A lawsuit filed earlier this year in Tennessee alleges that the state’s election officials are ignoring court orders to restore voting rights for former felons.
The state, which has one of the most restrictive felon disenfranchisement laws in the country, allows circuit courts to restore the full rights of citizenship, including voting rights, to people who have served their time and who petition for a restoration. But the suit claims that those court orders aren’t resulting in former felons having their names added back to the voter rolls.
Nashville-area attorney Elizabeth R. McClellan filed the suit in March against the State Election Commission and its elections coordinator, Mark Goins, on behalf of one former felon, Robert O’Neal, and others who may have been affected by the discord between the courts and the commission. McClellan filed the suit as class-action litigation, although a judge has not yet certified it as such.
The case comes as restoring voting rights for former felons is increasingly being seen as an area with the potential for bipartisan progress in Congress.
Tennessee is one of just 11 states that permanently disenfranchise citizens from voting. People in the state convicted of murder, treason, rape, voter fraud or sexual offenses can’t petition to have their voting rights restored once they finish their sentence and parole. Any other convicted felons who have paid restitution and outstanding child support may apply to the state Election Commission to have their voting rights restored. Alternatively, they may ask a circuit court judge to hear their case to have their full citizenship rights restored, including voting rights. The state may object on any grounds relevant to character during the court proceedings.
In a 2014 report, the Tennessee Advisory Committee to the U.S. Commission on Civil Rights estimated that more than 160,000 former felons are currently disenfranchised in the state, with African-Americans disproportionately affected by the state’s voting rights ban.
McClellan’s suit argues that Goins is incorrectly interpreting state law to subvert a judicial order dictating that O’Neal’s citizenship rights be restored.
“They’re holding his right to vote hostage,” she told The Huffington Post. “They seem to believe that they have every right to not enforce the order that my client and similarly situated people like him obtained through the Tennessee judicial citizenship rights statute because those orders are not lawful."
"In their opinion, the sole person who gets to decide who is eligible to have their voting rights restored is the state coordinator of elections and his office, with no due process, no oversight, no administrative hearing and no appeal," she continued. "They’re simply allowed to receive orders and conduct their own special investigation, and if they think [the restoration applicants] don’t pass muster, they simply refuse to enforce [the orders].”
The suit asks for mandatory enforcement of orders like the one to restore O’Neal’s rights. It also calls for a determination as to whether the Election Commission has the power to override court orders. McClellan has filed a motion for a default judgment in favor of her case, while the state attorney general’s office has filed a motion to dismiss the suit. A hearing will be held May 22 on the motion to dismiss.
O’Neal was convicted in the early 1990s of sale of a controlled substance and possession of a Schedule II controlled substance with the intent to sell. He completed his sentence for both convictions and was released from parole in 2012. While in prison, he had child support payments assessed against him, so once he was released he went through a child support court to set up a payment plan for the money he owed.
To have his voting rights restored, O’Neal first attempted to go the administrative route through the state Election Commission. The commission denied that request because of the back child support he was still paying off. He then tried to go through the courts, and a judge ordered his rights restored this past October. During that process, the state’s district attorney did not raise any objections. The Election Commission, however, declined to add O’Neal to the rolls once he had obtained that judicial order, so he was unable to vote in November’s midterm elections.
“He’s just in limbo because the state Election Commission thumbed its nose at the judiciary. It seems to think it has the sole right to determine which judicial orders it follows, which is simply not true,” McClellan said. “They say the language in the administrative part of the statute allows them to go behind the court and determine whether the court’s order is lawful.”
McClellan believes the commission's rejection of O'Neal is redundant, because the state was already represented in the judicial hearing about the restoration of O’Neal’s rights.
“If [the district attorney thinks] there’s something hinky and there’s some reason this person shouldn’t be restored, they can go and get all the evidence they want. They could get the information the Election Commission is getting in these checks and they could make it a contested hearing,” she said. “The Tennessee Election Commission seems to think that it has some separate authority to be heard separate from the state of Tennessee, which it doesn’t.”
Goins, who formerly served in the state legislature and now represents Tennessee on the U.S. Election Assistance Commission’s Standards Board, said in 2009 that while the restoration of voting rights may take some time, “it’s not a complicated process.” His office said it could not comment on ongoing litigation.