In a legal filing over Alabama’s policy of permanently banning people with certain felony convictions from voting, the state’s elections chief claimed that disenfranchisement is “only a minor disability.”
The Campaign Legal Center, a Washington, D.C.-based voting group, claimed in a lawsuit it filed in 2016 that Alabama’s felon disenfranchisement law, which blocks roughly 15 percent of Alabama’s black population from voting, is racially discriminatory and unconstitutional. In a motion to dismiss last month, Alabama Secretary of State John Merrill (R) argued that the law is neither punitive nor criminal.
“Felon disenfranchisement is not imposed to punish an offender,” Merrill’s attorneys argued in the motion. “Instead, felon disenfranchisement is akin to laws that prohibit voting by children and the insane — it is about ensuring that voters are fit to cast a ballot.”
But in an interview with ThinkProgress, Merrill said that courts often decide to punish individuals who commit crimes by revoking their voting rights. After he declined to comment on the ongoing litigation, ThinkProgress asked him if he sees revoking the right to vote as a punishment.
Merrill: Sometimes that’s the direction the court goes. Sometimes the court decides that, based on legislation that’s been passed, that individuals for whatever reason have forfeited their rights to participate and they are no longer eligible.
ThinkProgress: So then the court punishes them by revoking their rights?
Merrill: They have done that before. I’m sure they will do that again. If you’ve been convicted of certain crimes, then you have the potential to lose your right to vote, as an eligibility standard.
In the motion to dismiss the lawsuit, Merrill also argued that disenfranchisement is not as harsh as other penalties imposed on people with criminal records.
“Felon disenfranchisement imposes only a minor disability,” Merrill’s attorneys wrote. “It imposes ‘no physical restraint, and so does not resemble the punishment of imprisonment, which is the paradigmatic affirmative disability or restraint.'”
In a reply brief, the Campaign Legal Center questioned the argument, claiming “the right to vote is the most important right of citizenship.”
Last year, Alabama’s legislature passed and the governor signed the Definition of Moral Turpitude Act, which officially defined a list of crimes that are severe enough to revoke an individual’s voting rights. Previously, individual counties and elections officials had discretion in deciding which crimes were disqualifying and which were not, allowing a large number of Alabamians to be permanently disenfranchised because of nonviolent, low-level crimes.
The Campaign Legal Center estimates that because of the law, tens of thousands of ex-felons were able to register and vote for the first time during the December 2017 special Senate election.
“I finally got a chance to vote for the first time, and it feels awesome, man,” 23-year-old Dothan, Alabama resident Kameron McGlown told ThinkProgress after he cast his first ballot on Election Day.
This legal filing isn’t the first time that Merrill, who has served as Alabama secretary of state since 2015, has made comments showing how little he values the voting rights of Alabamians. In August, he told ThinkProgress that he won’t spend state resources to inform people with felony convictions that the new law was signed granting many of them the right to vote.
“You’re assuming they even want to vote,” he said. “I don’t know if they do and you don’t either.”
In May 2017, he explained to ThinkProgress that he’s not worried that the bill doesn’t go far enough to restore rights because voting is like getting free ice cream.
“If we had a stand in Anytown, U.S.A. and in that stand on Main Street we’re giving out ice cream. Anybody can come,” Merrill said. “They can only get one cone and it’s vanilla. There’s going to be some people who are gonna cry because they can’t get but one scoop, and there’s gonna be some people who are gonna cry because we don’t have chocolate. I don’t worry about the people who want two scoops, and I don’t worry about the people who want a different flavor.”
He has also claimed that automatic voter registration would “cheapen” civil rights leaders’ work, calling that method of registration the “sorry and lazy way out.” Last week, Maryland became the tenth on a growing list of states passing laws to automatically register people who visit DMVs or other government offices, which would make it easier for them to vote.
The Campaign Legal Center’s lawsuit over Alabama’s felon disenfranchisement law — which is scheduled to go to trial in May 2019 — claims that the policy is racially discriminatory, cruel and unusual punishment, and a violation of the Voting Rights Act.
Alabama remains one of ten states that permanently disenfranchise all or some people convicted of felonies. Only Florida, Kentucky, and Iowa have harsher restrictions that ban anyone convicted of any felony unless the government approves an individual’s rights restoration. In Florida, voters will have the opportunity this November to vote on a ballot amendment that, if passed with 60 percent support, would automatically restore rights to most people after they have completed their sentences.