Reply Brief — Johnson v. Haslam

r ~” Supreme Coun, US.

FILED

No. 10-1149 : MAY 3~- 2uil

Pea eos mie OFFICE CHI HE CLERC |

IN THE Bice

Supreme Court of the United States

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TERRENCE JOHNSON, JIM HARRIS, JOSHUA ROBERTS,

Petitioners,

BILL HASLAM, Governor of the State of Tennessee; MARK GOINS,

Coordinator of Elections; TRE HARGETT, Secretary of State of

Tennessee; RICHARD HIOLDEN, Administrator of Elections for

Shelby County; Kim BUCKLEY, Administrator of Elections for

Madison County; ALBERT U. TIECHE, Administrator of Elections

for Davidson County, in their official capacities,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

REPLY TO BRIEF IN OPPOSITION

TRICIA HERZFELD NANCY G. ABUDU

AMERICAN CIVIL LIBERTIES UNION Counsel of Record

FOUNDATION OF TENNESSEE LAUGHLIN MCDONALD

P.O. Box 120160 AMERICAN CIVIL LIBERTISS UNION

Nashville, Tennessee 37212 FOUNDATION

(615) 320-7142 230 Peachtree Street

Atlanta, Georgia 30303

(404) 523-2721

nabudu@aclu.org

STEVEN R. SHAPIRO

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION

125 Broad Street

New York, New York 10004

(212) 549-2500

TABLE OF CONTENTS

TENNESSEE HAS ERECTED AN ARBITRAR

AND IRRATIONAL STANDARD FOR

RESTORING VOTING RIGHTS IN

CONTRAVENTION OF CORE EQUAI

PROTECTION PRINCIPLES AS

ANNOUNCED BY THIS COURT

TENNESSEE’S CHILD SUPPORT AND

RESTITUTION REQUIREMENTS PRESED

A REAL, CONCRETE BARRIER TO

PETITIONERS GETTING THEIR VOTING

RIGHTS RESTORED IN VIOLATION OF

THE TWENTY-FOURTH AMENDMENT

THE SIXTH CIRCUIT'S DECISION

REGARDING PETITIONERS’ EX POS’

FACTO CLAIM WARRANTS THIS COUI

REVIEW

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OMmMUNILCALLOTLS 4

54 U.S. 269 (2008)

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Petitioners submit this reply brief to further

clarify the legal bases for their constitutional claims

and to underscore respondents’ failure to address any

of the central arguments raised in the petition.

TENNESSEE HAS ERECTED AN

ARBITRARY AND IRRATIONAL

STANDARD FOR RESTORING VOTING

RIGHTS IN CONTRAVENTION OF CORE

EQUAL PROTECTION PRINCIPLES AS

ANNOUNCED BY THIS COURT.

While spending considerable time arguing that

petitioners’ equal protection claim is not entitled to a

heightened level of scrutiny under the balancing test

set forth in Anderson v. Celebrezze, 460 U.S. 780

(1983), and Burdick v. Takushi, 504 U.S. 428 (1992),

respondents fail to offer any rational justification for

restoring the right to vote only to those within the

class of convicted felons who can financially afford to

make such payments. Petitioners believe that the

arguments in their petition fully and adequately

address why, under any level of scrutiny, Tennessee’s

requirement that restitution and child support

obligations be paid prior to the state restoring their

voting rights violates the Equal Protection Clause.!

| Contrary to respondents’ contention, petitioners did allege 1

their amended complaint that denying them the right to vote

based on their inability to pay restitution and outstanding child

support is a form of wealth-based discrimination and has a

negative and disproportionate impact on indigent people

Amend. Compl. 94 1, 36, 44, 45, and Prayer for Relief. Thus,

petitioners have raised a cognizable injury for purposes of

challenging the lack of an indigency exception within the law

with respect to the restitution and child support provisions

Respondents’ contentions in their opposition brief,

however, obscure the legal theory underlying

petitioners’ equal protection claim as it pertains

specifically to the child support provision.

Respondents argue that the child support

requirement advances the state’s purported goal of

“protect[ing] the ballot box from past law-breaking

felons who continue to flout the law and violate valid

court orders,” and that “[b]ly failing to pay child

support obligations. felons are continuing the very

same type of behavior that led to _ their

disenfranchisement.” (BIO 14-15). Yet, even under a

rational basis standard, respondents stili carry the

burden of justifying why the child support provision

does not equally apply to all those individuals within

the state who owe outstanding child support, and

respondents have not met their burden. See Hooper

vu. Bernalillo County Assessor, 472 U.S. 612 (1985)

(striking dow.., under rational basis, state law which

bestowed tax benefits only to those veterans who

moved to the state prior to a specified date).

Respondents cite Jones v. Helms, 452 U.S.

(1981), in support of the proposition that states have

an interest in ensuring parents support their

children. (BIO 14).2, However, this Court upheld the

Sprint Communications Co., L.P. v. APCC Ser

269, 273 (2008)

As alleged in their amended complaint, petitioners Johnson

and Harris had custody of their children when the lawsuit was

filed. Amend. Compl. 44] 4-5. Thus, to the extent respondents

seek to encourage parents to take care of their children,

petitioners Johnson and Harris already were doing that without

Georgia law at issue in Jones, which imposed

additional punishments for those parents who had

abandoned their children and then left the state,

primarily because it equally applied to all parents in

Georgia. 452 U.S. at 423 (“(The Equal Protection

Clause] ‘announces a fundamental principle: the

State must govern impartially. General rules that

apply evenhandedly to all persons within the

jurisdiction unquestionably comply with this

principle.” (quoting New York City Transit Auth. 1

Beazer, 440 U.S. 568, 587 (1979))).

Respondents do not contest the fact that,

unlike petitioners, parents who have not been

previously disenfranchised but who owe outstanding

child support payments, are still able to vote. Given

its unequal application, the child support provision

has a dubious relationship to the State’s felon

disenfranchisement law, and the existence of this

double standard casts considerable doubt on whether

the respondents’ asserted policy interests were

indeed the driving force behind the provision’s

enactment. See Bullock v. Carter, 405 U.S. 134, 145

(1972) (invalidating Texas law that imposed high

filing fees on political candidates regardless of their

financial ability to pay such fees, ruling that “the

criterion for differing treatment must bear some

relevance to the object of the legislation”); Florida

Star v. B.J.F., 491 U.S. 524, 541 (1989) (holding that

the “facial underinclusiveness” of a statute barring

publication of a rape victim’s name, while permitting

the additional burden of having their voting

parental obligations

its dissemination through other means, “raises

serious doubts about whether Florida is, in fact,

serving, with this statute, the significant interests

which [the state] invokes in support of affirmance).

Even accepting its asserted interest,

Tennessee’s goal of ensuring that parents satisfy

their child support obligations cannot be met when

the voting rights of some, but not all, parents

engaged in the same conduct are burdened. See City

of Cleburne v. Cleburne Living Center, 473 U.S. 432,

446 (1985) (“The State may not rely on a

classification whose relationship to an asserted goal

is so attenuated as to render the distinction arbitrary

or irrational.”); Jones, 452 U.S. at 424 (“[T]he State’s

administration of its laws must be impartial and

evenhanded.”); U.S. Dep’t. of Agric. v. Moreno, 413

U.S. 528, 534 (1973) (“[I]f the constitutional

conception of ‘equal protection of the laws’ means

anything, it must at the very least mean that a bare

congressional desire to harm a politically unpopular

group cannot constitute a legitimate governmental

interest.”).

Nor can Tennessee justify that distinction by

relying on the fact that petitioners have felony

convictions because the state has already made the

decision to restore voting rights to convicted felons.

See U.S. Dep't of Agric. v. Moreno, 413 U.S. at 534

(striking down law that denied food stamps to

households comprised of unrelated people under

rational basis test, holding that a law which accords

different treatment based on who engages in the

conduct violates traditional equal protection

principles); U.S. v. Armstrong, 517 U.S. 456, 467

(1996) (“Our holding [in Hunter v. Underwood, 471

U.S. 222 (1985), striking down Alabama’s felon

disenfranchisement law] was’ consistent with

ordinary equal protection principles, including the

similarly situated requirement.”); Lawrence v. Texas,

539 U.S. 558, 580 (2003) (O’Connor, J., concurring)

(striking dewn Texas sodomy law that prohibited

homosexuals, but not heterosexuals, from engaging

in certain sexual acts, holding that, “[w]hen a law

exhibits such a desire to harm a politically unpopular

group, we have applied a more searching form of

rational basis review to strike down such laws under

the Equal Protection Clause.”). In accordance with

this Court’s equal protection jurisprudence, the

means by which Tennessee seeks to achieve its

interests should equally apply to all those who fit the

category of persons owing outstanding child support

In addition to being arbitrary, Tennessee’s

refusal to restore the vote to convicted felons who are

too indigent to meet their child support obligations is

also irrational. There is no inducement under those

circumstances; there is only a stick and not a carrot.

Tennessee seemingly recognized as much when it

provided an indigency exception for those denied

restoration of their voting rights because of a failure

to pay court costs. Yet, Tennessee offers no

explanation, and none is apparent, why the failure to

pay court costs that are directly related to one’s

conviction is not an impediment to regaining the

right to vote if that failure is based on indigency,

Tenn. Code Ann. § 40-29-202, but the failure to pay

unrelated child support payments is an absolute bar

regardless of indigency. This provides yet another

reason to strike down the child support provision as

a violation of equal protection.

I. TENNESSEE’S CHILD SUPPORT AND

RESTITUTION REQUIREMENTS

PRESENT A REAL, CONCRETE

BARRIER TO PETITIONERS GETTING

THEIR VOTING RIGHTS RESTORED IN

VIOLATION OF THE TWENTY-FOURTH

AMENDMENT.

Respondents argue that the Twenty-Fourth

Amendment does not apply in this case because

petitioners do not have a fundamental right to vote.

(BIO at 16-17). They attempt to narrow this Court’s

ruling in Harman v. Forssenius, 380 U.S. 528 (1965),

by once again contending that petitioners’ status as

convicted felons renders the state’s re

enfranchisement scheme completely immune from a

constitutional challenge. Jd. However, the broad

principles announced in Harman cannot be so easily

dismissed solely on the grounds that petitioners have

felony convictions. When interpreting the Twenty

Fourth Amendment, this Court has focused on

dismantling economic barriers to the ballot box

regardless of how sophisticated or camouflaged those

attempts might be. See League of United Latin

American Citizens v. Perry, 548 U.S. 399, 439-440

(2006) (recognizing poll taxes as a device historically

used to deny minorities the right to vote); Johnson v.

DeGrandy, 512 U.S. 997, 1018 (1994) (describing pol!

taxes as a “reprehensible practice” designed to deny

equal access to the ballot box)

Respondents do not contest that, but for the

restitution and child support requirements,

petitioners would be eligible to vote under Tennesse«

law. Thus, the financial obligations imposed upon

petitioners solely for purposes of voting create a real

and substantial economic barrier to the ballot box for

them. Congress specifically sought to prohibit states

from erecting a class-based system when it comes to

voting, which is exactly what Tennessee’s restitution

and child support requirements do. This Court’:

decisions in Harman and Harper v. Virginia State

Bd. of Elections, 383 U.S. 663 (1966), reaffirmed that

valuable principle, Tennessee’s restitution and child

support provisions run afoul of that goal and cannot

ttand.

Moreover, respondents summarily assert that

the restitution and child support obligations are not

“taxes” covered under the Twenty-Fourth

Amendment (BIO at 17). However, they neve

address any of the statutory provisions petitioner:

previously cited clearly showing that such payments

often go directly to the state and, thus, support

government programs in the exact same way thai

other state tax revenues are used. (Pet. 23-24)

Overall, respondents have failed to distinguish the

restitution and child support obligations from the

category of “other taxes” the ‘Twenty-Fourt

Amendment prohibits, and they do not negate th

fact that the very people the amendment seeks to

protect — the poor — are disproportionately impacted

by Tennessee’s flawed re-enfranchisement schems

THE SIXTH CIRCUITS DECISION

REGARDING PETITIONERS’ EX POST

FACTO CLAIM WARRANTS THIS

COURT'S REVIEW.

Lastly, respondents contend that this Court

should not review the lower court’s ruling regarding

petitioners’ ex post facto claim because the issue

involves a matter of state law and, regardless, the

lower court applied the correct legal standard and

reached the proper conclusion. (BIO at 18-20). The

Sixth Circuit’s ruling cannot stand, however, because

it rests on an interpretation of state law that directly

conflicts with the authoritative interpretation of the

Tennessee Supreme Court

This Court has held that ex post facto clause

are “aimed at laws that retroactively alter the

definition of crimes or increase the punishment fo!

criminal acts.” California Dept of Corrections 1

Morales, 514 U.S. 499, 504 (1995) (internal

quotations and citations omitted); Carmell v. Texas,

529 U.S. 513, 524-25 (2000) (“the words ex post facto

laws were technical expressions, and meant every

law... which changed the punishment, and inflicted

a greater punishment than the law annexed to the

crime when committed.”) (internal quotations and

citations omitted). In applying that test, this Court

has focused on two critical factors: (1) wnether the

law is retroactive, thus applying to acts committed

before its passage; and (2) whether the lav

Respondents also assert that Line lowe!

upplemental jurisdiction over petitioners’ state law

matter which 1s not at issue in this case. (BlO at 1

lisadvantages the |

Graham, 450 U.S. 24

S. 433, 441 (1997)

Neither the Sixth Circul respol

ntested the fact that Tennessee's restitution an

child support obligations are being retroactivel

applied to petitioners. They also did not contest th

fact that petitioners would have been eligible {|

restoration of their voting rights prior to the law

passage but are ineligible under existing law due t

their outstanding financial debts. Rather, the Sixt!

Circuit’s ruling was premised entirely on its findin

that the law is not penal in nature. Pet. App. 24a

The Tennessee Supreme Court ruled otherwise

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

that ruling is binding on the federal courts. R.A. V

City of St. Paul, 505 U.S. 377, 381 (1992

Specifically, in May, the Tennessee Supreme Court

held that Tennessee “[l]Jaws disenfranchisins

felons are penal in nature,” id. at 24!

convicted

S.W.3d at 349, and thus Tennessee could n

retroactively apply the disenfranchisement law

individuals who were eligible to vote at the time

their conviction Extending the period

disenfranchisement for those who are unable to p

restitution or child support is no less penal than a

extension of petitioners’ actual sentence. Wheth«

the Sixth Circuit could have reached a differen

conclusion if it were writing on a clean slate is besid

the point. The Sixth Circuit effectively created

clean slate by erasing what the Tennessee Supren

Court had already writt

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