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Harvey v. Brewer

May 27, 2010

DEBRA L. HARVEY AND CATHERINE M. BEDDARD, PLAINTIFFS-APPELLANTS,
v.
JANICE K. BREWER, GOVERNOR; KEN BENNETT, SECRETARY OF STATE OF ARIZONA; AND F. ANN RODRIGUEZ, PIMA COUNTY RECORDER, IN THEIR OFFICIAL CAPACITIES, DEFENDANTS-APPELLEES.
ARMANDO CORONADO; JOSEPH RUBIO; MICHAEL GARZA; MICHELE CONVIE; AND RAYMOND LEWIS, PLAINTIFFS-APPELLANTS,
v.
JANICE K. BREWER, GOVERNOR; KEN BENNETT, SECRETARY OF STATE OF ARIZONA; F. ANN RODRIGUEZ, PIMA COUNTY RECORDER; AND HELEN PURCELL, MARICOPA COUNTY RECORDER, IN THEIR OFFICIAL CAPACITIES, DEFENDANTS-APPELLEES.



Appeals from the United States District Court for the District of Arizona. Frank R. Zapata, District Judge, Presiding (No. 08-17253) Stephen M. McNamee, District Judge, Presiding. (No. 08-17567). D.C. Nos. CV-08-17-TUC FRZ & CV-07-1089-PHX-SMM.

The opinion of the court was delivered by: O'connor, Associate Justice (Ret.)

FOR PUBLICATION

Argued and Submitted October 19, 2009 -- Tempe, Arizona.

Before: Sandra Day O'Connor, Associate Justice,*fn1 Alex Kozinski, Chief Judge, and Sandra S. Ikuta, Circuit Judge.

OPINION

Arizona's Constitution provides: "No person who is adjudicated an incapacitated person shall be qualified to vote at any election, nor shall any person convicted of treason or felony, be qualified to vote at any election unless restored to civil rights." Ariz. Const. art. VII, § 2. Arizona statutes give effect to this constitutional provision by suspending the voting rights of any person convicted of a felony, Ariz. Rev. Stat. § 13-904(A)(1), and automatically restoring those rights to any person convicted of only one felony, provided he: "1. Completes a term of probation or receives an absolute discharge from imprisonment," and "2. Pays any fine or restitution imposed." Ariz. Rev. Stat. § 13-912(A).

Plaintiffs brought suits challenging Arizona's disenfranchisement scheme. Their first argument was that disenfranchisement for felonies not recognized as such at common law violates the Equal Protection Clause of the Fourteenth Amendment. While plaintiffs acknowledged that Section 2 of the Fourteenth Amendment insulates felon-disenfranchisement schemes from equal protection challenges to some extent, see Richardson v. Ramirez, 418 U.S. 24 (1974), they argued that Section 2 only permits disenfranchisement for common-law felonies. In their view, disenfranchisement for statutory felonies not recognized at common law has no affirmative sanction in Section 2 and violates the Equal Protection Clause.

Three of the plaintiffs also argued that conditioning the restoration of the right to vote upon the payment of their criminal fines and restitution violates various provisions of the United States and Arizona Constitutions. Particularly, they alleged that this repayment condition violates the Equal Protection Clause of the Fourteenth Amendment, the Twenty-Fourth Amendment's bar against poll taxes, the Privileges or Immunities Clauses in both the federal and Arizona Constitutions, and the Arizona Constitution's provision mandating free and equal elections. Defendants' motions to dismiss were granted, and plaintiffs now raise these same arguments on appeal.

We consider each of these arguments and AFFIRM.

Facts

This is a consolidated appeal arising from two separate suits: one on behalf of Debra L. Harvey and Catherine M. Beddard ("Harvey plaintiffs"), and another on behalf of Armando Coronado, Joseph Rubio, Michael Garza, Michele Convie, and Raymond Lewis ("Coronado plaintiffs").

The Harvey plaintiffs each have multiple felony convictions for "drug or other offenses which were not felonies at common law." Amended Complaint at 15. While they claim they would otherwise be eligible to vote, Arizona has denied them that right because of their felony convictions. They filed a 42 U.S.C. § 1983 suit against the Governor and Secretary of State of Arizona, as well as the Pima County Recorder, challenging Arizona's disenfranchisement scheme "for denial of the vote to Plaintiffs and the consequent failure to accord them the equal protection of the laws in violation of the Fourteenth Amendment." Amended Complaint at 1. Defendants moved to dismiss the suit for failure to state a claim. They argued that Section 2 of the Fourteenth Amendment affirmatively permits the disenfranchisement of felons, that the reach of Section 2 is not limited to felonies at common law (as plaintiffs suggest), and that the plaintiffs' equal protection claims therefore fail. The District Court, adopting the Report and Recommendation of the Magistrate Judge, granted defendants' motion and dismissed the suit.

The Coronado plaintiffs also brought a § 1983 suit against the same defendants (plus the Maricopa County Recorder), alleging that they too were denied the right to vote because of convictions for offenses that, while classified as felonies under state law, did not constitute felonies at common law. Coronado and Garza were each convicted of one felony drug offense; Rubio was convicted of one felony count of attempted aggravated domestic violence; Convie and Lewis were convicted of multiple felony drug offenses. They raised the same equal protection argument as the Harvey plaintiffs with regard to Section 2.

The Coronado plaintiffs who had only one felony conviction (Coronado, Garza, and Rubio) also challenged Arizona's scheme for restoring voting rights to felons. The crux of their argument was that, because they had served the entirety of their prison terms for a lone felony conviction, the only thing keeping them from having their voting rights automatically reinstated was their failure to pay the criminal fines and restitution orders included in their sentences. See Ariz. Rev. Stat. § 13-912(A)(2). This, they argued, discriminates on the basis of wealth, conditions the right to vote on the payment of a fee, and violates various federal and state constitutional provi- sions. Their complaint did not allege that any of them were incapable of paying the remainder of the money owed under their sentences. The defendants moved to dismiss the suit for failure to state a claim, and the district court granted the motion.

Plaintiffs timely filed notices of appeal, and defendants' motion to consolidate these appeals was granted.

Discussion

We first address the argument, common to all plaintiffs, that the Equal Protection Clause only permits felon disenfranchisement when the felonies at issue were felonies at common law.

A. Equal Protection and the Common-Law Felony Theory of Section 2

[1] Section 1 of the Fourteenth Amendment provides: "No State shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. Section 2 further provides, in full:

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 ...


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