VOTE v. LOUisiana: a grassroots lawsuit that lost, yet won voting rights for 40,000

Incarcerated artist Steven Parkhurst's gift to VOTE

This week, the Louisiana Supreme Court made a statement on voting rights, and the silence of the majority rings louder than the one justice who chose to use words. The Court, in an unwritten opinion, dismissed VOTE v. Louisiana, which would have allowed 70,000 tax-paying citizens the right to vote on November 7th. This case began as an idea of several jailhouse lawyers, and years later Chief Justice Bernette Johnson writes plainly in her Dissent: “I find La. R.S. 18:2(8) and 18:102(A)(a) unconstitutionally restrict the right to vote of parolees and probationers, in violation of Article 1, §10(A) of the Louisiana Constitution.”

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Four members of VOTE’s staff, all working hard to encourage civic engagement of people throughout the community, will continue to be denied the right to vote along with thousands of members and constituents living on probation or parole across the state. The named plaintiffs include college graduates, veterans and faith leaders. The good news, however, is that Act 636, effective March 1st 2019, will solve half the problem, and even the NFL is hailing VOTE’s work to create voting rights and equal opportunities.

One reason the case may have been dismissed is because the legislature changed the laws and, as the Secretary of State wrote in opposition to the writ, Act 636 will end the suspension of voting rights for roughly 40,000 people on probation- unless they commit a probation violation and go to prison. This leaves roughly 30,000 people on parole, barred from voting, as they have been out for less than 5 years.

The Court’s decision is a reminder of the many barriers built and defended to, ironically, keep people from 'doing the right thing.' In a state that struggles to get more than 20% of people to vote, denying participation to so many people contributes to the demise of democracy and legitimacy of elections. For people recovering from a criminal conviction, attempts to assimilate into society can be futile. One might think such hurdles were enacted to prevent crimes, yet most barriers prevent housing, impede education, block employment, and bar voting.

“We weren’t even making a moral argument, which we could have,” says Bruce Reilly, VOTE deputy director, member of the legal team, and himself disenfranchised. “Our case is built on the reality that the voters were played by a bait-and-switch back in 1974. I’m disappointed, but not surprised, that the Court didn’t want to go there. Galileo faced the same problem back in the 16th century, trying to get the court to look into the telescope, to prove the earth rotated around the sun. Instead, they placed him under house arrest.”

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Norris Henderson, w/ plaintiffs Checo Yancy, Bruce Reilly, and Biggy Johnston. All former jailhouse lawyers. (Photo: NFL Network)

This case turned on the interpretation of a phrase, “under order of imprisonment,” where lower courts agreed that the definition (to include people in prison, on parole, and on probation) was correct, despite being crafted several years after the constitution was ratified. Yet the lower courts refused to follow established legal standards to reach their rulings. It is hard to trust the process when the process is ignored. The legal standards call for courts to consider what the voters believed they were voting for, particularly when a word of phrase does not a hold a common everyday plain meaning. Rather than conduct an inquiry, six members of the Louisiana Supreme Court remain silent.

Chief Justice Johnson has been an attorney for 50 years, and a judge for 34 years. While she saw the merits of the case clearly to be on the side of VOTE, it is disappointing that the other justices did not even see the controversy as worthy of consideration. Such a move begs critics to see courts as an extension of political theatre, rather than a place of reasonable minds and rigorous inquiry. The Chief Justice's own research unearthed what may be the origin of the phrase “under order of imprisonment,” which is not a part of the Louisiana criminal code. Back in 1876, when an incarcerated person wanted courts to correct his deficient "order of imprisonment," he filed for “habeas relief” to be released from incarceration. Today, however, an order of imprisonment is equated to the “threat of” imprisonment, which everyone in America actually faces. The path to tyranny is a slippery slope.

Furthermore, even if the denial of a fundamental right were clearly written into law, the legality of it would require a “legitimate state interest” for why this right were being denied, and whether this was the least intrusive way to deny the right. This judicial review serves as a check on legislatures or mob rule run amok, and is one of the basic “checks and balances” under American democracy. In this case, the Court did not even want to weigh the matter- thus relegating “voting rights” to a whimsical privilege. Yet as Chief Justice Johnson writes, “There is no legitimate reason for disenfranchising these citizens.”

Although this chapter of the story concludes, VOTE v. Louisiana will be remembered as a lawsuit that united the brilliance of so many people and organizations, all of which contributed to our overall cultural shift. This historic litigation owes special thanks to Professor Bill Quigley (lead counsel), Advancement Project (appellate counsel team, particularly Denise Lieberman and Jennifer Lai-Peterson), League of Women Voters, American Probation and Parole Association, The Sentencing Project, Professors Andrea Armstrong, Davida Finger, and Lawrence Powell, and NAACP-Legal Defense Fund. Additional thank you to those attorneys who joined the fight before there was even a light at the end of the tunnel: Ron Wilson, Rob McDuff, Anna Lellelid, Vanessa Carroll, Ilona Prieto, Alexis Erkert, Patrick Murphree, and Megan French-Marcelin.

This case would be nothing without the courage of our plaintiffs: Kenneth “Biggy” Johnston, Bruce Reilly, Checo Yancy, Randy Tucker, Bill Vo, Huy Tran, and Ashanti Witherspoon. VOTE v. Louisiana was a model of 'movement-based lawyering' just that, a testament to self-empowerment, and an example of unity between jailhouse lawyers and allies. Regarding future legal filings... join VOTE's email list and stay tuned!
                                    “No Surrender, No Retreat!” - Checo Yancy

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