By: Zach McDonnell
In May 2017, the Alabama Legislature did something unusual, especially for a state in many respects still steeped in the vestiges of the Jim Crow era: it made it easier for people with felony convictions to vote. On May 17, 2017, the Alabama Legislature passed the Definition of Moral Turpitude Act (DMTA); eight days later, Governor Kay Ivey signed the bill into law, which took effect on August 1, 2017. In contrast to Republican politicians such as Governors Terry Branstad of Iowa and Rick Scott of Florida, Alabama Republicans led the re-enfranchisement effort: Representative Mike Jones, a Republican from deeply white district in southern Alabama, introduced the bill, which passed 102-1 in the Alabama House and 29-6 in the Alabama Senate—in both of which Republicans have a supermajority.
The DMTA paved the way for many Alabama felons to reach the franchise by specifying which crimes, exactly, disqualify them voting and how they may earn their rights back, either through a full pardon through the Board of Paroles and Pardons for a few offenses (e.g., murder, rape, child sex offenses) or an application for a Certificate of Eligibility to Register to Vote for most others (including burglary, drug trafficking, and forgery). Specifically, the DMTA lists 46 offenses out of hundreds of Alabama felonies as ones that constitute a “felony of moral turpitude”—an incredibly ambiguous phrase that has confounded legal academics and practitioners alike. Indeed, prior to the passage of the DMTA, the definition of the phrase “moral turpitude” would come down to the judgment of the particular unelected county registrar a felon encountered in that particular Alabama county (not coincidentally, many of Alabama’s counties were subject to § 5 preclearance under the Voting Rights Act prior to the U.S. Supreme Court’s decision in Shelby County v. Holder in 2013). As Alabama Secretary of State John Merrill put it, before the DMTA, one registrar could disenfranchise someone because they considered possession of marijuana to be a crime of moral turpitude, even when another registrar in another county would disenfranchise someone only for distribution of it.
The ambiguity of the phrase “moral turpitude,” and the subsequent county-by-county interpretation of it, is not a mistake in design. At the all-white convention to draft the 1901 Alabama Constitution—a document so antiquated that it still demands school segregation and is possibly the world’s longest constitution still in operation—the phrase was used in Art. VIII, § 182 as a catchall for disenfranchising crimes, whether felony or misdemeanor. In Hunter v. Underwood (U.S. 1985), the U.S. Supreme Court would later unanimously invalidate § 182 as a violation of the Equal Protection Clause due to its discriminatory purpose and effects. Particularly influential on the Court’s decision to invalidate the facially neutral law were convention president John B. Knox’s proclamations that the purpose of the 1901 Constitution was to “establish white supremacy” in Alabama and that the Suffrage Article would have a disproportionate impact on Alabama’s black population. The record in Hunter thus served as a relatively rare example of one containing proof of discriminatory intent sufficient, under the Court’s Village of Arlington Heights test, to trigger an Equal Protection violation.
In 1996, however, the Alabama Legislature reincorporated the vague moral-turpitude language into its Felony Voter Disqualification Act (Ala. Code § 17-3-30.1)—a provision met with little resistance once no longer applicable to misdemeanants. By 2016, the Sentencing Project estimated that there were 286,266 disenfranchised felons in Alabama—over half of whom were African-Americans (who comprise only 25% of the state’s population); the Project estimated that about 7.62% of the state’s voting age population was disenfranchised—including about 15% of its black voting-age population. Despite attempted clarifications of “moral turpitude”—such as a 2005 effort in which the Bob Riley administration listed 480 of the state’s 575 felonies as crimes of moral turpitude while the Administrative Office of the Courts included only 70—the law’s ambiguities continued to lead to arbitrary county-by-county determinations and disparities. A 2016 effort to clarify the law passed the Alabama Senate in March 2016, but the bill died on the last day of the legislative session.
So what accounts for such an extraordinary about-face in May 2017? The answer surely lies, at least in part, on a fairly ambitious lawsuit filed by the Campaign Legal Center (CLC) in the intervening period. Thompson v. Merrill alleged that the pre-DMTA moral-turpitude rule was a violation, inter alia, of the Equal Protection Clause (by virtue of discriminatory intent), the 15th Amendment (by abridging the right to vote based on race), the 24th Amendment (by virtue of being a “poll tax” due to the requirement to pay fines/fees/restitution before reinstatement), and the Due Process Clause of the 14th Amendment (by virtue of being void for vagueness). The DMTA, by finally defining precisely which crimes constitute “felonies of moral turpitude,” may have been passed in May 2017 to at least head off the void-for-vagueness claims, which involve statutory interpretation canons easily applicable to any law, as opposed to the often-scant evidence of discriminatory intent required for Equal Protection and 15th Amendment claims.
Indeed, the Alabama Legislature’s gambit has paid off to some extent; in December 2017, the Middle District of Alabama dismissed the CLC plaintiffs’ five void-for-vagueness claims as moot. The DMTA’s passage and the subsequent re-enfranchisement of many Alabama felons, however, have not caused CLC’s efforts to cease; the December 2017 order found that five of the plaintiffs’ claims—including their Equal Protection and 15th Amendment claims—are actionable, and a trial has been docketed for May 5, 2019. The CLC has also since authored several blog posts about the administrative troubles that have plagued post-DMTA rights restorations. The state’s bungling of the law’s rollout has included a lack of clarity about whether non-DMTA crimes require payment of fines/fees/restitution before a felon’s rights are restored and confusion among registrars over whether they still have discretion in defining “felonies of moral turpitude” (they don’t—that’s the point of the DMTA).
Indeed, Secretary of State Merrill, who supported DMTA-like efforts in 2015 and 2016, has repeatedly downplayed DMTA’s impact, telling HuffPost in June 2017 that he would rather spend state resources on promoting voter ID than on “notifying a small percentage of individuals who at some point in the past may have believed for whatever reason that they were disenfranchised.” After criticism from the CLC and several AL.com stories about the poor implementation of the law, Merrill asserted in October 2017 that his office had begun giving presentations at community events and communicating with registrars about the DMTA via emails and flowcharts.
Due to the state’s loathness to ease and clarify the restoration process, non-profits such as the ACLU, the CLC, and Legal Services Alabama have been left to pick up the slack. Although leading restoration advocate Pastor Kenneth Glasgow of The Ordinary People Society (TOPS) estimated in November 2017 that he had helped to restore and register 5,000 to 10,00 people in the run up to the December 2017 special election for U.S. Senate, it’s unclear how many Alabamians with DMTA convictions have had their rights restored. One thing remains certain, however, in light of voting rights advocates’ efforts to curtail felon disenfranchisement and certain politicians’ desire to keep it: the DMTA is yet another voting-related controversy likely to roil Alabama for some time.