Elizer Darris, community activist and probationer, is among four plaintiffs asking the state Supreme Court to review a voting-rights case. (Photo: Kevin Featherly)


ACLU-MN attorney: MN statutes ‘target’ people of color for disenfranchisement


The state Supreme Court has been asked to a review a lawsuit seeking court intervention to restore the statutorily denied voting rights of four felons on probation.

The petition seeks to overturn a May 24 Court of Appeals ruling. It found that the state law that bars probationers from casting election ballots does not violate their voting, equal protection or due-process rights under the Minnesota Constitution.

The unanimous Court of Appeals panel upheld an earlier 2020 Ramsey County District Court decision, which found that plaintiffs—despite offering a compelling argument for re-enfranchisement—could not demonstrate that they had a “fundamental right to vote.”

Plaintiffs’ disenfranchisement, 2nd Judicial District Court Judge Laura E. Nelson ruled, is a problem for lawmakers to fix, not judges.


‘Fundamentally wrong’

That will now be up to the Supreme Court to decide.

Attorneys for ACLU-Minnesota, with co-counsel from Faegre Drinker Biddle & Reath and the national ACLU—admitted pro hac vice—filed a petition for review Wednesday. It was submitted on behalf of four plaintiffs whose status as felons on probation has prevented them from voting.

The litigants include Jennifer Schroeder, Elizer Eugene Darris, Christopher James Jecevicus-Varner and Tierre Davon Caldwell. Their petition names Secretary of State Steve Simon, the top official overseeing the state’s voting system, as respondent.

“The exclusion of these citizens from the political process is fundamentally wrong, undemocratic and corrosive to constitutional governance,” said Craig Coleman, a Faegre partner working the case pro bono. He was quoted Wednesday in an ACLU-MN press release.

In an interview Wednesday, ACLU-MN staff attorney David P. McKinney put it even more starkly, saying:

“It looks to us like the statutes not only disenfranchise folks for no good reasons, but target people of color.”

Wednesday’s filing was not a surprise. Plaintiffs’ attorneys said immediately after the Court of Appeals ruling that they intended to appeal to the Supreme Court.


Statutory scheme

In their review petition, plaintiffs argue that Minn. Stat. § 609.165 and Minn. Stat. § 201.145 combine to form a statutory scheme that disenfranchises more than 53,000 Minnesotans on supervised release.

Minn. Stat. § 609.165 prohibits felons from voting until their full sentences, including terms of probation, are served. Minn. Stat. § 201.145 excludes felons from inclusion in the statewide voter registration system until their “civil rights have been restored.”

Petitioners argue that no legitimate government interest is served by the statutory scheme. Nor is any interest served by the “profoundly disproportionate impact of that practice on persons of color,” appellants maintain.

They’re asking the Supreme Court to review the constitutionality of both the statutes and the Court of Appeals’ holding.

They point to data showing that Black Minnesotans are nearly five times more likely than whites to be classified ineligible to vote because they’re on probation. Native Americans in the state are nines more likely than whites to have that designation, petitioners indicate.


Stock photo: Sora Shimazaki, Pexels.com


Standards of review

The petition asks Minnesota’s Supreme Court to answer two fundamental questions on appeal.

First, can a statutory scheme that causes serious voting-rights racial disparities survive a rational basis review? That standard helps courts determine if a law is rationally related to a legitimate government interest.

The Court of Appeals answered yes to that question, on grounds that state law does not facially discriminate based on race, the petition says. But plaintiffs argue otherwise.

“The legislature’s classification directly causes racial political inequality with respect to the right to vote,” Wednesday’s petition says. “Heightened rational-basis review must be applied to ensure that the legislature has some valid purpose for causing this disparity.”

Question two: Should the legislature’s statutory scheme be subject to strict scrutiny under Article I of the Minnesota Constitution. The strict scrutiny test helps judges determine whether a law is appropriately tailored and uses the least restrictive means necessary to serve a compelling state interest.

In part, the petition argues that the Court of Appeals erred by interpreting the Minnesota Constitution’s Article VII as authorizing felons’ disenfranchisement “unless restored to civil rights by the legislature” [emphasis in original].

“That emphasized text, of course, is nowhere to be found in Article VII,” the petition says. Instead, plaintiffs argue here, as at the Court of Appeals, that the constitution should be read as restoring felons’ voting rights immediately upon release from custody.

Voting is a fundamental right, appellants argue, and perhaps the overarching question they hope the Supreme Court will answer is whether Minnesota’s courts have a constitutional role in ensuring the political branches don’t deny that right for no reason.

The Court of Appeals said no to that question, based on its interpretation of Article VII and its holding that the fundamental right to vote does not apply to plaintiffs, the review petition says.


‘Fully rehabilitated’

All four plaintiffs were felons released to probation. Schroeder, who now works as an addiction recovery counselor, is serving a 40-year probation term following a 2013 drug conviction for which she served a year county jail. Her probation term expires in 2053.

Darris is on probation until 2025, for a second-degree murder committed when he was a teen. A former ACLU-MN organizer, he is now co-executive director of the Minnesota Freedom Fund, which raises bail for the indigent.

He also is a member of the state Attorney General’s Conviction Review Unit advisory board. Attorney General Keith Ellison’s office is defending the state, on Simon’s behalf, against Darris and the other plaintiffs.

If someone like Darris can be trusted to serve on governmental commissions, McKinney said, why shouldn’t he also be entrusted with the vote? “This is our point, right?” the lawyer said. “He is fully rehabilitated, he is fully serving his community. That doesn’t make any sense.”

The Court of Appeals found that Jecevicus-Varner and Caldwell—who both were on probation when the lawsuit was originally filed but were discharged at the time of the appeal—had their voting rights restored. Their claims were declared moot by the appeals panel. Nonetheless, both are listed as appellants in the Supreme Court petition.

“The Supreme Court reviews it de novo,” McKinney said, “so basically the issues are all presented fresh to the court.”

The case is not a class action; it names just four specific plaintiffs. But if the Supreme Court rules their way, McKinney said, it would fundamentally alter the lives of all 53,000 released felons who presently cannot vote.

“If they find the law unconstitutional for these plaintiffs,” McKinney said, “the law would obviously not be applicable in any application to anyone.”

There is no formal deadline for the Supreme Court to respond to the petition. But McKinney said he expects to hear back in a month or so.


Session/Law logo by Kirk Anderson