California: Ex-Prisoners on Community Supervision Secure Major Voting Rights Victory

by Lonnie Burton

Tens of thousands of convicted felons in California will have their voting rights restored after Secretary of State Alex Padilla announced he will not pursue an appeal of an Alameda County Superior Court ruling that struck down an edict issued by former Secretary of State Debra Bowen, which directed county clerks to deny the right to vote to certain offenders.

“If we are serious about slowing the revolving door at our jails and prisons, and serious about reducing recidivism, we need to engage – not shun – former offenders,” Padilla said in announcing his decision. “Voting is a key part of that engagement; it is part of a process of becoming vested and having a stake in the community.”

Padilla’s decision not to challenge the court ruling means that low-level felons serving sentences under the community supervision provisions of the state’s 2011 Criminal Justice Realignment Act will now be eligible to vote. An estimated 58,000 offenders are serving their sentences under the Realignment Act, though officials noted that number includes underage offenders and non-citizens who are barred from voting.

The announcement marked a victory for the ACLU and League of Women Voters of California, which along with other groups had filed the successful lawsuit challenging the constitutionality of Bowen’s edict. Bowen appealed the superior court’s landmark decision striking down her anti-voting directive, but left office at the end of 2014 under term limits.

On August 14, 2015, Padilla filed a motion to withdraw the appeal. “I believe it’s the right thing to do,” he said. “Civic engagement and participation in the electoral process can be an important factor helping former offenders reintegrate into civil society.”

The controversy had its roots in California’s Realignment Act, which forced the state to make significant changes to its prison system to relieve severe overcrowding as a result of the Plata v. Brown and Coleman v. Brown class-action lawsuits. [See: PLN, July 2011, p.1]. The Act provided for the release of low-level felons into county-based supervision programs.

After the law was passed, former Secretary of State Bowen issued an 18-page directive to county officials across California informing them that offenders on mandatory supervision and post-release community supervision were ineligible to vote because those types of release were “functionally equivalent to parole,” and California law prohibits parolees from voting.

The ACLU and League of Women Voters claimed that Bowen illegally disenfranchised tens of thousands of Californians who were eligible to vote unless they were “imprisoned or on parole for conviction of a felony.” Because the state legislature created mandatory supervision and post-release community supervision as alternatives to parole for low-level, non-serious felonies, the organizations argued, offenders on those types of supervision were neither imprisoned nor on parole, and therefore eligible to vote.

In a landmark 27-page decision issued on May 7, 2014, Alameda County Superior Court Judge Evelio Grillo agreed, finding that offenders on mandatory supervision and post-release community supervision have “the same right to register to vote and to vote as all other” Californians. Further, the court issued a broad writ of mandate requiring the state to allow those in community-based supervision programs to vote and to update voter education and registration materials to reflect the new policy.

“There is nothing in the language of the Realignment Act indicating the Legislature intended ‘parole’ to apply to noncustodial supervision,” Grillo wrote. “The court finds the Secretary’s ‘functional equivalency’ analysis unsound and lacking legal support.” Grillo further held that Bowen’s directive stating that mandatory supervision and post-release community supervision were the “functional equivalent” of parole lacked any authority in statute, case law or the legislative history of the Realignment Act.

In addition, the ruling noted that because the state legislature used different words in describing the new types of community supervision, the programs could not be considered “parole” by definition. “When different words or phrases are used in the same connection in different parts of a statute, it is presumed the Legislature intended a different meaning,” Grillo said.

Finally, the court held that even if the case were a close call, California law requires the presumption in favor of the right to vote. See: Scott v. Bowen, Secretary of State of California, Alameda County Superior Court (CA), Case No. RG14-712570.

“Democracy functions best when the largest number of citizens possible participate, including formerly incarcerated people,” declared Dorsey Nunn, executive director of the San Francisco-based advocacy group All of Us or None, which joined in the lawsuit.

Padilla’s decision to abandon the state’s appeal “sends the nation a message that California will not stand for discrimination in voting and that he will fight to protect the right to vote for all eligible Californians,” ACLU spokeswoman Anna Castro said in a statement.

Not everyone hailed Padilla’s pronouncement, though. The chairwoman of Crime Victims United of California, Harriet Salarno, called it a wrong move.

“With [the felons] voting and with some of the things that we have on the ballot – that will harm us on public safety,” she opined.

Padilla’s decision not to pursue the appeal of Judge Grillo’s ruling came just two days before the 50th anniversary of the federal Voting Rights Act of 1965, which banned racial discrimination in voting.

“It is not lost on me that persons of color are disproportionately represented in correctional institutions and that undeniable disparities exist,” Padilla said. “It is not lost on me that many states in our nation are advancing legislation to roll back our voting rights, not just for former offenders but for all voters.”

“This vote that we are talking about is not just simply a vote that belongs to incarcerated or formerly incarcerated people,” Dorsey Nunn added. “It’s a vote that belongs to our families, to our children, that was fought for and bled for by people of color. So, to me, today is an excellent day, and it’s an excellent start.”

The Washington, D.C.-based Sentencing Project estimates that around six million people in the United States are unable to vote due to felony convictions.

Additional sources: www.sacbee.com, www.contracostatimes.com, www.motherjones.com