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
STATE OF LOUISIANA; JOHN BEL EDWARDS, GOVERNOR OF LOUISIANA; AND TOM SCHEDLER, SECRETARY OF STATE OF LOUISIANA
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
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.
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
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repealed.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
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.
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; ...
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 ...