Could felons soon vote from jail?

Good morning. So close to Friday!

All eyes are on Jerry Brown as he continues to decide the fate of many, many bills. In fact, heightening the stakes in the criminal justice debate roiling the country at large, 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.

CalWatchdog has more.

In other news:

• “Two women have been arrested on charges of holding four brothers captive at an illegal marijuana farm in Northern California and forcing them to work there for six months, police said Wednesday.” The San Jose Mercury News/AP have more.

• “Tehama County sheriff’s detectives investigated 10 murders in 2014 and 2015 — twice as many as the three previous years combined. ‘Our last four homicides were all in what you would call Prop. 215 (marijuana grows),’ said Sheriff Dave Hencratt, referring to large grows under the state’s medical marijuana law.” The Redding Record Searchlight has more.

• “Air quality regulators are considering seeking an increase in vehicle registration fees for millions of Southern California drivers to help pay for smog reduction programs,” reports the Los Angeles Times.

• Almost 40 years after California voters passed Proposition 13 to rein in property tax increases, available data shows that wealthy Californians have benefited the most, according to a new report from the state Legislative Analyst’s Office. 

Legislature:

• Gone ’til December. 

Gov. Brown:

• No public events announced.

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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.” 

A tale of two controversies

“The fate of the citizen redistricting commission hangs most directly in the balance, pending a decision by the court in June about whether such panels are legally allowed to determine congressional districts,” the Los Angeles Times reported. “If the court strikes down independent commissions, it could set off a scramble in the Legislature to redraw California’s congressional map.”

In another case, the Supreme Court could make even bigger waves next year with a ruling on who must be counted within a state during the district-drawing process. As Yale law professors Bruce Ackerman and Ian Ayers noted, the court will face “two basic options. It can stick with what most states do now and require each district to contain an equal number of inhabitants: This will favor urban Democratic areas with many immigrants and children. Or it can instead insist that districts include an equal number of eligible voters, and thereby favor rural Republican regions.”

High stakes

For those working to legalize unlawful immigrants, much was placed at stake by the court’s decision to take up the case. If the court were to rule against counting immigrants with partially legal or illegal status, the political balance of power in California would transform overnight. What’s more, the push to fully legalize all immigrants would hit a substantial and symbolic obstacle.

But restricting statewide head counts to eligible voters only — a much smaller population than the one excluding unlawful immigrants — could send political shock waves through California. As the Washington Post confirmed, “high-diversity districts like the 40th in Los Angeles County have substantially fewer eligible voters than the whiter, rural section of the state represented by the northern 1st District. Measured by population, the two districts are equal in size. Measured by eligible voters, the northern 1st District is twice as big as [the] LA-area’s 40th[.]”

State Senate Leader Kevin de Leon, D-Los Angeles, bridled at the implications of that shifted standard. Referring to the time period before 1964, when the court ruled districts had to be approximately equal, de Leon noted that “Los Angeles County and its 6 million people […] had the equivalent voting power in our state Senate as a rural district with barely 14,000 people.”

Hoping to prevent that kind of change, Ackerman and Ayers have argued that Section 2 of the 14th Amendment should determine the outcome, since its language clearly indicates that districts “shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” But even if the court shies away from leaving uncounted all residents ineligible to vote, the exclusion of native Americans could be interpreted as a logical precedent for excluding immigrants lacking a formally and fully legal relationship with the federal government and the state within which they reside.

Partisan heat

Until now, the Supreme Court has not seen fit to intervene so extensively in the way redistricting is done. From a nonpartisan standpoint, the plaintiffs’ case offered an opportunity for the court to clarify an area of constitutional law that had been left unspecified.

Partisan standpoints, however, have prevailed to date. As the New York Times observed, the headcount case originated in “a challenge to voting districts for the Texas Senate,” brought by two voters “represented by the Project on Fair Representation, the small conservative advocacy group that successfully mounted [an] earlier challenge to the Voting Rights Act. It is also behind a pending challenge to affirmative action in admissions at the University of Texas at Austin.” That pedigree has gone a long way to shape expert reaction to the case.

Personally, I don’t think there should be any mandatory government ID cards. Roads should be privatized, allowing the private owners to decide what ID, if any, is needed to use them. Minors buying booze should be determined by parents, not government.

But it is reasonable to ask for a government ID in a government election of a government politician for a government office.

Yet U.S. Attorney General Eric Holder now is suing Texas for requiring a government ID in a government election of a government politician for a government office. Supposedly, the right to vote of minorities is being infringed. But how hard is it for minorities — or anyone — to get either a state driver’s license, or (for non-drivers) a state ID card? Not hard at all.

OK, if Texas’ DMV is as slow and incompetent as California’s, maybe he could sue them for long lines. But that’s it.

Question: When Holder’s employees come to work at the U.S. Justice Department, do they have to show a government ID card?

Answer: Of course they do. So maybe he should sue himself.

Approval of voter ID is settled case law. As recently as 2008, the U.S. Supreme Court allowed them in 6-3 vote involving Indiana’s voter ID law. The majority opinion was written by Justice John Paul Stevens, one of the most liberal ever on the court. He wrote, “The state interests identified as justifications for [the law] are both neutral and sufficiently strong to require us to reject” the lawsuit.

Of course, what’s really going on here is a desire to spread massive voter fraud from President Obama’s base in Chicago, where the dead notoriously vote again and again, to the whole country, thus assuring the president’s re-election. As the old Chicagoland saying has it, “Voter early and vote often.”

The country already has had enough questionable elections. Vote fraud still hangs over the Florida “hanging chads” in the 2000 election of Republican President George Bush, and the Ohio vote counting in his 2004 re-election.

Holder and his boss must know that they won’t win these cases. But the can cause enough confusion until Obama’s November re-election possibly to give them an edge.

Democracy depends on honest elections. What we’re getting is a slide into Third World corruption.

March 15, 2012