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Voice of Ex-Offender v. State

Supreme Court of Louisiana

October 29, 2018

VOICE OF THE EX-OFFENDER, KENNETH JOHNSON, BRUCE REILLY, DWIGHT ANDERSON, RANDY TUCKER, BILL VO, HUY TRAN, CHECO YANCY, ASHANTI WITHERSPOON, AND OTHERS SIMILARLY SITUATED
v.
STATE OF LOUISIANA; JOHN BEL EDWARDS, GOVERNOR OF LOUISIANA; AND TOM SCHEDLER, SECRETARY OF STATE OF LOUISIANA

          ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE

          JOHNSON, C.J. would grant the writ application and assigns reasons.

         In this case, the court of appeal upheld Louisiana laws which unconstitutionally disenfranchise its citizens on probation or parole following a felony conviction. Because this court now denies plaintiffs' writ application, that opinion is allowed to stand and these citizens will continue to be excluded from our democratic process.

         Article 1, §10(A) of the 1974 Louisiana Constitution provides for the constitutional right to vote:

Right to Vote. Every citizen of the state, upon reaching eighteen years of age, shall have the right to register and vote, except that this right may be suspended while a person is interdicted and judicially declared mentally incompetent or is under an order of imprisonment for conviction of a felony. (Emphasis added).

         This section was adopted by the Louisiana Constitutional Convention on September 8, 1973, ratified by the people of Louisiana in 1974, and became effective on January 1, 1975. When the 1974 Constitution was adopted, the former provisions of the 1921 Constitution, which permanently deprived persons of the right to vote upon the conviction of a felony, were repealed. Thus, Article 1, §10(A) expanded the constitutional right to vote, and specifically provided only a temporary suspension of that right while a citizen is under an order of imprisonment for conviction of a felony.

         The Legislature thereafter enacted the Election Code, which included statutes that had the effect of limiting the constitutional right to vote. Being challenged by the plaintiffs in this case are La. R.S. 18:2(8) and La. R.S. 18:102(A)(1):

         La. R.S. 18:2. Definitions

(8) 'Under an order of imprisonment' means a sentence of confinement, whether or not suspended, whether or not the subject of the order has been placed on probation, with or without supervision, and whether or not the subject of the order has been paroled.
La. R.S. 18:102. Ineligible persons
A. No person shall be permitted to register or vote who is:
(1) Under an order of imprisonment, as defined in R.S. 18:2(8), for conviction of a felony; ...

         In upholding the constitutionality of these statutes, the court of appeal explained that the constitution specifically limits the fundamental right to vote while convicted felons are under an "order of imprisonment." The court found the meaning of "under an order of imprisonment" is unambiguous and that a convicted felon serving a term of probation or parole is clearly under an order of imprisonment because he is still in a custodial setting and still serving a portion of a criminal sentence. I cannot agree. In my view, incarceration must be distinguished from parole and probation, and a criminal sentence does not equate to an order of imprisonment. In fact, our Code of Criminal Procedure clearly makes distinctions between incarceration on one hand, and parole and probation on the other hand, while the phrase "order of imprisonment" does not appear once. See, e.g., La. R.S. 15:529.1(c). Notably, the phrase "order of imprisonment" was found in Article 822 of our former Code of Practice, which set forth grounds for habeas relief. That article authorized relief when there was a deficient "order of imprisonment." See, e.g., State v. Fenderson, 28 La. Ann. 82, 83-84 (1876). Because habeas relief presupposes incarceration, the phrase "order of imprisonment" has clearly long been equated to incarceration. Additionally, there is support from contemporary commentators that the word choice of "order of imprisonment" in Article 1, §10(A) of our constitution was not intended to exclude parolees and probationers. Professor Lee Hargrave, constitutional scholar and consulting expert during the 1973 Constitutional convention explained in a 1974 law review article:

The word choice, 'under an order of imprisonment,' may seem unusual; 'imprisoned' would be simpler and more direct. The reason for the choice was to overcome an objection that an escapee would not be 'imprisoned' and thus not within the exception. That choice of words does not prevent a person on ...

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