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Misdemeanant challenges voting lockout

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When a former town council member in northern Indiana was sentenced to county jail for two months on a misdemeanor battery conviction, he didn’t realize that experience would take away his right to vote.

But David Snyder’s misdemeanor conviction and incarceration led to the state striking his name from the voting rolls, and the South Bend man believes he was wrongly denied one of his fundamental constitutional rights.

What began as a class-action lawsuit in federal court has now been forwarded to the Indiana Supreme Court to review, asking whether the state Constitution’s use of the phrase “infamous crime” applies to criminal acts by any person convicted and put behind bars or if it only applies to felonies and serious offenses.
 

bill groth Groth

“This is a very interesting case historically,” said Indianapolis attorney Bill Groth, who represents Snyder. “One has to go back to these very old cases and decisions, and even the founding of the state Constitution and what our country’s founders envisioned for the federal Constitution, and parse the language of these ancient opinions and statutes. This case raises very important constitutional issues about what a citizen can be deprived of for certain crimes.”

In August, Snyder filed a suit in the Southern District of Indiana challenging the state statute and agency policies allowing for misdemeanants to be removed from the voting rolls once they are incarcerated. Snyder charges that state officials wrongly removed him from the statewide voter registration list because of a 2008 conviction for Class A misdemeanor battery that led to his incarceration between March and May 2009. He received a letter from St. Joseph County Clerk Rita Glenn that stated his voter registration was being cancelled immediately pursuant to Indiana Code 3-7-46. The notice also said that I.C. 3-7-13-4(a) and 3-7-46-1 and -2 allow for his removal from the statewide voter registry, along with the Indiana Election Division’s standard operating procedure VRG 12.1 that states anyone “imprisoned following a conviction of a crime is disfranchised during the person’s imprisonment.”

He didn’t see the notice immediately and as a result wasn’t able to vote when he showed up at the polls during the November 2009 election. Wanting to keep his standing so that any legal challenge wouldn’t be struck down as moot, Snyder didn’t re-register in order to vote in the May 2010 primary. He filed a written complaint with the Indiana Election Division and the county, exhausting what the lawsuit says is the available administrative grievance process.

That led to the federal class action suit, although early this year after being certified to the state justices both parties agreed that class status wouldn’t be pursued, Groth said. As a result, the number of individuals who could be impacted by this state statute and caselaw interpretation, as followed by the state for at least 15 years, has not been determined.

“This is narrowly focused and my client is standing on principle, and I’m glad he is willing to do that,” Groth said. “He never should have had to re-register in the first place. If he does, that would basically be conceding that the state was right in what it did.”

The case now before the state justices is David R. Snyder v. J. Bradley King, et al., No. 94S00-1101-CQ-50. The federal case is on hold, but has a similar caption that’s docketed 1:10-CV-1019.

What happened to Snyder dates back at least to a statute passed by the Indiana General Assembly in 1995, which strips voting rights from people who commit “crimes,” but doesn’t distinguish between felonies and misdemeanors.

Most states prohibit convicted felons from voting for some period of time, but only Indiana and nine other states – along with Washington, D.C. – bar some or all people convicted of misdemeanors from voting, according to April 2010 research at the non-profit http://felonvoting.procon.org. The remaining 40 states allow individuals to vote by absentee ballot while behind bars, the data shows.

States such as Idaho ban only “aggravated” misdemeanants from voting, while West Virginia bans voting for those convicted of election-related misdemeanors. Kentucky and Missouri additionally require an executive pardon before allowing people convicted of certain misdemeanors, such as “high misdemeanors” in Kentucky and “elections-related misdemeanors” in Missouri from ever voting again.

As a result of that patchwork of state laws, the issue of voting rights for convicts has been a national concern that many states have addressed through the years. Organizations like the Brennan Center for Justice have pushed for voting rights restoration nationwide, and some state legislatures have made reforms in recent years. Some have addressed the ability of a convict to vote, while others have made changes requiring judges to inform people of how convictions might impact their voting rights.

Applying some of those trends to Indiana, Groth said this Snyder case could present similar issues that might be of more interest for the practicing criminal bar and judges throughout the state. He said that some judges may not be advising misdemeanants about their right to appeal convictions, and this case could present an opportunity to alert them of that possibility; similar to how other states have taken action requiring judges or state officials to make convicts aware of these rights or what could happen to privileges such as voting.

That hasn’t surfaced in the briefing at this stage, Groth said, and neither have other issues such as whether a voting right removal might be considered “punitive” on top of a criminal sentence being imposed. For now, the case is focused on the narrow constitutional question, he said.

While Article 2, §8 of the Indiana Constitution permits the state to restrict voting of those convicted and imprisoned for any “infamous crime,” the suit explains that the Indiana appellate courts have defined that to be a felony. The Indiana Supreme Court ruled back in 1897 that felonies meet that definition, and Snyder’s attorney argues that a 1923 case further defined that crimes carrying a sentence of less than a specified term – such as misdemeanors – are not “infamous crimes.” The Indiana Rules of Evidence are also based on common law and also list crimes like murder, treason, rape, and robbery as bases for impeaching a witness, Groth argues. The Indiana Court of Appeals has more recently in the 1990s followed that precedent from the past century, holding what Groth contends to be findings that felonies such as making a pipe bomb or those where someone is imprisoned for at least a year fit the definition.

But in its brief filed with the state court March 8, the Indiana attorney general’s office made the opposite contention that caselaw supports misdemeanors being banned from voting while incarcerated. Citing a 1901 case, the state contends that the constitutional framers intended for the state Legislature to determine what “infamous crime” means and that a loss of certain civil rights, such as voting, would make a crime “infamous.” The Legislature isn’t limited by that phrase in what voting rights can be stripped, the AG’s brief says.

“It is obviously true that a person who is incarcerated in any facility, including a county jail, has lost his civil privileges and thus has committed an infamous crime,” the brief says. “Both history and case law show that the 1850 Convention delegates intended to continue permitting the legislature to disenfranchise, at the very least, all incarcerated persons.”

Briefing remains pending in this case and responses to those initial briefs are due by the end of March, with arguments set before the justices on April 21.•

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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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