SACRAMENTO, Calif. – The nonpartisan League of Women Voters and two prisoners' rights groups sued California elections officials on Wednesday, claiming that tens of thousands of criminals being shifted to county jails and community supervision should be eligible to vote.
The state's new realignment law that took effect in October is sending lower-level offenders to county jails instead of to state prisons, where they are barred from voting. It also ends parole for many ex-convicts, substituting a similar program called "post-release community supervision" instead.
The plaintiffs said more than 85,000 offenders who are no longer in state prison or on parole should be allowed to vote in the June primary election.
They are challenging a memo from Secretary of State Debra Bowen's office that said people who are sentenced to county jail or supervision under realignment are ineligible to vote under California law.
California is one of 48 states and the District of Columbia that prohibit felons while they are incarcerated. The exceptions are Maine and Vermont.
According to The Sentencing Project, a Washington, D.C.-based advocacy organization, 35 states ban parolees from voting and 30 of the same states bar voting by people on probation as well. California permits voting by those on probation who are overseen by county probation officers but prohibits it for those on parole who are supervised by state parole agents. Four states prohibit voting by ex-felons even after they are off parole, while eight others limit when ex-felons can vote.
Felons' voting rights are being debated in statehouses across the nation, according to the National Conference of State Legislatures.
South Dakota lawmakers have sent the governor a bill to block voting by felons on probation or parole. However, legislators in New Jersey and New York are considering bills that would do the opposite by letting parolees and probationers vote.
Legislation pending in Tennessee would stop requiring that convicts pay their restitution, court costs and child support before they can vote again. But Washington state legislators are considering a bill that would add the same repayment obligations that Tennessee may end.
Some felons could vote absentee from their prison cells under bills introduced in Hawaii and Tennessee. A South Carolina bill would block registered sex offenders from voting at all. Lawmakers in New Jersey, New York and Pennsylvania could require state officials to help offenders register to vote as they complete their incarceration, probation or parole.
The lawsuit challenging California's practice was filed in the 1st District Court of Appeal in San Francisco against Bowen and John Arntz, director of elections in San Francisco. It asks the court to order elections officials to let citizens vote even if they are incarcerated or supervised at the county level.
The memo written by Bowen's chief legal counsel to county elections officials in December said it shouldn't matter that the lower-level offenders "serve their felony sentences in county jail instead of state prison or ... their release from prison is labeled something other than 'parole.'"
That conflicts with the plain language of the state Constitution and with a 2006 legal decision by the same appeals court, argued the plaintiffs. The Constitution prohibits voting only by those "imprisoned or on parole for the conviction of a felony," neither of which is the case for lower-level criminals under the new law.
Bowen's office said that "imprisoned" is a broader term that can mean incarceration in a local jail as well as a state prison.
"These individuals are 'imprisoned for the conviction of a felony,' but they are not 'in prison for the conviction of a felony,' wrote chief counsel Lowell Finley in the 18-page memo. The memo also argued that parole and post-release community supervision "are functionally equivalent" under the law.
There is no evidence that lawmakers intended to let more criminals vote when they approved the realignment law to save the state money and ease crowding in state prisons, Finley wrote.
Bowen spokeswoman Shannan Velayas declined comment Wednesday, citing the pending lawsuit. However, Bowen reviewed the legal arguments before issuing the memo and "is prepared to litigate them if necessary," Deputy Attorney General Seth Goldstein wrote in a letter this week to the plaintiffs' main attorney. As the state's lawyer, the attorney general will defend Bowen's position.
The ruling disproportionately affects nonwhites because a higher percentage of racial minorities are incarcerated, said Jory Steele of the American Civil Liberties Union of Northern California, one of the attorneys representing the plaintiffs.
The Sentencing Project, which acts as a nationwide clearinghouse on the issue, estimates that 5.3 million citizens nationwide have temporarily or permanently lost their right to vote because of a felony conviction. That number includes 1.4 million black males, or 13 percent of all black men, a rate seven times than the national average.
Supporters argued that letting the offenders vote should be part of their rehabilitation.
"It's also about taking responsibility and participating fully in the community," Santa Cruz County's Chief Probation Officer Scott McDonald said in a statement supporting the lawsuit.
Aside from the league, the other plaintiffs are the nonprofit Legal Services for Prisoners with Children and an affiliated voter-education program called All of Us or None, as well as Alisha Coleman. She is described as a 30-year-old woman who is serving time in San Francisco jail for a narcotics conviction but still wants to vote.