Alaska's Constitution and Felony Disenfranchisement: a Historical and Legal Analysis

• Publication year: 2019

§ 36 Alaska L. Rev. 133. ALASKA'S CONSTITUTION AND FELONY DISENFRANCHISEMENT: A HISTORICAL AND LEGAL ANALYSIS

Alaska Law Review
Volume 36, No. 2, December 2019
Cited: 36 Alaska L. Rev. 133

ALASKA'S CONSTITUTION AND FELONY DISENFRANCHISEMENT: A HISTORICAL AND LEGAL ANALYSIS

Jc Croft ^[*]

ABSTRACT

A disproportionately high segment of Alaska's incarcerated population is non-white, placing many of these citizens under the purview of the state's felony disenfranchisement statute. This Article argues that the Alaska legislature has impermissibly broadened the scope of the felony disenfranchisement provision over time. This provision, expressly included in the Alaska Constitution and specifically debated during the convention, permits the revocation of voting rights for a person convicted of a felony involving "moral turpitude." Rather than leave the definition of this provision to the courts, the Alaska legislature has toyed repeatedly with identifying the crimes that involve moral turpitude. Not only is the current statute impermissibly broad but its existence exceeds the legislature's authority and stands in contravention of several provisions in the state constitution. Combined, these realities warrant a challenge to the provision's validity under state law.

I. INTRODUCTION

Felony disenfranchisement, or taking the right to vote away from convicted felons, is a common practice in the United States, to varying degrees. ^[1] In Alaska, the practice likely has racially imbalanced impact, as evidenced by available, albeit clumsy, demographic statistics and incarceration rates. ^[2] According to the United States Census Bureau, in 2019 American Indians and Alaska Natives make up 15.4% of the state's population, while Black Americans make up 3.8%. ^[3] Whites made up 65.3% of the state population. ^[4] In terms of the state's 2018 prison population, Alaska Natives made up 37.32% of the incarcerated population, while Black Americans made up 10.37%. ^[5] Comparatively, whites made up 43.10% of the incarcerated population. ^[6] It stands to reason that the state's felony disenfranchisement laws might affect these minority groups more significantly than they affect white Alaskans. However, if one wishes to challenge these laws, there are limited means to do so.

In 1974, the United States Supreme Court held felony disenfranchisement is constitutional, and that decision still stands. ^[7] While at least one scholar proposed that Alaska's laws could be a violation of the Voting Rights Act of 1965, developments in the Ninth Circuit's jurisprudence nullifies this argument. ^[8] It is likely felony disenfranchisement will continue to be allowed under federal law for the foreseeable future.

Given the concerning impact of Alaska's felony disenfranchisement laws and their legality under federal law, there appears to be only one source of law remaining in which they might be challenged: the state constitution. In other states, voting rights have been restored at the ballot box, by the executive branch, or by the legislature. ^[9] But the Alaska legislature has been part of the problem, as discussed below, and there is currently no indication that the governor or voters will take any action in response. Frustrated activists in Minnesota confronted a similar situation, and are turning to the judiciary and the state constitution after inaction by the legislature. ^[10]

It is that method that this Article explores: the constitutionality of Alaska's system of felony disenfranchisement under the state constitution. This analysis can serve as a model for challenging the laws in the future and a method others could use to challenge felony disenfranchisement laws in other states.

At the outset, it is necessary to note that felony disenfranchisement is codified in the Alaska Constitution, although with qualifying language. ^[11] In order to gain an understanding of the current state of the system, we must first examine the history of felony disenfranchisement in the last frontier. Part II of this Article examines, in detail, how felony disenfranchisement came into being in Alaska and how it evolved to reach its modern form. Overall, the history shows growth in the breadth of the laws from statehood to today.

Next, Part III of this Article uses the evidence from the historical record, combined with additional sources, in order to advance three arguments that Alaska's system of felony disenfranchisement is unconstitutional under the state constitution. First, I argue that the legislature's statutory definition of the term "felony involving moral turpitude," which appears in the state constitution, exceeds the legislative body's powers. ^[12] Second, I argue that the legislative definition of "felony involving moral turpitude," regardless of the legislature's power to define the phrase, goes beyond the scope of the technical meaning and intent behind the qualifying phrase "moral turpitude." Third, I contend that the state's current structure of laws is inconsistent with two other provisions of the state constitution: state equal protections and the constitutional purpose of the state's criminal administration. ^[13] While these arguments are not an exhaustive catalog of all possible challenges under state law, they seem to be the strongest arguments in light of the historical record and Alaska Supreme Court precedent. The ultimate hope behind advancing these arguments is that Alaska's laws will be challenged in state court in the near future.

II. HISTORY AND EVOLUTION OF FELONY DISENFRANCHISEMENT IN ALASKA

Since statehood, Alaska has established a mechanism for felony disenfranchisement. ^[14] As this Article will demonstrate, the scope of the practice in Alaska largely hinges upon the specialized definition of the phrase "moral turpitude." ^[15] This phrase was discussed and ultimately adopted by the state constitutional convention to modify what felonies merit disenfranchisement (although it was not adopted by the convention, despite being proposed, to modify recall of public officials). The state legislature has since defined and expanded the phrase. Overall, this historical narrative demonstrates a general expansion of felony disenfranchisement in Alaska from the early days of statehood to modern times. This historical section of the Article proceeds in two parts. First, I begin with an investigation of the concept at the Alaska Constitutional Convention. Second, I consider the Alaska legislature's interaction with the practice through the adoption and expansion of two key statutes.

A. State Constitutional Convention

Felony disenfranchisement is codified in the Alaska Constitution. ^[16] It is paired with the loss of voting rights for those of "unsound mind" in article V, section 2. ^[17] The full text reads, "[n]o person may vote who has been convicted of a felony involving moral turpitude unless his civil rights have been restored. No person may vote who has been judicially determined of unsound mind unless the disability has been removed." ^[18] This language was adopted at the Alaska Constitutional Convention. ^[19]

The framers used similar, though slightly different language from what was originally proposed by the Report of the Committee on Suffrage, Elections, and Apportionment. ^[20]

The chairman of the Committee on Suffrage, Elections, and Apportionment was delegate John S. Hellenthal, an Alaska-born lawyer from Anchorage. ^[21] In his cover letter to the Committee Report, he described the felony disenfranchisement provision as a measure that "disenfranchises those convicted of felonies involving moral turpitude, leaving the matter of restoration of civil rights to the responsible agencies of government." ^[22] The original text submitted by the Committee read, "[n]o person judicially determined to be of unsound mind and no person convicted of a felony involving moral turpitude, unless pardoned and restored to his civil rights, shall be qualified to vote in any State or local election." ^[23] This was not the language adopted by the convention.

When the full convention discussed the provision, debate began by focusing upon the loss of voting rights for those of unsound mind. The convention turned to the felony disenfranchisement provision after Mildred R. Hermann, a delegate and lawyer from Juneau, proposed an amendment and asked unanimous consent. ^[24] Her amendment sought to delete the phrase "involving moral turpitude." ^[25] Delegate George Sundborg, a newspaperman from Juneau, objected. ^[26] Mrs. Hermann responded by moving for the amendment, which was seconded by delegate Yule Kilcher, a farmer and journalist from Homer. ^[27] This triggered a discussion between the delegates over the amendment and the meaning of using "involving moral turpitude" to modify felony disenfranchisement.

At the prompting of Mr. Sundborg, Mrs. Hermann provided the reason for her amendment, stating, "I don't think there is such a thing as a felony that does not involve moral turpitude, so I don't see the necessity of the three words." ^[28] Mr. Hellenthal argued, "not all felonies involve moral turpitude," and pointed out the phrase was a commonly used qualification. ^[29] He then elaborated on the phrase's adoption. He noted that other language was considered but the Committee eventually "adopted this language on the advice of the [unnamed] adviser who agreed with that contention and who felt that we should not require all persons convicted of...