Deciphering Felony Disenfranchisement in Post-Realignment California

In August of 2015, California restored the voting rights to approximately 60,000 former felony offenders who had been improperly disenfranchised as a result of a glitch in the political process. In the whirlwind of California’s recent prison reform acts, these citizens had been inappropriately classified as ineligible to vote in violation of California’s Constitution and election laws. Although the case had already been decided in the voters’ favor by a trial court, it was not until California’s current Secretary of State, Alex Padilla, decided this summer to drop the appeal that these former felony offenders could feel safe registering to vote. But how did such a large number of potential voters end improperly disenfranchised in the first place?

To say that California’s criminal justice system has gone through a few changes in the last few years would be an understatement. As the state prisons saw horrific levels of overcrowding, the state was forced to make drastic changes in sentencing laws. One of the earliest reforms in this series was the introduction of The Realignment Act (“Realignment”) in 2011. The primary focus of this act was to channel low-level and low-risk offenders away from state prisons and into county jails or community programs.

One significant change under Realignment was the introduction of Post-Release Community Supervision (PRCS), which replaced parole for low-level offenders with a period of supervision under a county agency (probation agency). A major way that PRCS differs from parole is the consequences that result from a violation of the conditions. A person on parole is still under the state prison system’s authority, and if that person violates parole he can be immediately returned to prison. A person on PRCS is no longer under the state prison’s authority, and if he violates conditions of PRCS, he will be taken to a California court to determine what the result should be. The intent was to ease the burden on the state prison system and to encourage the successful, productive re-entry of formerly incarcerated individuals into the community.

What PRCS legislation did not directly cover was what the voting status would be of those in the programs. Art. II, Sec. 4  of the California Constitution states, “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.” The law allows formerly incarcerated citizens to register to vote as long as they are not on parole. So the pertinent question was, does PRCS count as parole (which it replaces) or probation (as it is run by county probation offices)?

California’s Secretary of State at the time PRCS was created, Debra Bowen, issued a memorandum declaring that those subject to PRCS would be ineligible to vote. Bowen’s theory was that since PRCS was a replacement for parole it should have the same consequences. Civil rights advocates, however, had a different interpretation. The American Civil Liberties Union of California, the Lawyers’ Committee for Civil Rights, and Legal Services for Prisoners with Children filed suit against Bowen on behalf of disenfranchised voters in February of 2014 (Scott v. Bowen). The suit claimed that Plaintiffs’ state constitutional rights were being violated because they were not “imprisoned or on parole.” Unlike a person on parole, those subject to PRCS are no longer under the control of the prison system, and they should be encouraged to rejoin the community in a meaningful way.

The court sided with the plaintiffs and ordered the memorandum to be withdrawn. The judge also ordered that any materials made available about post-incarceration voting eligibility be updated to reflect the rights of citizens subject to PRCS. The government originally decided to appeal the decision, but Padilla’s announcement from this August reveals that the state is settling the suit and pushing to make voting information available at county probation offices.

California’s story is an important one because it highlights the importance of a citizen’s right to vote as an indication of community involvement. If California’s new Secretary of State had not decided to drop the appeal, how long would these people be denied their voice? If reintegration is going to occur in any sort of meaningful way then people must be given the right to be heard. In this country people are primarily heard through the political process of the vote. A mistake in felony voting law interpretations is particularly egregious because those most affected by it are those with the least power to change it. The trial court in Scott v. Bowen interpreted the California law narrowly; the law only applies to people who are incarcerated or on parole. If California was going to make an alternative to parole that aimed at easing reintegration, then restoring the vote was a critical part of that alternative.

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