Opposition Brief — Johnson v. Haslam

upreme Court of the Gnited States

ORS NO] CONFLICT WITH PRI

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28 U.S.C. §136'

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Tenn. Code Ann. § 36-5-101

enn. Code Ann

enn. Code Ann. § 40-29-909(]

LY

1

OPINIONS BELOW

The October 28, 2010, opinion of the United States

Court of Appeals for the Sixth Circuit, which affirmed

the district court judgment dismissing the amended

complaint, is reported at 624 F.3d 742 (6th Cir. 2010).

(Pet. App. la-88a). The order denying rehearing and

rehearing en banc is also reported at 624 F.3d 742.

(Pet. App. 89a-90a). The memorandum opinion of the

district court dismissing the amended complaint is

reported at 579 F. Supp. 2d 1044 (M.D. Tenn. 2008).

(Pet. App. 9la-126a).

JURISDICTION

Petitioners invoke this Court’s jurisdiction under

28 U.S.C. §1254.

STATEMENT OF THE CASE

The State of Tennessee disenfranchises convicted

felons but provides a statutory procedure for regaining

the franchise upon completion of their sentences and

satisfaction of certain conditions. 'Tennessee’s re-

enfranchisement statute provides that a convicted

felon may apply for a voter registration card and seek

to regain the right of suffrage upon:

(1) Receiving a pardon, except where the pardon

contains special conditions pertaining to the

right of suffrage;

(2) The discharge from custody by reason of

service or expiration of the maximum

sentence imposed by the court for the

infamous crime; or

(3) Being granted a certificate of final discharge

from supervision by the board of probation

and parole pursuant to § 40-28-105, or any

equivalent discharge by another state, the

federal government, or county correction

authority.

Tenn. Code Ann. § 40-29-202(a) (2006). This statute

carves out two exceptions to re-enfranchisement

eligibility:

(b) ...a person shall not be eligible to apply for

a voter registration card and have the right of

suffrage restored, unless the person has paid all

restitution to the victim or victims of the offense

ordered by the court as part of the sentencel,

and]

(c) ...a person shall not be eligible to apply for

a voter registration card and have the right of

suffrage restored, unless the person is current

in all child support obligations.

Tenn. Code Ann. § 40-29-202(b) — (c).

Petitioner Johnson was convicted of wire fraud in

1999, and the court sentenced him to a term of

imprisonment and ordered him to pay $40,000 in

restitution. Petitioner Johnson has completed his

prison term but remains unable to satisfy the

restitution order. Additionally, petitioner Johnson

owes a significant amount in court-ordered child

support payments. Petitioners Harris and Roberts

both have multiple felony convictions. While they

have completed their prison terms for these

convictions, they both owed child support obligations

3

($2,500 and $7,000) at the time they filed suit.

Petitioner Harris has since paid his overdue child

support and thus faces no impediment to applying for

re-enfranchisement; however, he continues to press a

claim for nominal damages on account of any past

constitutional harm. (Pet. App. 4a).

On February 25, 2008, petitioners filed suit in the

Middle District of ‘Tennessee, challenging the

constitutionality of the re-enfranchisement statute’s

restitution and child support provisions, asserting that

these provisions violate the Fourteenth Amendment’s

Equal Protection Clause, the Twenty-Fourth

Amendment, the Privileges and Immunities Clauses of

the federal and state constitutions, and the Ex Post

Facto Clauses of the federal and state constitutions.

On August 1, 2008, the state defendants filed a motion

for judgment on the pleadings as to all of the

petitioners’ claims pursuant to Fed. R. Civ. P. 12(c).

The petitioners filed a cross-motion under Fed. R. Civ.

P. 12(c) or, in the alternative, a motion for partial

summary judgment pursuant to Fed. R. Civ. P. 56(a).

A hearing was held on the parties’ respective motions

on September 3, 2008. On September 28, 2008, the

district court issued a memorandum opinion finding in

favor of the state defendants on all of the

constitutional challenges and dismissed petitioners’

amended complaint. (Pet. App. 9la-126a).

A divided, three-judge panel of the Sixth Circuit

affirmed the judgment. (Pet. App. la-88a). The

majority first recognized that a_ state may

constitutionally disenfranchise convicted felons and

that the right of felons to vote is not fundamental.

Accordingly, it found that because Tennessee’s re-

enfranchisement law neither implicates a fundamental

4

right nor targets a suspect class, the district court

properly applied rational basis review to the

petitioners’ equal protection challenge. (Pet. App. 7a-

8a). The court then found that “the state’s interests of

encouraging payment of child support and compliance

with court orders, and requiring felons to complete

their entire sentences, including paying victim

restitution, supply a rational basis for the challenged

statutory provisions sufficient to pass constitutional!

muster.” (Pet. App. 9a).

With respect to petitioners’ Twenty-Fourth

Amendment claims, the majority held that, “lals

convicted felons constitutionally stripped of their

voting rights by virtue of their convictions, Plaintiffs

possess no right to vote and, consequently, have no

cognizable Twenty-Fourth Amendment claim.” (Pet.

App. 18a). The court further held that Tennessee’s re-

enfranchisement law does not condition the right to

vote on payment of restitution or child support, but

instead conditions the restoration of a felon’s right to

vote on such payment, which is not addressed by the

Twenty-Fourth Amendment. (Pet. App. 18a). Finally,

the court held that even if the Twenty-Fourth

Amendment applied, restitution and child support

represent legal financial obligations incurred by the

petitioners themselves and, therefore, fail to qualify as

the sort of taxes the Amendment secks to prohibit.

(Pet. App. 19a).

The court also rejected petitioner’s ex post facto

. = | + - 7 | .

claim under the Tennessee Constitution,’ finding no

' Although petitioners had challenged the statute under the Ex

Post Facto Clauses of both the United States and Tennessee

evidence that the iegislature enacted the challenged

provisions with punitive intentions or that’ the

statute’s purpose or effect had negated the

legislature’s non-punitive intentions. The court

further found that the restitution and child-support

payment provisions bore a rational connection to

legitimate non-punitive interests of the state and are

not excessive with regard to those purposes. (Pet. App.

22a-23a).

On November 10, 2010, petitioners filed a petition

for rehearing en banc with the Sixth Court, which was

denied on December 17, 2010. (Pet. App. 89a-90a).

Petitioners now seek this Court’s review.

REASONS FOR DENYING REVIEW

Petitioners present three questions on which they

seek review by this Court. The first is whether

Tennessce’s felon re-enfranchisement statutes may

condition the restoration of a felon’s voting rights

upon: (a) the payment of victim’s restitution and child

support obligations regardless of the felon’s ability to

satisfy those debts’; and (b) the payment of child

y

Constitutions, they “appealled] only the rejection of their

‘Tennessee Constitutional Claim.” (Pet. App. 24a)

* The opinion of the District Court. that disposed of this matter

was the result of Respondents’ motion pursuant to Rule 12(c) of

the Federal Rules of Civil Procedure. As a result, the District

Court was limited to consideration of the Amended Complaint

See (Pet. App. 96a) (stating, “the only pleading the Court can

consider [in ruling on Respondents’ motion] is the Amended

Complaint.”). Nowhere in the Amended Complaint do the

petitioners assert that any one of them is indigent or unable to

pay their court-ordered restitution or child support obligations

that enactment of Tennessee’s felon voter re-

enfranchisement statutes did not violate the Ex Post

Facto Clause of the Tennessee Constitution. First, to

the extent petitioners are actually challenging the

merits of the ruling of the court below, the issue is one

purely of state law, not justifying intervention by this

Court. Second, to the extent that the question

presented is actually whether the court below exceeded

its authority, it certainly did not, as the federal court

had supplemental jurisdiction to entertain purely state

law claims that were part of a matter that presented

primarily federal questions. Third, petitioners do not

challenge the legal standard the court below applied in

its Ex Post Facto analysis, as it was the correct

standard, again making it the sort of question not

typically entertained by this Court. Fourth, and

finally, the court below was correct in its application of

the facts to the legal standard.

I. THE DECISION OF THE SIXTH CIRCUIT

DOES NOT CONFLICT WITH PRIOR

DECISIONS OF THIS COURT AND PRIOR

DECISIONS OF OTHER LOWER COURTS IN

HOLDING THAT CONDITIONS TO FELON

RE-ENFRANCHISEMENT MUST ONLY BE

RATIONALLY RELATED TO A UEGITIMATE

STATE INTEREST.

Petitioners’ claims throughout the litigation have

been falsely premised upon the idea that convicted

felons, constitutionally stripped of their right to vote,

have a fundamental mght to re-enfranchisement, and

that any conditions on re-enfranchisement must meet

the strict requirements of the cases striking down

preconditions to voting for non-felons. In furtherance

of that false premise, petitioners mistakenly cite to

: % t £1a ( Li rida <cilii¢ : ALL!

Vote, and Any Conditions On Felon R

ifranchisement Are Subject to the

, ;

tandara AS

isions of This Court ar

Rational Basis S

; Peg

ourts Analyzing Stat

onditions On Non-Felons’ Fundament

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In Shepherd v. Trevino, the Court of Appeals for the

Fifth Circuit examined Texas statutes that led to the

following system: (1) individuals convicted of a felony

In any court (state or federal) are automatically

disenfranchised; (2) individuals convicted of a felony in

Texas state courts and placed on probation may have

their conviction set aside and be re-enfranchised by the

court by which they were convicted, or may be re

enfranchised by gubernatorial pardon; and (3) an

individual convicted of a felony in federal court may

only be re-enfranchised after presidential pardon. 575

F.2d 1110, 1112 (5th Cir. 1978). When determining

what level of scrutiny to apply to this scenario, in

which felons were treated differently based upon the

court of their conviction, the Fifth Circuit held: “{W]«

conclude that selective disenfranchisement' or

reenfranchisement of convicted felons must pass the

standard level of scrutiny applied to state laws

allegedly violating the equal protection clause. Such

laws must bear a rational relationship to the achieving

of a legitimate state interest.” 7d. at 1114-15

In Owens v. Barnes, the Court of Appeals for the

Third Circuit examined a Pennsylvania statute that

disenfranchised incarcerated felons but not

unincarcerated felons. 711 F.2d 25, 26 (3d Cir. 1983)

The Third Circuit held that because felons did not

have a fundamental right to vote, “the standard of

equal protection scrutiny to be applied when the state

makes classifications related to disenfranchisement of

felons is the traditional rational basis standard.” Jd

at 2 i

Each of the courts of appeal that have considered

what level of scrutiny to apply to felon re

,

enfranchisement laws and disenfranchisement laws

has held that the rational basis standard should apply,

as felons do not have a right to vote. Asa result, the

Sixth Circuit’s decision here comports with the rulings

of its sister circuits and the rulings of this Court that

led to those decisions

Accordingly, petitioners’ reliance on Harper ¢

Virginia State Bd. of Elections, 383 U.S. 663 (1966)

(striking down a Virginia poll tax applicable to non-

felons), Lubin v. Parish, 415 U.S. 709 (1974) (striking

down a Florida statute requiring payment of a fee by

minority parties for ballot access), and Dunn ov.

Blumstein, 405 U.S. 330 (1972) (striking down

durational residence laws for non-felon voters), is

misplaced;* the Sixth Circuit’s decision here is not in

|

‘Petitioners confuse several issues related tothe jurisprudence on

voting rights. Petitioners attempt to conflate the cases striking

down wealth requirements for non-felons secking to exercise the

right to vote with the matter here felons seeking re

enfranchisement

In the cases striking down wealth classifications for non

felons, this Court has rehed upon the fact that the nght to vote is

a fundamental night. The Court then goes on to strike down

wealth requirements as inadequate to overcome the strict scrutiny

analysis. See Harper, 383 U.S. 663. The strict scrutiny analysis

was not invoked due to the wealth classification but, rather, due

to the fundamental mght to vote

lHiere, felons have no fundamental right to vote. As a result,

each of the strict scrutiny cases petitioners cite is irrelevant in

this action. This distinction is discussed in detail by the Sixth

Circuit in its discussion of the misapplication of the law by the

dissenting judge. (Pet. App. 9a-17a)

Petitioners’ numerous arguments related to the need for an

“indigency exception” are similarly misplaced. In each of the cases

petitioners cite, a fundamental right was at issue (generally the

right to personal liberty) and thus an indigency exception was

required. See Griffin v. Ilitnots, 351 U.S. 12 (1956) (finding

is

conflict with any of those decisions.

B. The Sixth Circuit Correctly Stated and

Applied the Rational Basis Test, As

Tennessee Does Have a Legitimate Interest

in Protecting the Ballot Box from Felons

Who Have Yet to Complete the Court-

Imposed Punishment and/or Continue to

Violate Valid Court Orders.

As the Sixth Circuit stated, “to survive rational

basis scrutiny, the statute need only be ‘rationally

related to legitimate government interests,’ and ‘must

be upheld against equal protection challenge if there is

any reasonably conceivable state of facts that could

provide a rational basis for the classification|.]” (Pet.

App. 8a) (quoting Doe v. Mich. Dept of State Police,

490 F.3d 491, 501 (6th Cir. 2007); and FCC v. Beach

Comme'ns, Inc., 508 U.S. 307, 313 (1993)).

Furthermore, “every reasonable construction must be

resorted to, in order to save a_e statute from

unconstitutionality.” Ud.) (quoting Edward J.

DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr.

Trades Council, 485 U.S. 568, 575 (1988)). Finally, the

Sixth Circuit, quoting this Court's decision in Vance v

Bradley, 440 U S. 93, 97 (1979), stated: “[Wle will not

unconstitutional I]linois’ administering of a law relating to writs

of error in criminal cases in such a way as to deny adequate

appellate review to the poor while granting review to others);

Roberts v. LaVallee, 389 US. 40 (1967) (holding that denying

access to the “instruments needed to vindicate legal nights” on the

basis of financial inability was unconstitutional); Bearden v

Georgia, 461 U.S. 660 (1983) (holding that state may not revoke

indigent defendant’s probation for failure to pay a fine for inability

to pay)

14

strike down a statute on equal protection grounds

‘unless the varying treatment of different groups or

persons is so unrelated to the achievement of any

combination of legitimate purposes that we can only

conclude that the legislature’s actions were

irrational.” (Pet. App. 8a-9a).

Petitioners do not challenge the Sixth Circuit’s

statement of the rational basis standard, leaving only

the application of that standard. The Sixth Circuit

found that Tennessee has a legitimate interest in

“encouraging payment of child support and compliance

with court orders, and requiring felons to complete

their entire sentences, including paying victim

restitution[.]” (Pet. App. 9a). In Jones v. Helms, this

Court held that “[t]here can be no question about the

legitimacy of the purpose to cause parents to support

their children.” 452 U.S. 412, 423 (1981). In Harvey

vu. Brewer, the Court of Appeals for the Ninth Circuit,

examining the same issue as here, held that “|j]ust as

States might reasonably conclude that perpetrators of

serious crimes should not take part in electing

government officials, so too might it rationally

conclude that only those who have satisfied their debts

to society through fulfilling the terms of a criminal

sentence are entitled to restoration of their voting

rights.” 605 F.3d at 1079.

Petitioners assert that because child support

obligations are not related to the underlying felony

conviction, requiring those payments for re-

enfranchisement cannot be rationally related to a

legitimate state interest. In making this argument,

petitioners ignore the legitimate state interest

advanced by the Respondents — to protect the ballot

box from past law-breaking felons who continue to

15

flout the law and violate valid court orders. Child

support obligations are legal obligations reduced to

court orders, just like restitution. By failing to pay

child support obligations, felons are continuing the

very same type of behavior that led to their

disenfranchisement — breaking the laws of the State of

Tennessee. In addition, child support obligations are

directly related to the income of the obligor and can be

changed if the obligor’s income changes. See Tenn.

Code Ann. § 36-5-101(e) and Tenn. Comp. R. & Regs.

1240-02-04-.01-.09. Furthermore, as the Sixth Circuit

concluded, “statutory re-enfranchisement conditions

need only further a legitimate government interest —

not a legitimate government interest specifically tied

to a state’s authority for the initial

disenfranchisement.” (Pet. App. 17a) (citing Vance v.

Bradley, 440 U.S. 93, 97 (1979)).

Ii. THE DECISION OF THE SIXTH CIRCUIT

DOES NOT CONFLICT WITH PRIOR

DECISIONS OF THIS COURT AND LOWERS

COURTS IN HOLDING THAT

CONDITIONING FELON RE-

ENFRANCHISEMENT UPON PAYING

VICTIM’S RESTITUTION AND CHILD

SUPPORT OBLIGATIONS DOES NOT

VIOLATE THE TWENTY-FOURTH

AMENDMENT.

Petitioners’ assert that the Sixth Circuit’s decision

here conflicts with this Court’s holding in Harman uv.

Forssenius, 380 U.S. 528 (1965). In Harman, this

Court struck down a Virginia statute that required

non-felon voters in federal elections to pay a poll tax or

file a certificate of residence prior to voting. 380 U.S.

16

at 538. In striking the statute down, this Court

reasoned:

It has long been established that a State

may not impose a penalty upon those who

exercise a right guaranteed by the Constitution.

Constitutional rights would be of little value if

they could be indirectly denied or manipulated

out of existence. Significantly, the Twenty-

fourth Amendment does not merely insure that

the franchise shall not be “denied” by reason of

failure to pay the poll tax; it expressly

guarantees that the right to vote shall not be

denied or abridged for that reason. Thus, like

the Fifteenth Amendment, the Twenty-fourth

nullifies sophisticated as well as simple-minded

modes of impairing the right guaranteed.

Id. at 540-41 (internal citations and quotations

omitted). As a result, this Court stated, “in order to

demonstrate the invalidity [of a statute], it need only

be shown that it imposes a material requirement solely

upon those who refuse to surrender their

constitutional right to vote in federal elections without

paying a poll tax.” Jd. at 541.

Here, aS the Sixth Circuit reasoned, the re-

enfranchisement law at issue does not deny or abridge

any rights, much less the right to vote. (Pet. App.

18a). The statutes at issue concern only the

restoration of the right to vote. (/d.). As felons,

constitutionally stripped of their right to vote,

petitioners have no underlying right that they are

attempting to exercise absent the payment of a tax.

Thus, the Twenty-Fourth Amendment is _ not

17

implicated by the re-enfranchisement statutes; there

is thus no conflict with Harman.

The Ninth Circuit ruled much the same way in

Harvey v. Brewer. The court held:

Plaintiffs’ right to vote was not abridged

because they failed to pay a poll tax; it was

abridged because they were convicted of

felonies. Having lost their right to vote, they

now have no _ cognizable Twenty-Fourth

Amendment claim until their voting rights are

restored. That restoration of their voting rights

requires them to pay all debts owed under their

criminal sentences does not transform their

criminal fines into poll taxes.

Harvey, 605 F.3d at 1080.

Furthermore, as the Sixth Circuit concluded, even

if felon re-enfranchisement statutes did implicate the

Twenty-Fourth Amendment, child support and victim’s

restitution are not taxes. Both are obligations

incurred by the felons for actions unrelated to any

taxing authority and unrelated to any tax statute.

(Pet. App. 19a).

18

UI. THE SIXTH CIRCUIT’S HOLDING THAT

ENACTMENT OF THE TENNESSEE

STATUTES DID NOT VIOLATE THE EX

POST FACTO CLAUSE OF THE

TENNESSEE CONSTITUTION INVOLVES

AN ISSUE OF STATE LAW NOT

WARRANTING THIS COURT'S REVIEW.

Petitioners assert that the Sixth Circuit exceeded

its authority by ruling that the enactment of the

statutes in question did not violate the Ex Post Facto

Clause of the Tennessee Constitution. This issue is

one purely of state law, not justifying intervention by

this Court. In addition, petitioners do not challenge

the legal standard the court below applied in its Ix

Post Facto analysis, as it was the correct standard,

again making it the sort of question not typically

entertained by this Court.

Second, on the question whether the court below

exceeded its authority, it certainly did not, as the

federal court had supplemental jurisdiction to

entertain purely state law claims that were part of a

matter that presented primarily federal questions. 28

U.S.C. § 1367.

Regardless, the court below was correct in its

application of the Ex Post Facto Clause of the

Tennessee Constitution. As the Sixth Circuit stated,

the Ex Post Facto analysis is a two step process: (1) the

court must first determine whether the statute

constitutes a civil or regulatory measure or is a

punitive one; and (2) even if the statute was not

intended to be punitive, a court should determine

whether the statute is so punitive in purpose or effect

as to negate that intention. (Pet. App. 21a) (citing

19

Smith v. Doe, 538 U.S. 84, 92 (2003); Hudson v. United

States, 522 U.S. 93, 99 (1997); and United States v.

Ward, 448 U.S. 242 248-49 (1980)). If the statute is

intended to be punitive or is so punitive in purpose or

effect as to negate the intention, then it is violative of

the Ex Post Facto Clause. (d.).

Here, the Sixth Circuit concluded, when it enacted

the statutes in question, the Tennessee legislature did

not intend it to be punitive. (Pet. App. 22a).

Petitioners take issue with this finding, citing May v.

Carlton, 245 S.W.3d 340, 349 (Tenn. 2008). In May,

the ‘Tennessee Supreme Court stated in dicta that

statutes disenfranchising felons were punitive. /d. In

that case, the Tennessee Supreme Court was faced

with a situation in which a disenfranchisement law

retroactively disenfranchised felons who had not been

disenfranchised when convicted. /d. at 348. May,

however, was concerned with retroactive

disenfranchisement. Here, the statutes in question do

not retroactively disenfranchise, they merely govern

re-enfranchisement. So, even if felon

disenfranchisement in Tennessee were punitive, that

would be irrelevant to whether re-enfranchisement

laws are. There is no evidence that the intent of the

legislature in enacting the re-enfranchisement statutes

was punitive or that the purpose or effect of those

statutes is so punitive as to render the legislature's

intent irrelevant.

In addition, the felon re-enfranchisement statutes

do not add to any of petitioners’ punishments for their

felonies. Prior to the passage of the statutes in

question, petitioners were disenfranchised; subsequent

to their passage, petitioners remained disenfranchised

The road to re-enfranchisement is not a part of their

Dur hm«e ht

JOSEPH If. WHALEN

OCIALeC Solicitor (7en

IANET M. KLEINEELTI

Deputy Attorney General

125 5"" Avenue North

Nashville, ‘Tenness«e

615) 741-3499

oe Whalen@ag.t

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Haslam, (7,OVeTNOT O] Lile OECLLE

fennessee, Mark Goins, Coordtinatoi

Hlections, and Tre Harpe

»firvy at Cy