Each state has its own laws governing whether convicted felons are allowed to vote in elections. A lawsuit (pdf) filed in Alameda County Superior Court Tuesday accuses Secretary of State Debra Bowen of incorrectly interpreting California’s and disenfranchising more than 58,000 people in the process.

The lawsuit alleges that Bowen erred in 2011 when she decided that the state’s new prison realignment, meant to relieve overcrowding in part by reclassifying some parolees as being under mandatory supervision or post-release community supervision, did not, in fact, change their status. She still considered them parolees and governed by laws that forbid their voting.

In California, convicted felons cannot vote while still imprisoned or on parole. In a December 2011 memo to county election supervisors (pdf), Bowen told them people sentenced under the two new classifications do not get to vote until their supervision ends. Bowen does not call them parolees, but treats them as such.

She said their status does not change “just because the mandatory supervision that is a condition of their release from prison is labeled something other than ‘parole.’ ”       

The American Civil Liberties Union of Northern California and the Lawyers’ Committee for Civil Rights disagreed and sued the state on behalf of the League of Women Voters and other groups. “People on these forms of supervision are not on parole, which is now reserved for people convicted of more serious crimes,” the attorneys argued.

People under the new forms of supervision are overseen by the county, not the state. Parolees are under the jurisdiction of the California Department of Corrections and Rehabilition (CDCR). The lawsuit says that Bowen tried in 2005 to exclude people on probation from voting, but an appellate court ruled that those folks are under the supervision of the courts, not the CDCR, so they retain the right.

The lawsuit alludes to “bureaucratic tyranny” and alleges that Bowen violated the California Administrative Procedure Act (APA) by sending out her 2011 memo without notifying the public and gathering their comments. “This is precisely the type of unilateral rulemaking the APA is designed to prevent,” the suit argues.  

The 2011 realignment was a response to federal court directives that California dramatically reduce the size of its prison population to 137% of the penal system’s designed capacity.

The Brown administration’s realignment policy has cut the prison population by more than 25,000 by directing low-level felons and parole violators to county jails. But that is still short of federal mandates. Brown has resisted calls for releasing prisoners to make the quota, preferring to ship them to out-of-state prisons, increase prison capacity and put in place stopgap measures.

The federal government has been in charge of California prison healthcare since 2005 and overcrowding since 2009. The takeover followed years of prison horror stories, frequent inmate deaths, severe overcrowding, deficient health care, defiant mismanagement and, in the end, lawsuits.

The federal courts have jousted with the state over unsafe and unhealthy conditions they say violate prisoners’ constitutional rights. While that battle continues, a new one over their voting rights has now begun.

–Ken Broder

To Learn More:

ACLU, LWV Sue Debra Bowen over Voting Rights (by Josh Richman, San Jose Mercury News)

Voting-Rights Activists Sue Debra Bowen Claiming Mass Exclusions (by Christopher Cadelago, Sacramento Bee)

ACLU Contends California Must Let Former Prisoners Vote (by Paige St. John, Los Angeles Times)

Judges Give up on Years of Failed Prison Talks, Will Craft Own Solution to Overcrowding (by Ken Broder, AllGov California)

League of Women Voters et al v. California Secretary of State Debra Bowen (Alameda County Superior Court of California) (pdf)