unusual journey-to determine the intent of the post-Civil War Congress in drafting section 2 of the Fourteenth Amendment.

Section 2 provides in its entirety as follows: "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State."

As our colleagues in Division One have distilled it, section 2 "imposes a penalty on states that deny the vote to male citizens 21 years or older, except for those who participated in rebellion or [other] crime, by reducing that state's congressional ...

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