Approved in 1901, the Alabama Constitution disqualifies from voting any citizen convicted of a “crime involving moral turpitude.” That may at first seem racially neutral, but the document as well as the moral turpitude provision were designed with clear racist intent. The drafters intentionally sought to subvert the 14th and 15th Amendments’ protection against racial discrimination in voting by using the moral turpitude provision, in conjunction with discriminatory criminal justice enforcement, to target Alabama’s Black citizens.
As the Supreme Court held in 1985, Alabama’s moral turpitude provision was enacted out of racial animus. The court explained, “the delegates to the all-white [1901] convention were not secretive about their purpose,” which was, as the “president of the convention stated in his opening address . . . ‘to establish white supremacy in this State.’”
The stench of that discriminatory purpose still lingers today.
Under the moral turpitude provision, Alabama currently disenfranchises over 250,000 otherwise qualified citizens — nearly 8 percent of the population — because of a prior conviction. Because of Alabama’s disproportionately high rate of arrest and prosecution of its Black citizens, that includes over 15 percent of the Black voting age population.
But yesterday, nearly 120 years later, Alabama took a small step towards reform.
Last night, Gov. Kay Ivey signed HB282, restoring voting rights to thousands of Alabamans with a prior felony conviction. The law simply establishes a comprehensive list of felonies involving “moral turpitude,” so that the term cannot be misapplied or interpreted overly broadly. The new law, at minimum, gives voters appropriate notice of which convictions will disqualify them from voting — clarity Alabamians never had before.
The list of disqualifying crimes includes serious, violent offenses, like murder, rape, and treason as well as crimes related to dishonesty, like securities fraud and forgery. Critically, it does not include drug possession offenses.
Until yesterday, determining which felonies disqualify a citizen from voting was based on amorphous interpretations of “moral turpitude” that varied by county. There was no definitive list of offenses. Instead, there was a 2005 state attorney general opinion setting out categories of crimes determined by the Alabama courts to involve, or not involve, moral turpitude. It included lower level offenses, like possession of marijuana for resale, and crimes that were difficult to identify without a course in criminal law, like all offenses that “have fraud as an element.” The opinion recognized that the attorney general could not “provide an exhaustive list of every felony involving moral turpitude,” which leads you to wonder how the average citizen could have possibly figured out whether their conviction affected their voting rights.
There was also a conflicting 2008 Administrative Office of Courts list, which set out different disenfranchising offenses. For example, the attorney general’s list included income tax evasion, which the AOC’s list did not, and the attorney general’s list included all property theft convictions, while the AOC list excluded lower level property theft. Based on these two non-authoritative statements, county election boards were left to determine independently who could and could not vote.
The system was a mess.
Before the Alabama Legislature passed and Gov. Ivey signed this law, Alabamans lacked clear information not only on who would be disenfranchised, but how they could apply to restore their rights. Take Pastor Kenneth Glasgow, a community leader, founder of The Ordinary People Society, and formerly incarcerated citizen who spent three years fighting through the pardon process to have his voting rights restored. Years later, he learned that the state had made a mistake. He should never have been disenfranchised in the first place because his drug charge was not a “moral turpitude” offense. Pastor Glasgow was, with Will Harrell from the ACLU’s Smart Justice Campaign, one of the leaders of the movement to pass the new law.
We have seen the same problem in other states: Confusion surrounding the rules for getting voting rights restored prevents voters from seeking restoration and unnecessarily extends their disenfranchisement.
In Iowa, for example, we represented Kelli Griffin who was disenfranchised due to a drug conviction. When she registered to vote because she believed that her rights had been restored upon completion of her probation sentence, as was the rule under the prior governor, she was arrested and charged with voter fraud. She was later acquitted.
In Virginia, we represented citizens with prior convictions as a friend of the court opposing state legislators’ challenge to Gov. Terry McAuliffe’s power to grant blanket clemency. Virginia’s previous administrative process for applying for clemency was all but impossible to navigate, and the practical barriers kept restoration out of reach to many returning citizens. Now the process is straightforward and accessible.
Similarly, in Florida, citizens’ eligibility to apply for restoration ebbs and flows with each new governor, leaving Floridians susceptible to political manipulation. Gov. Scott, for example, severely restricted eligibility for citizens to apply for rights restoration by amending the clemency board rules in 2011. Restorations, as a result, have slowed to a trickle.
With varied disenfranchisement rules from state to state and confusion within states on the rules and procedures for getting voting rights restored, people with a felony conviction have a disincentive, or may be too intimidated, to assert their right to vote. Alabama took a first step to correcting that confusion yesterday.
Imposing “civil death” on Alabamans with a prior conviction and denying their equal citizenship comes at great cost to their communities and to the overall health of the democratic process. As we have seen in other states, we all benefit from citizens with a prior conviction participating in the democratic process.
Last month in Philadelphia, the ACLU undertook a turnout drive, led by people with a prior felony conviction, to get out the vote in a district attorney primary. The elected prosecutor, who will make charging decisions in criminal prosecutions, now will be heavily influenced by the activism and input of citizens who have been most deeply affected by the criminal justice system.
In Florida, which permanently excludes citizens from voting upon conviction for a felony, the ACLU supports Floridians for a Fair Democracy’s proposed constitutional amendment to restore voting rights upon completion of sentence for most offenses. The nearly 1.6 million citizens who could rejoin the democratic process if the amendment is passed will surely improve future elections.
Alabama’s new law cannot wipe clean the state’s discriminatory constitutional provision, but this victory moves the state slightly closer towards our goal of full democratic inclusion.
Orginially published on the ACLU Speak Freely blog.
