Heightening the stakes in the criminal justice debate roiling the country at large, Gov. Jerry Brown could soon greenlight a law that would allow some state felons to vote from jail.

California has wound up in the middle of the pack on state laws around criminals and voting rights. “Two states, Maine and Vermont, allow felons to vote while behind bars,” KTVU noted, while “14 states restore voting rights automatically when a person is released from prison. 4 states, including California, restore voting rights after completion of parole.” The new rule, if Brown were to sign AB2466, carves out an exception for felons shifted out of state prisons due to realignment.

Constitutional claims

For that reason, advocates of the bill have characterized it as more of a formality than an overhaul of the state’s criminal law. In 2011, the Criminal Justice Realignment Act “created new sentencing categories for low-level, nonviolent offenders to remedy unconstitutionally overcrowded state prisons,” the NAACP’s Janai Nelson noted in the Los Angeles Times. “Instead of time in state prison, minor felony convictions now result in a term in the county jail followed by release under what’s known as mandatory or community supervision.” Given the opportunity to rule on how that changed status squares with voting laws, “Alameda County Superior Court already has held that people subject to this new form of mandatory or community supervision are not ‘on parole’ and therefore retain their right to vote,” Nelson added, claiming AB2466 would simply “codify that ruling” and eliminate any “ambiguity in how a felony conviction affects voter eligibility” in California. 

But critics have countered that the parole language is not as relevant to a proper interpretation of standing law as other elements of voters’ 1976 addition to the state constitution. “The Legislature shall prohibit improper practices that affect elections and shall provide for the disqualification of electors while mentally incompetent or imprisoned or on parole for the conviction of a felony,” that language ran in full. Although supporters of AB2466 “contend that the word ‘imprisoned’ in the California Constitution refers to a state prison, but not a county jail,” the looser interpretation AB2466 embraces “would create an odd circumstance in which inmates out of prison on parole are prohibited from voting, but felons behind bars in county jails could vote” — a view held by the state Sheriffs’ Association, as legislative director Cory Salzillo suggested to the Daily Signal. Given the low level of the judiciary ruling used as a baseline by AB2466, that could invite further litigation that would effectively freeze or scuttle the legislation before it is implemented. 

Signaling and consequences

For the bill’s supporters, that risk appeared to be one worth taking. “I wrote AB2466 because I want to send a message to the nation that California will not stand for discrimination in voting,” Assemblywoman Shirley Weber, D-San Diego, said in a statement, indicating a preference to pass legislation now and consider later whether it squares legitimately with the state Constitution. Weber has also advanced a bill that would add a five year period of eligibility for nonviolent felons petitioning a sentencing reduction in the wake of Proposition 47, which changed their crimes to misdemeanors. “But issues surrounding Proposition 47 generate significant controversy” as well, the Los Angeles Times recently observed. “The California Police Chiefs Assn. has blamed the initiative for a recent increase in property crimes across the state.”

In a final wrinkle fueling concern around the vote-from-jail law, impacted felons would face a logical but potentially problematic geographic restriction on their vote. “Under AB2466, these inmates would vote in the district where they are incarcerated,” noted state Sen. Patricia Bates, R-Laguna Niguel, in the Orange County Register. “For example, an inmate whose home residence is in San Clemente would be able to vote for local races affecting Santa Ana, since that is where Orange County’s Central Jail is located.” 

But Lt. Gov. Gavin Newsom and many other high-profile Democrats who sought the law continue to defend it. They hail it both for freeing up room in the Golden State’s long-overcrowded prisons and for moving away from a punitive criminal-justice status quo exemplified by both the state Legislature’s and state voters’ adoption of “three strikes and you’re out” measures in 1992 mandating that three-time convicts be locked up at least 25 years.

Now, however, Prop. 47 is coming under new criticism that can’t be blunted or turned away by talk of social justice. It has to do with a problem endemic to California’s direct democracy: Ballot measures are sold to voters with promises that often don’t come true.

In 2014, the measure’s advocates told Californians that savings from releasing state inmates would free up  “hundreds of millions of dollars annually, which would be spent on truancy prevention, mental health and substance abuse treatment, and victim services,” using language from a report by the nonpartisan Legislative Analyst’s Office. The claim was cited prominently in the official ballot argument for Prop. 47 and repeatedly in debates and interviews over the initiative.

Prop. 47’s savings a fraction of what was predicted

The California Department of Finance, however, says that never happened. Instead, in its official calculations for the 2016-17 budget, it predicted savings of just $29.3 million. Aware that the number would be a huge letdown to social service advocates, the governor and the Legislature arbitrarily inflated the amount to be granted to their programs in spring 2017 to $67.4 million.

But even with the boost, that’s a third of the low end of “hundreds of millions of dollars” that voters were told would go to help the needy.

The LAO doesn’t agree, issuing a report specifically challenging the $29.3 million figure. The document says the estimate is “about $100 million” low.

But in a recent Sacramento Bee story, the Brown administration said the LAO’s estimate depended upon a false assumption: that without Prop. 47, the state would have to pay to house more than 5,000 inmates in “contract beds” at expensive non-state facilities in California, Mississippi and Arizona.

Under Prop. 47, it is the Finance Department that makes the final call on how much money is judged to have been saved and is thus available for the social programs touted as benefiting from the ballot measure.

But this big picture doesn’t sit well with many lawmakers, starting with Assemblyman Reggie Jones-Sawyer, D-Los Angeles, and advocates for low-income residents.

State finding undercuts crime reformers’ credibility

The Brown administration’s position on Prop. 47’s savings has the potential to undercut the governor’s push for his own criminal-justice reform measure this November, Proposition 57, which would make it easier for “nonviolent” criminals in state prisons to gain parole.

The measure is already likely to be very controversial because the ballot language pushed by Jerry Brown and accepted by state Attorney General Kamala Harris classifies several categories of sexual attacks as nonviolent, as detailed on the website of the California District Attorneys Association. This includes the 2015 attack on an unconscious student by then-Stanford athlete Brock Turner, a case that has drawn national attention because of fury over the light sentence Turner was given.

Prop. 57’s path to adoption could be further complicated if its critics can point to Prop. 47’s unmet promises and say that in California, criminal justice reform advocates have a credibility problem. Disappointed social services advocates such as Aqeela Sherrills, an activist who lobbied for Prop. 47’s passage, are likely to help make the case.

“We pass an important ballot initiative, we change the law and we change the game to reallocate the resources,” Sherrills told the Bee. “Then they start playing with our money again. I don’t understand. I was like, ‘Man, no.’”