For this weeks Stop the ACLU Blog Burst, I would like to tell you about a local case.

In this case, the issue is felons and voting rights.

Washington is one of many states that revoke the voting rights of felons.  The law in Washington allows for the eventual restoral of their voting rights, following their prison term, paying all fines and restitution, probation and parole.

In other words, satisfy the courts judgment first, and then you can vote.

Most of it is not really at issue.  The part that makes the ACLU see red is the aspect of the court ordered fines and restitution.  They contend this is an effective poll tax, whereby only the rich felons can vote, not the poor ones.  Since court ordered fines and or restitution can be large, it can take years for a felon to satisfy the court.  The felons argue that if they are making a good faith effort to make payments, they should be able to vote.

I personally don't have an issue with them having to wait to satisfy the debt, but I can see their point.  At the same time though, no one forced them to commit a felony.  And if there is a price to be paid, let them pay it.  That is part of the sentence.  

And be clear, this is not what some call the minor ir petty criminals, the people convicted of misdemeanor possession or such, this is convicted felons only.  In theory, if the law is doing its job, they are the more hardcore of the criminals.

Now, that said, should their be a mechanism to deal with unreasonable fines and or penalties?  I think so.  But that is a local and legislative issue.  And in reality that is secondary from the felon who refuses to pay his restitution and still wants his or her voting rights restored.  I have no statistics, but it would be interesting to see how widespread this is.

And one can argue that the victims waiting restitution have a right to know the person who committed a crime against them is still having to suffer some fashion of restriction until that debt is paid.

This by the way was an issue in the recent governor's office challenge, where felons were found to be voting illegally (which is a felony ironically).

 High court hears arguments on restoring voting rights to felons who owe fines

The voting rights of tens of thousands of released felons are now in the hands of the state Supreme Court, which heard arguments Tuesday in a case being closely watched by national voting rights groups.

The high court is being asked to consider whether felons who have fulfilled all terms of their sentence except court-ordered fines should have their voting rights restored. State law requires felons to complete their entire sentence, including probation or parole, and satisfy all applicable financial obligations before they can resume voting. The individuals must obtain a certificate noting their voting rights have been restored.

Arguing for the American Civil Liberties Union, attorney Peter Danelo told justices that the group doesn't disagree with Washington's right to disenfranchise convicted felons, or the requirement that they pay court-ordered fines. But the right to vote should not be tied to those fines, he said.

"What this case is about is whether the state, once it decides to restore the vote to former felons, can make the right to vote turn on whether particular felons are wealthy enough to pay financial obligations immediately," he said.

It is unclear exactly how many people previously convicted of felonies are barred from voting in Washington solely because they haven't paid their fines. A 2002 state estimate calculated the figure at more than 46,000 people.

In March, a King County Superior Court judge ruled that the financial requirement violates the equal protection clauses in the U.S. Constitution and the state constitution.

The state quickly appealed, arguing that the right to vote is not a fundamental one for felons.

That does raise an interesting question:  Is the right to vote intrinsic?  We restrict it based on age and used to restrict it on other aspects. 

I also wonder if this is going to be looped in to gun ownership, a 2nd Amendment right, which many states deny convicted felons. 

State Attorney General Rob McKenna, in his first appearance before the high court, argued that court-imposed fines are as much of a sentence as prison time and that poor felons should not be given any special consideration.

"They're required to complete all terms of their sentence," McKenna said. "Just as a rich person would have to serve all of his time in jail even if he paid his financial obligations immediately upon conviction, all felons are required to pay their legal financial obligations" before having their voting rights restored.

He said any changes to the law need to be undertaken by the Legislature, not the courts.

The ACLU of Washington's lawsuit was filed on behalf of three convicted felons: Daniel Madison of King County, Beverly DuBois of Spokane County and Dannielle Garner of Snohomish County.

All three were making regular monthly payments to the courts, but were indigent and unable to pay off their fines, Danelo said.

Chief Justice Gerry Alexander cited the case of DuBois, who was convicted on a marijuana charge in 2002. The $10 per month she has been paying since her release in 2003 doesn't even cover the interest, and her $1,600 fine has increased to nearly $2,000.

"All she wants to do is vote, which seems to be a meritorious goal, to want to vote, but she can't do it," Alexander said.

Note:  Is $10 bucks a month really a good faith payment?

McKenna responded that a felon in prison could "make the argument that it would be meritorious for him to vote or her to vote from prison."

"But the state has made a policy decision, which is constitutional, that they have to complete all terms of their sentence," he said.

Justice James Johnson appeared to agree.

"Paying back the victim — isn't that a compelling interest to the state?" he asked Danelo.

Danelo said that indigent felons can't be punished for something that they can't do — which is immediately pay their fines.

"You just can't seriously argue that the state has some interest in getting blood out of a turnip," he said. "There's no rational basis to say 'If you can't pay me, I want him not to vote, because then he'll pay me.'"

Danelo cited the 1966 U.S. Supreme Court case, Harper v. Virginia Board of Elections, in which the court struck down Virginia's poll tax as unconstitutional.

Johnson noted that that particular case was dealing with a tax levied on all qualified voters of the state. "Your people are not qualified voters," he said to Danelo.

But Danelo responded that the intent of the court was clear.

"You can't tie the vote to money," he said. "That's the clear announcement of the United States Supreme Court."

No necessarily.  A poor voter living in a rural area far from a polling site is not automatically guaranteed a free car ride to the poll because he or she does not own one.  Granted, most people would be happy to assist them, but not out of constitutional necessity.  Money is not always a compelling issue.

Even though Superior Court Judge Michael Spearman ruled in its favor, the ACLU is also asking the Supreme Court to expand the scope of the ruling.

Spearman's ruling specifically mentioned felons who are unable to pay due to their "financial status." The ACLU wants voting rights to be separate of financial obligations, regardless of the person's financial status.

Washington's neighbor, Oregon, automatically restores voting rights to felons once they've completed their sentences.

A written opinion could come down later this year. ACLU attorney Aaron Caplan said that to his knowledge, the three people in the case have not yet registered to vote. He also did not know how many former felons may have already registered to vote while the court considers the case.

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