LAWSUIT UPDATE: OUR Oral Arguments COMMENTARY

Our statewide organizer Dolfinette Martin hypes up the crowd at the oral arguments on Feb. 27.

On Tuesday, February 27, our members filled the courtroom at LSU Law School to hear the oral arguments in VOTE v. Louisiana, a case that, if successful, would restore voting rights to roughly 40,000 people on probation and 30,000 people on parole. These people, who are under community supervision, do not fall within the group of people who the state may constitutionally suspend voting rights. Iconic civil rights lawyer and professor Bill Quigley, lead attorney for Voice of the Experienced, argued his 15 minutes before a three-judge panel.

Shortly after Prof. Quigley began his argument to focus on the three steps of constitutional analysis, Judge Holdridge began his line of intense inquiry. Whereas the constitution allows the state to suspend the rights of people “under order of imprisonment,” Holdridge remained focused on the initial court orders that put 30,000 impacted people into prison. The Orders of Commitment are indeed orders, and do send someone to prison, which is also a prerequisite for parole.

Judge Holdridge’s focus on someone’s prior incarceration overlooks the fact that additional orders impact the life of a convicted person. A parole board will order the release of someone from prison. Their decisions carry the force of law under the Executive Branch.

or·der

ˈôrdər/
noun
1.     the arrangement or disposition of people or things in relation to each other according to a particular sequence, pattern, or method.
2.     an authoritative command, direction, or instruction.
"he was not going to take orders from a mere administrator"

The constitution does not call specifically for a “judicial” order, there are other orders issued in civil and criminal society.

Someone under parole supervision is under Order of Release by the parole board, not the judicial Order of Imprisonment.

Judge Holdridge, who spoke about as much as attorney Quigley, inquired whether there should be separate classes for people on probation and for those on parole. His inquiries with the State’s attorney exposed the fact that many people are on probation without any threat of prison time, or with a deferment of prison time. This, in turn, elicited a statement by the State that they have no idea how many people are allowed to vote or are currently voting with these types of probation sentences.

Multiple times, the Secretary of State has agreed that people on probation with no suspended sentence should be voting.

We have yet to see them clarify this on their website, on their registration materials, with their parish boards of electors, nor with any public service announcements. We will continue pushing them to do so.

The State’s attorney, Lani Durio, did not seem very familiar with criminal law, referring to probation and parole as “conditional releases.” Probation is not a release and does not follow incarceration. There is no re-entry involved with probation. The drafters of the 1974 law chose to use a phrase that does not appear anywhere else in the law: “under order of imprisonment”. Thus, for the State to say its “generally understood meaning” is to include probation and parole is not very accurate. The phrase is not generally understood at all, evidenced by the fact that a polling of the current parish boards of electors were not clear on the law; the constitutional scholar of the time asserts that only people in prison (and escapees) are “under order of imprisonment” (a scholarly article that Judge Holdridge strangely referred to as hearsay); and voting guides distributed in 1974 referred to voting rights being gained for people upon release from prison.

“Don’t you think it would be a good policy of the State to encourage people to do good and to vote?” – Judge Holdridge.

This question, asked of the Secretary of State’s lawyer, perfectly embodied the third required inquiry of whether a challenged statute is constitutional. Professor Quigley had noted that the State has not met their burden and (as well written in the brief) the State has not indicated the compelling state interest of denying people who pay taxes the right to vote. Unless the State defines their legitimate interest, we can’t assess whether or not it is narrowly tailored.

The American Probation and Parole Association wrote its response to Holdridge’s question in its brief. Yes, the State should be encouraging voting and civic engagement, the Association says, and it does have an interest in supporting positive behaviors. This is how we increase rehabilitation and public safety. Denying voting rights impacts people’s ability to become upstanding citizens.

Is voting a right or a privilege?

Few statements by Judge Holdridge caused more furrowed eyebrows than: “I don’t think all 70,000 deserve the right to vote.” Professor Quigley pointed out in clear terms that voting is undeniably a right, and is clearly and unequivocally guaranteed to all resident citizens of Louisiana over 18. We live in a nation where half the people do not vote, a mere 25% of our population can decide the President, and many people condemn uninformed voters to the point of suggesting they shouldn’t have the right to vote.

The concept that voting rights could be suspended for some, while not others, is exactly the tortured history of voter suppression that the 1974 constitution was supposed to finally eliminate.

Another common red herring that gets thrown in voting rights debates is “what about the right to bear arms” and other rights? In this case, Professor Quigley had the perfect response, because Section 20 of the constitution refers to all rights being restored upon completion of prison and supervision. Section 10 refers specifically to voting rights. Every lawyer knows that the specific provision trumps the general provision. Thus, in our case, the framers of the constitution accounted for every general right in Section 20, while drafting one specific section that covers one specific right: voting. We are not challenging the general rights of Section 20.

Constitutional interpretation requires judges to reconcile any perceived conflicts within the full document. Each section must be given an independent purpose and meaning, if possible. If the voting rights provision has no unique purpose, and if “under order of imprisonment” is no different than the broad and understandable (prison, probation, parole) language of Section 20, the court would not be giving Section 10 any independent meaning at all.

What’s Next?

The court has until April 4th to rule. That day is the 50th anniversary of Dr. King being assassinated. Few decrees could be more fitting that day than a victory for universal voting rights. Some possibilities include:

· The court could flat out rule against us, at which point we would appeal to the Louisiana Supreme Court (who must have the final word, regardless of the path the case takes).

· The court could overrule the district court, and make this determination of law without any further evidence gathering required. At that point, the State would appeal to the Louisiana Supreme Court.

· The court could send the case back to the district court with instructions (“remand”), such as holding an evidentiary hearing to gather more information on what is actually happening in the process (people’s specific orders, the types of sentences, what is happening with registrations, the public understanding of 1974, what the state’s compelling interest is, etc.). The court could also instruct the district court on what processes and standards to follow when deciding the constitutionality of a statute.

Our incredible legal team, which started with a call-out to our local civil rights family, has been bolstered by the expertise and dedication of Advancement Project. We went into this appeal with well-crafted arguments of law, policy, and morality. Whatever the court rules, we will be ready to continue the struggle to secure this fundamental right of citizenship.

Will you join us?