Thompson v. Merrill
In 2017, Alabama changed its felon disenfranchisement law, allowing more people with convictions access to the right to vote. If you are a person with a conviction in Alabama, click here for our rights restoration toolkit.
CLC released a video on November 30, 2017 highlighting stories of voters whose voices are silenced in the state. Their stories represent a nationwide problem.
Watch the video.
About Felony Disenfranchisement
Felony disenfranchisement laws silence the voices of 5.85 million citizens who are banned from the polls today. As many as 75 percent of these disenfranchised voters are no longer in prison but are not able to vote.
Citizens with past felony convictions work and pay taxes, and should have a say in deciding their community’s and the nation’s laws that directly impact their lives. Denying these citizens with past felony convictions the opportunity to fully integrate as members of society sends the message that they will permanently be treated as second-class citizens. Studies have shown that restoring the vote to persons leaving prison could aid their transition back into community life.
In addition, felony disenfranchisement laws are largely the legacy of the Jim Crow era, continue to primarily impact people of color, and therefore distort our democracy. Nearly half of voters disenfranchised through these laws are black. Disenfranchisement not only impacts citizens with past convictions themselves, but also disempowers the minority groups to which they belong.
Some U.S. states have no restrictions on voting, while others have a lifetime ban upon conviction. Twelve states, including Alabama, permanently disenfranchise some or all citizens convicted of felony offenses.
Our lawsuit, Thompson v. Alabama, is a challenge to Alabama’s law, which is one of the most severe and discriminatory in the nation. Our legal team has developed a number of legal theories and claims that will create a legally viable pathway for changing the jurisprudence on the issue of felon disenfranchisement in Alabama and possibly nationwide.
U.S. Landscape: Felony Disenfranchisement by State
Some U.S. states have no restrictions on voting, while others have a lifetime ban upon conviction. By contrast, almost half of European countries allow all incarcerated individuals to vote, facilitating voting within the prison or by absentee ballot.
- Only two states – Maine and Vermont – do not disenfranchise felons at all. There are no restrictions on their voting rights – not even while they are in prison.
- Fifteen states limit felon disenfranchisement to the time individuals spend in prison. This includes Washington, D.C., Hawaii, Illinois, Indiana, Maryland, Massachusetts, Michigan, Montana, New Hampshire, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island and Utah.
- Four states’ felony disenfranchisement laws apply to those who are in prison or serving parole. These include California, Colorado, Connecticut and New York.
- Eighteen states prohibit citizens convicted of felony offenses from voting while they are in prison, on parole or probation.
- Only twelve states, including Alabama, permanently disenfranchise some or all citizens convicted of felony offenses.
Alabama’s law prevents some people from ever voting again even after they have fully served their sentence while others are only able to restore their rights if they comply with a burdensome process.” Alabama is one of 11 other states that restrict voting rights even after a person has served his or her prison sentence and is no longer on probation or parole. Based on the most recent estimates Alabama’s law disenfranchises over 286,000 people in the state: 7.6% of the entire statewide voting-age population and 15.1% of the adult black male voting-age population.
Alabama disenfranchises individuals with certain felony convictions, so-called “crimes of moral turpitude.” The list of convictions “involving moral turpitude” includes a number of non-violent crimes, including almost all theft crimes. Citizens with these “disqualifying” convictions may petition to have their rights restored, but only after paying all court ordered fines, fees, and restitution, the equivalent of an insurmountable poll tax for many otherwise eligible voters.
Moreover, for many years the state did not define “moral turpitude” or create a complete list of felonies that disqualify a voter. This led to many people being wrongly told by registrars that they could not vote, when in fact, they had never lost their rights. Thompson v. Alabama, among other things, challenged this vague and arbitrary system of disenfranchisement.
On May 17, 2017, nearly eight months after the filing of this lawsuit, the Alabama Legislature passed HB 282, a bill that defined what crimes involve "moral turpitude" for the purposes of determining which citizens can vote. However, the state has not made a significant effort to correct many years of registrars erroneously denying the right to vote to people who were convicted of crimes that are not considered disqualifying under the new law. Nor has the state meaningfully worked to educate the public about who can vote under the new law. The state voter registration form still does not include the list of disqualifying crimes.
As a result, many Alabama citizens with felony convictions remain unsure as to whether their crime is disqualifying, and for that reason, do not know if they can register to vote. The law requires individuals who want to restore their right to vote to sign, under penalty of perjury, that they have not been convicted of a crime that disqualifies them from registering to vote. Many do not want to risk perjuring themselves, and so are unable to register to vote. The practical result is the disqualification of nearly all citizens with any felony conviction whatsoever.
For more information on Alabama’s new law and which felony convictions are disqualifying, please click here.
In the 1974 case, Richardson v. Ramirez, three men from California who had served time for felony convictions sued for their right to vote, arguing that the state’s felony disenfranchisement policies denied them the right to equal protection under the law. The U.S. Supreme Court upheld California’s felony disenfranchisement policies as constitutional, finding that Section 2 of the 14th Amendment allows the denial of voting rights “for participation in rebellion, or other crime.”
In the wake of Richardson v. Ramirez, subsequent legal challenges to felon disenfranchisement were largely unsuccessful, including several attempts to challenge felon disenfranchisement under the Voting Rights Act. As a result, federal litigation challenging felon disenfranchisement has all but disappeared.
The only subsequent Supreme Court case on the issue is on from Alabama, Hunter v. Underwood (1985). The Supreme clarified that felony disenfranchisement provisions are unconstitutional if they are infected with a racially discriminatory purpose. The Supreme Court held that Alabama’s prior disenfranchisement law, adopted in its 1901 state constitution, which disenfranchised those convicted of crimes “involving moral turpitude,” was explicitly adopted for a racially discriminatory purpose and therefore was unconstitutional.
Our Challenge in Alabama
CLC represents individuals in Alabama who are U.S. citizens with past felony convictions, seeking the right to vote. Some are unable to vote because their convictions are considered "disqualifying" under Alabama's law, and others because they cannot afford to pay their court fees to restore to register to vote.
CLC, alongside its partners, has filed a broad challenge to Alabama’s felony disenfranchisement law under the United States Constitution and the Voting Rights Act.
First, the lawsuit alleges that the “moral turpitude” standard used by Alabama to determine who can vote is intentionally racially discriminatory and leads to arbitrary and unconstitutional disenfranchisement of citizens. The term "moral turpitude" was first put into Alabama's constitution in 1901 during a constitutional convention held for the purpose of "establish[ing] white supremacy."
Second, the lawsuit alleges that Alabama's system of restoring rights--a system that conditions voting on ability to pay one's ballooning court fines and fees--is a modern day poll tax that violates both the Constitution and the Voting Rights Act.
Finally, the lawsuit alleges that broad felon disenfranchisement simply is not sanctioned by the 14th Amendment’s “rebellion or other crime” language and the Constitution supports, at most, very limited disenfranchisement of voting-related offenses. The lawsuit is an opportunity for silenced voices to be heard in our democracy and finally turn the page on this dark page in our country’s history.
On May 17, 2017, the Alabama Legislature passed HB 282, a bill that defined what crimes involve "moral turpitude" for the purposes of detemining which citizens can vote. This bill is a step in the right direction but does not address Alabama's system of conditioning restoration of the right to vote based on wealth.
Read CLC's reaction to the passage of HB 282
On December 26, 2017, a federal court denied Alabama’s motion to dismiss our lawsuit. Alabama had sought to have this case dismissed in its entirety and also argued that the 2017 law solved any potential constitutional problems. The federal court denied the motion to dismiss on many of our claims, and the case will continue to proceed in federal court toward a trial.
Mr. Lanier, 50, is a U.S. citizen and lives in Birmingham, Alabama. He served 18 years in prison. He has never voted and never registered to vote but wishes he could engage in a greater part of his community. He volunteers with the Empowerment Alliance, a group that provides assistance to those reentering the community from incarceration. He would like to register to vote but isn’t sure whether his convictions are disqualifying and so he cannot affirm under penalty of perjury that he has not been convicted of a “disqualifying crime.”
“I served 18 years in prison. In order to get a driver's license to search for work, I first had to pay over $4000 DMV fines and fees dating back to about 1989. I tried to get them waived but couldn't. My first few months home, I was at a loss. I was looking for anything to do to become a fully functioning member of society. I asked my parole officer about getting my voting rights and he told me that I couldn't. My excitement to be out of prison was quickly dashed at every turn.
The psychological impact of not being able to vote is astounding. I lived 18 years in below par conditions and was treated ‘less than’ human. I get out and realize that I am still considered less than human - not a true citizen. Decisions are still being made for me, but I am expected to prove myself with both hands tied behind my back.
I did my time but I’m not allowed a voice in the community that I am expected to reintegrate in. Where is the encouragement and door to establish roots and become a law-abiding citizen? I have walked out of one cell and into another. I still feel shackled and locked down.
Due to the help of my family and friends, I am not desperate - all hope is not lost. I started working as a personal trainer and was able pay to get my driver's license. I recently completed a truck driving program and now also have my CDL. I have started a truck driving business called EZ Trucking with a friend and we will employ others like me. I am also working on starting a nonprofit called the Empowerment Alliance and establishing reentry program.
I am doing all of this and still can't vote.
I believe the biggest form of voter suppression IS mass incarceration. There are over 5 million people in the U.S. that are unable to vote due to their prior conviction record. The overwhelming majority are black men - like me.
The impacts of mass incarceration are strategically undoing the positive impacts of the Voting Rights Act, special thanks to the war on drugs. How we determine who has the right to vote, how difficult we make the process of restoration, how we inform/educate citizens about their rights, etc.—reflects the extent to which we value the voices, citizenship and humanity of previously convicted individuals, like me.”
Pamela, 58, is a U.S. citizen and lives in Montgomery, Alabama. She was convicted of a domestic-violence related murder in 1990, and she was released in 2010. She must serve life parole, so she’s not eligible to restore her rights and is facing permanent disenfranchisement unless she receives a pardon. Before her conviction, Pamela was registered to vote in Montgomery County, and would like to be able to vote in the 2016 election.
“Being able to vote means I would have a voice of what goes on in America,” Pamela said. “To have my voting rights back would be a step forward and it would make me feel like a more complete citizen. People have died for the privilege to vote and I would like to be able to vote. I’d also like to see voting rights back for all ex-felons. That’s why I’ve stepped forward to be a part of this case. It would help other people who are trying to get their life back on the right track. We pay taxes, why shouldn’t we be able to vote?
It’s not right that you come out of prison, but even though you have served your time, it still feels you are unforgiven. Time was hard to do. But it’s hard to live now, too. You can’t apply for a job the same way, you are always excluded from different things. It shouldn’t be that way. You shouldn’t have to keep asking for your rights after you have served your time. I would like for the door of my past to be closed and shut, and to be able to go on and be a regular citizen.”
Larry Joe Newby
Larry Joe Newby, 60, is a U.S. citizen living in Huntsville, Alabama. He has adopted his two grandsons (ages 14 and 15) and is supporting them through private school. He works for Madison County, and has gained increasing responsibility at work in the 17 years he has been there, now serving as an assistant supervisor. He is married, attends church, and regularly gives back to his community. Yet, he’s unable to vote.
In 2003, Larry was convicted of receiving stolen property, a minor felony, and sentenced to 17 years in prison. He was released from the state penitentiary in 2007 and completed his parole in 2016.
Prior to his convictions, he was registered to vote in Madison County, but was removed from the voter registration list by the Madison County Board of Registrars because of his conviction. Larry completed his parole and probation in 2016, and soon after applied to register to vote, but his application was denied because the county claimed his felony convictions were “crimes of moral turpitude.” Under Alabama law, if someone is convicted of a “crime of moral turpitude,” he/she is prevented from registering to vote without applying to the state to restore the right.
In August, with the help of his probation officer, Larry applied to the state for the restoration of his voting rights. He is hoping he can vote in the 2016 Election.
“I would like to have an opportunity to put in a choice for the president. I’d like to vote for not just for president, but in my district and for governor. Having my right to vote back would make me feel respected as a person. It would be something I would be grateful for – to have the opportunity to go register to vote and go to the polls.
I’d like to see my rights be restored as a person with a past history of felony convictions, and I’d like to see other people in the similar situation as me have the right to vote, too. I know several people, from different communities, who I’ve grown up with also make mistakes in their past and still don’t have the privilege to be a voter. In Alabama, there is a high volume of people who don’t have the right to vote, African American men especially. Something needs to be done. You do your time, you pay your debt to society, so you ought to be able to return back home and your society and be able to speak freely and vote freely.”