Thursday, December 15, 2011
The Indiana Supreme Court has issued a mindboggling opinion pdf finding that, while a misdemeanor battery conviction is not an infamous crime,and therefore is not within the scope of the infamous crimes exception to the right to vote under the indiana constitution, the legislature under its police power can just disenfranchise anybody anytime. That's not what they said, but it's what they did.
As usual, I learn of the case when Hasen cites Oddi. The Indiana Law Blog has detailed coverage of how the case has been progressing. It came to the Indiana Supreme Court by way of certification from federal court, and a big part of the court's commentary is about the problems with certification, and some griping about why don't litigants just bring these cases in state court to begin with. As a person who has tried to do that in the past, I can understand why the common wisdom is to avoid state court and seek federal court. Not, however, that federal court is much better. I'm specifically referring to the 7th circuit and the southern district of Indiana. I have had no interactions with Judge Lawrence, the judge here,and these remarks are not about him. Bill Groth is plaintiff's lawyer here, who lost the Indiana Voter ID case (the state one, LWV v Rokita) when, as it did here, the Court chose not to give much substance to Article II section 2, the right to vote.
The opinion is, shall we say interesting, in several respects. It's long,and probably dry reading for those who aren't election geeks - I don't expect any outcry as there was when the Court not too long ago botched a case about the right to resist cops breaking into one's home.
One of these respects is that the Court's decision is based on a question the federal court hadn't asked.
Plaintiff's argument at the federal court is that a federal statute is violated, when plaintiff's voter registration was cancelled while he was in jail on a misdemeanor, if (and only if, "iff") the state constitution was violated,and therefor his disenfranchisement was unlawful, or unauthorized, or something.
We construct our suits this way because of 42 USC 1985, the legal fees provision that goes along with section 1983. Indiana has no civil rights enabling legislation which would provide for legal fees in state constitutional suits. I also suspect that state courts are less willing to correctly calculate the fees for prevailing parties. I don't know if someone's researched that.
The certified question was whether plaintiff's crime, a misdemeanor, was infamous.
In detail,the Court traces the history of infamy through Greece, Rome, England, the Indiana Territory, and legislature under the first and second Indiana constitutions.
The Court reversed some of its earlier precedents,and did so correctly in my opinion.
This reminds me of one of the best lectures I heard in law school. It was a black studies professor whose advice was, don't be fooled by what the court says, watch what it does. Cases where they hang the guy will have flowery language about the sanctity of life.
An aside: the statute plaintiff was convicted under is unconstitutionally void for vagueness. Battery in Indiana is touching someone "in a rude, insolent or angry manner." I was once falsely accused under this statute, and it turns out to be very difficult to defend against, because it's slippery and vague. In my case the charges were dropped.
But that probably doesn't help plaintiff here,and anyway it's not an argument
he's raised.
Anyway, after concluding that his crime wasn't infamous,the court says the legislature has the power to disenfranchise him anyway. Now, it is true that prisoners lose some of their rights, as a matter of due process or the Indiana equivalent, due course of law. But that's not the issue here, because the Indiana Constitution sets out, in article II section 2, that everyone has the right to vote if they are over 18, live here for 3o days, and some third thing. The exceptions to this, textually, are narrow and few, including the power of the legislature to disenfranchise for infamous crimes, which this wasn't.
I have not read the various briefs in this case. I get the impression that section 2 wasn't discussed in detail, because both sides assumed that the infamous crimes clause would control and decide the case. In LWV, the court construed section 2 as not meaning much, for the 1000 people who were disenfranchised in 2008 by voter ID. Here, they don't even bother to mention it.
What will and should Judge Lawrence do next? It's a sticky wicket.
I wonder if anyone has a breakdown of the extent to which minorities are disproportionately affected. In my neighborhood, it is not uncommon for people to be falsely charged with felonies, and to take a misdemeanor plea bargain to make the case go away, if one cannot afford private counsel; minorities are more likely to be poor and less able to afford private counsel.
My guess is that the number of people disenfranchised by being de-registered when jailed, however briefly, for misdemeanor convictions, exceeds the number of in-person fraudulent votes that the voter ID statutes are directed at.
In a Bush v Gore related case, some research has shown that the false purging of people who weren't actually felons was enough to tip Florida and the country, to the GOP column in 2000. It would be interesting to know how many people have been purged in the way this case upholds,and whether that brings some elections within the margin of litigation. Maybe it's in the briefs, maybe it's a case for Mike Pitts or his students.
The prevailing defendant in this case was J Bradley King, one of the head honchos of the Indiana Election Division. We've tangled before,and will again.
As usual, I learn of the case when Hasen cites Oddi. The Indiana Law Blog has detailed coverage of how the case has been progressing. It came to the Indiana Supreme Court by way of certification from federal court, and a big part of the court's commentary is about the problems with certification, and some griping about why don't litigants just bring these cases in state court to begin with. As a person who has tried to do that in the past, I can understand why the common wisdom is to avoid state court and seek federal court. Not, however, that federal court is much better. I'm specifically referring to the 7th circuit and the southern district of Indiana. I have had no interactions with Judge Lawrence, the judge here,and these remarks are not about him. Bill Groth is plaintiff's lawyer here, who lost the Indiana Voter ID case (the state one, LWV v Rokita) when, as it did here, the Court chose not to give much substance to Article II section 2, the right to vote.
The opinion is, shall we say interesting, in several respects. It's long,and probably dry reading for those who aren't election geeks - I don't expect any outcry as there was when the Court not too long ago botched a case about the right to resist cops breaking into one's home.
One of these respects is that the Court's decision is based on a question the federal court hadn't asked.
Plaintiff's argument at the federal court is that a federal statute is violated, when plaintiff's voter registration was cancelled while he was in jail on a misdemeanor, if (and only if, "iff") the state constitution was violated,and therefor his disenfranchisement was unlawful, or unauthorized, or something.
We construct our suits this way because of 42 USC 1985, the legal fees provision that goes along with section 1983. Indiana has no civil rights enabling legislation which would provide for legal fees in state constitutional suits. I also suspect that state courts are less willing to correctly calculate the fees for prevailing parties. I don't know if someone's researched that.
The certified question was whether plaintiff's crime, a misdemeanor, was infamous.
In detail,the Court traces the history of infamy through Greece, Rome, England, the Indiana Territory, and legislature under the first and second Indiana constitutions.
The Court reversed some of its earlier precedents,and did so correctly in my opinion.
This reminds me of one of the best lectures I heard in law school. It was a black studies professor whose advice was, don't be fooled by what the court says, watch what it does. Cases where they hang the guy will have flowery language about the sanctity of life.
An aside: the statute plaintiff was convicted under is unconstitutionally void for vagueness. Battery in Indiana is touching someone "in a rude, insolent or angry manner." I was once falsely accused under this statute, and it turns out to be very difficult to defend against, because it's slippery and vague. In my case the charges were dropped.
But that probably doesn't help plaintiff here,and anyway it's not an argument
he's raised.
Anyway, after concluding that his crime wasn't infamous,the court says the legislature has the power to disenfranchise him anyway. Now, it is true that prisoners lose some of their rights, as a matter of due process or the Indiana equivalent, due course of law. But that's not the issue here, because the Indiana Constitution sets out, in article II section 2, that everyone has the right to vote if they are over 18, live here for 3o days, and some third thing. The exceptions to this, textually, are narrow and few, including the power of the legislature to disenfranchise for infamous crimes, which this wasn't.
I have not read the various briefs in this case. I get the impression that section 2 wasn't discussed in detail, because both sides assumed that the infamous crimes clause would control and decide the case. In LWV, the court construed section 2 as not meaning much, for the 1000 people who were disenfranchised in 2008 by voter ID. Here, they don't even bother to mention it.
What will and should Judge Lawrence do next? It's a sticky wicket.
I wonder if anyone has a breakdown of the extent to which minorities are disproportionately affected. In my neighborhood, it is not uncommon for people to be falsely charged with felonies, and to take a misdemeanor plea bargain to make the case go away, if one cannot afford private counsel; minorities are more likely to be poor and less able to afford private counsel.
My guess is that the number of people disenfranchised by being de-registered when jailed, however briefly, for misdemeanor convictions, exceeds the number of in-person fraudulent votes that the voter ID statutes are directed at.
In a Bush v Gore related case, some research has shown that the false purging of people who weren't actually felons was enough to tip Florida and the country, to the GOP column in 2000. It would be interesting to know how many people have been purged in the way this case upholds,and whether that brings some elections within the margin of litigation. Maybe it's in the briefs, maybe it's a case for Mike Pitts or his students.
The prevailing defendant in this case was J Bradley King, one of the head honchos of the Indiana Election Division. We've tangled before,and will again.
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