'TO PURIFY THE BALLOT' THE RACIAL HISTORY OF FELON DISENFRANCHISEMENT IN LOUISIANA: Prologue to: VOTE v. Louisiana, 2017-CA-1141 ( La. App. 1 Cir.).

• Author: Reilly, Bruce Scottus

TABLE OF CONTENTS A NOTE FROM THE AUTHOR OVERVIEW I. History of Felon Disenfranchisement A. Pre-Statehood Era B. Statehood of 1812; Initial disenfranchisement C. 1845-1861: Refining White Male Citizenship D. 1861: Secession E. 1868-1879: Antebellum, Reconstruction and the 1970 Amendment F. 1898 Constitutional Convention to "Purify the Ballot." G. 1898-1921 Radical Change H. 1921 to 1974: Entrenchment and Expansion 1. 1921 Louisiana Constitution I. Post-1974: Refining and Defining the Vote 1. 1975 Attorney General Opinion 2. 1976-1977: Legislature Defines Disenfranchisement 3. 1979-1998: Attorney General Advisory Opinions 4. 1998 Constitutional Amendment Regarding Political Candidates 5. 2003 Rosamond v. Alexander II. Brief Legal Analysis of Louisiana's Disenfranchisement Scheme A. Louisiana Disenfranchisement Runs Contrary to the Voting Rights Act CONCLUSION A NOTE FROM THE AUTHOR

During the course of a 12-year incarceration, I listened and responded to my community while studying and applying the law during the peak era of mass incarceration. It became clear that the ever-expanding reach of the criminal justice system needed reform, and history suggests that the only path to sustainable outcomes would be through the civic engagement of directly impacted people. Like everyone else in this incarcerated community seeking a home, education, job, and family, I was (and remain) the primary stakeholder in my rehabilitation, reentry, and reintegration as a solid citizen in a stable society.

During my final years in prison, I prepared a pro se lawsuit challenging the disenfranchisement of people under community supervision in Rhode Island. Upon release in 2005, however, I joined with a group of activists and fellow disenfranchised people to launch a ballot initiative to restore voting rights. We embarked on a transformative outreach campaign, and a directly impacted person actually wrote the new constitutional amendment, and in 2006 I became the first person on parole to register to vote.

During my time in Rhode Island, my civic engagement included key roles in passing significant criminal justice reforms as a core member of Direct Action for Rights and Equality, a grassroots organization in Providence, RI. I wrote several more laws, in addition to the voting rights amendment, and was grateful to engage in the public conversation on criminal justice. Five years after gaining my right to vote, however, I lost it again by enrolling at Tulane Law School and moving to Louisiana. During Orientation Week, in the back of class, I began research on an article about voting rights. I realized Louisiana considers me (and over seventy thousand other people living in the community) "under order of imprisonment," a curious phrase that was coined in 1974.

Felon disenfranchisement in Louisiana did not start with my arrival in 2011, nor the 1974 Louisiana state constitution. This issue pre-dates the Civil War and the past, as we all know, is always prologue.

On April 28th, 1851, nearly six hundred people disembarked from the S.S. John Ganon. Among them was a young Irish Catholic couple, Mary and Patrick, fleeing The Great Hunger, with two toddlers in tow. They left an occupied nation where laws barred them from voting or owning land, and headed to the Land of the Free, or so they were surely told, settled in the Irish Channel of New Orleans, and Patrick found work on the Mississippi River.

When Patrick crossed international waters, from Ireland to Louisiana, he had never known the right to vote, and under the Louisiana state constitution of 1845, title II, section 10, he would be eligible to vote in two years, for the first time, at age twenty-nine, even though many American-born people would never be eligible. The barrier on White foreigners such as Patrick was raised from one year to two, as Louisiana's ruling class feared these new immigrants might change their 'American way of life.' They perhaps had greater fear of Mary, who would die at 88, never having been considered worthy of full citizenship.

Louisiana's constitution of White suffrage provided that four specific crimes could deny Patrick the right to vote: Bribery, Forgery, Perjury, and the political corruption of High Crimes and Misdemeanors. All of these crimes, one might have argued in 1853, have a rational relationship to the stuffing of a paper ballot box. And no matter what desperate acts Patrick may have committed in Ireland to feed his family during a famine, there was no criminal background check following him a world away.

Patrick is, poetically, named after St. Patrick: a teenager who was kidnapped and sold into slavery, where he ultimately found his spiritual calling to help others. He is also my great-great-great grandfather. He died at thirty-seven years old in 1861, the same year Louisiana seceded from the United States and began a long and infamous history of Black voter suppression, which leads us to this article. If not for this research, I would have known nothing about this lineage except for the disappearance of my father after I was born. Like many foster kids who end up in prison, our knowledge is built off hearsay. My father, also named Patrick, was a Navy veteran, an alcoholic, a prisoner, and the son of a murdered father who barely outlived his original American ancestor.

After graduating in 2014 and becoming a board member of Voice of the Experienced (formerly Voice of the Ex-Offender and known as 'VOTE"), I was prepared (again) to file a pro se lawsuit that would impact over seventy thousand people living in the community. In 2015, we reached out to the local legal community on the strength of civil rights icons Norris Henderson (VOTE founder and executive director) and Bill Quigley (professor at Loyola Law School). Nearly thirty lawyers answered the call, and we began by circulating this paper, "To Purify the Ballot."

The New Orleans pro bono Civil Rights community rose to the occasion, conducting research and honing the claims. A smaller legal team penned drafts, and we filed VOTE v. Louisiana in the 19th Judicial District Court in Baton Rouge on July 3rd, 2016.

On May 31, 2018, Gov. John Bel Edwards signed HB 265, a bill that carves out a group of people "under order of imprisonment," and restores the right to vote. We are the people who have not been incarcerated under the current order during the past five years. That would mean all 40,000 people on probation (who have not been incarcerated for a probation violation) and about 3,000 of the 30,000 people on parole (who have been out on parole for over five years). Under the leadership of VOTE's advocacy, and Rep. Patricia Smith, this is indeed a historic victory. VOTE filed the appeal in VOTE v. Louisiana, to the LA Supreme Court, on June 8th, 2018. The struggle continues.

I voted once in my life, in 2010, with a baby in my arms. She got the sticker ("I Voted"), just like she got the law degree four years later. Thank you, Kira Love, for everything.

OVERVIEW

In 1985, the Supreme Court of the United States held that a provision in Alabama's constitution disenfranchising persons convicted of crimes involving "moral turpitude," violated equal protection. (1) This important ruling held that disenfranchisement due to a conviction is not without oversight; even though a statute may on its face be racially neutral, it will be struck down where the original enactment was motivated by a desire to discriminate against Black people, and the provision has had a racially discriminatory impact since its adoption. (2) Not until 2017, however, did Alabama legally define a crime of moral turpitude. (3) Plaintiffs in other states have failed to establish the racially discriminatory motive regarding the challenged language of felon disenfranchisement. (4) Louisiana, however, has a deep history of discriminatory intent behind voting laws, and felon disenfranchisement provisions were expanded when Black citizens gained the right to vote.

Louisiana's original felon disenfranchisement pertained to acts that violate the public trust and are rationally related to elections. The four distinct crimes were forgery, bribery, perjury, or high crimes and misdemeanors- the latter of which is famously associated with impeachment of public officials. This paper traces the origins and changes of Louisiana's disenfranchisement provisions, leading to the conclusion that the modern disenfranchisement of all people who are in prison, on probation, or parole for any felony is a violation of the state and federal constitutions.

To understand the racial element of suffrage laws in Louisiana, it is important to recognize that disenfranchisement prior to 1865 was not racially motivated, as only White people were allowed to vote. Further illustrating the racial animus that existed in crafting election law are the vast number of provisions enacted between Reconstruction and 1974 that have been struck down as racially motivated. Louisiana's last constitutional convention in 1974 made multiple changes, including a provision to specifically restrict the eligibility of criminally convicted political candidates, and a general restoration of rights after completion of a sentence. This current constitution also created new, specific, language regarding voting rights, but left the suspension of voting rights (for people who are "under order of imprisonment") for others to decide, at a later date.

Shortly after the ratification of the 1974 constitution, it became apparent that this new constitutional phrase, "under order of imprisonment," required an interpretation. The interpretation of terms and phrases within a constitution is generally left to the judiciary. With no controversy before the courts, it was incumbent upon the state attorney general to issue an advisory opinion. In this opinion, he found that the phrase barred people on parole, but allowed those on probation the right to vote. (5)

In 1977 the Louisiana legislature...