Minnesota Supreme Court Grapples with Voting Rights and Equal Protection

The Minnesota Supreme Court recently decided a challenge to Minnesota’s system for restoring voting rights to felons: Schroeder v. Simon.[1] The forty-nine page majority opinion, written by Justice Paul Thissen, addressed the constitutionality of Minnesota Statutes section 609.165 (2022) under the voting rights[2] provision and “equal protection principle” of the Minnesota Constitution.[3] But the decision was not without controversy: Justice G. Barry Anderson wrote a concurrence, joined by Chief Justice Lorie S. Gildea, agreeing with the outcome but splitting from the majority’s approach to equal protection.[4] And Justice Natalie Hudson dissented, bluntly criticizing her colleagues’ conclusions and approach.[5]

Background

Article VII, Section 1, of the Minnesota Constitution provides: “a person who has been convicted of treason or felony” shall not be entitled or permitted to vote in any election in this state “unless restored to civil rights.” Minnesota Statutes section 609.165 (2022) provided a statutory mechanism to restore the civil rights of persons convicted of a felony. Under the statute, the civil rights of convicted felons, including the right to vote, were restored upon sentence “discharge.”[6]

Appellant Jennifer Shroeder was convicted of first-degree sale of a controlled substance; she is currently on a probation term not expected to end until 2053.[7] Appellant Elizer Eugene Darris, convicted of second-degree-intentional murder, got out of prison in 2016 and will be on supervised release until 2025.[8] They filed this action in 2019 looking for declaratory and injunctive relief establishing (1) that being released or excused from incarceration automatically restored their civil rights, (2) that denial of the right to vote to released individuals violated the right to vote and equal protection, and (3) that “the restoration statute, Minn. Stat. § 609.165, ‘shall not be read to preclude restoration of voting rights prior to discharge.’”[9]

The defendant Secretary of State prevailed at summary judgment, and the Court of Appeals affirmed.[10] The Minnesota Supreme Court took up de novo review.[11]

Justice Thissen’s Majority Opinion

Felons’ Right to Vote

Article VII, Section 1 states: “The following persons shall not be entitled or permitted to vote at any election in this state: . . . “a person who has been convicted of treason or felony, unless restored to civil rights.”[12] The court noted this constitutional language is “straightforward” to the extent that it prohibits voting by felons (noting that the policy justifications behind this are not the court’s to consider) but that the real dispute was about the phrase “unless restored to their civil rights.”[13] The Secretary of State argued this language meant a convicted felon remained barred from voting, even upon release, absent conviction nullification or affirmative government action reinstating the voting right.[14] Appellants instead took the view that being “restored to civil rights” is synonymous with “restored to life in the community”—i.e., released or excused from incarceration.[15]

The court began its analysis narrowly, postulating that if the appellants’ interpretation were the legislature’s intent, it would have used language directly saying so.[16] It concluded appellants’ reading “does not follow from the absence of explicit language requiring restoration by some affirmative act.”[17] The court then spent nine pages analyzing the history of various enactments leading to the Minnesota’s Constitution, as well as other subsequent acts by the legislature involving similar language.[18] This history offered further support for the state’s interpretation. And while these contextual and historical considerations were not “dispositive” of the voting clause’s meaning, the court found them “more compelling” than appellants’ “historical arguments . . . based on conjecture and speculation.”[19]

Fundamental Right to Vote

The court then turned to Minn. Stat. § 609.165.[20] Subdivision 1 of that statute provides:

When a person has been deprived of civil rights by reason of conviction of a crime and is thereafter discharged, such discharge shall restore the person to all civil rights and to full citizenship, with full right to vote and hold office, the same as if such conviction had not taken place, and the order of discharge shall so provide.

The statute defines “discharge” as “expiration of sentence,” meaning individuals on probation or supervised release are not encompassed by it and cannot vote.[21]

Reiterating the right to vote’s fundamental nature, the court emphasized this right only belongs to those to whom the people of Minnesota decided to provide it.[22] Since the statute addressed a group expressly omitted from the right’s constitutional provision, the court “d[id] not understand how a statute denying persons convicted of a felony the entitlement or permission to vote can violate the fundamental right to vote.”[23]

Equal Protection

This left only the appellants’ final contention: “the mechanismchosen by the Legislature to restore the civil rights of those otherwise constitutionally prohibited from voting due to a felony conviction violates the equal protection principle in the Minnesota Constitution.”[24]

Before beginning its equal protection analysis, the court noted that it is the constitution, not the statute, that deprives felons of the right to vote: the statute restores that right to some.[25] It then turned to whether appellants are “similarly situated” to individuals whose convictions have been “discharged.”[26] Disagreeing with the Court of Appeals, the court found the groups “similar in the relevant respect”: “persons in both categories have been convicted of a felony and lost their right to vote.”[27]

It then turned to the applicable level of scrutiny. Because the court already concluded the fundamental right to vote was not implicated, the question was whether heightened or traditional rational basis governed.[28]

On this point, appellants’ argument focused on racially disparate impact on minorities.[29] However, heightened scrutiny required appellants to show this disproportion was caused by the statute, not by the constitutional exclusion of felons from the right to vote. And the record developed by appellants did not “include sufficient evidence to allow [the court] to answer th[at] necessary question.”[30] Thus, the court concluded, regular rational-basis scrutiny applied, and Section 609.165 survived that permissive level of scrutiny.

Justice Anderson’s Concurrence (Joined by Justice Gildea)

Justice Barry Anderson agreed with the majority’s conclusion and right-to-vote analysis.[31] However, he wrote separately to disagree with the court’s equal protection analysis.[32] Appellants had argued that they were similarly situated to Minnesotans of voting age, not to felons whose voting rights had been restored.[33] Justice Anderson agreed this was not the correct comparison but contended that the court should have simply rejected the appellants’ argument and ended its analysis.[34]

Justice Hudson’s Dissent

Justice Hudson wrote separately to reject the majority’s reasoning entirely.[35] She emphasized “Minnesota’s highly protective approach to equal protection claims based on racial discrimination,”[36] arguing the majority wrongly discounted the evidence showing the disenfranchisement caused by convicted felons’ loss of the right to vote. She argued appellants sufficiently showed that Section 609.165 was not “blameless” and actively contributed to the disproportionate disenfranchisement of minorities. According to her, the majority reached the opposite conclusion by erroneously portraying the statute as an “automatic restoration” statute when it actually extended the disenfranchisement in a manner not constitutionally required.[37] Applying heightened rational-basis scrutiny, she argued, section 609.165 should be held to violate equal protection.[38] The second half of her dissent decried the majority decision on moral grounds, asserting it “demeans [the] constitution’s promise of equal protection” and “sanctions the racial discrimination inexorably woven into the statute.”[39]

While the authors of the majority opinion, concurrence, and dissent differed in their view of the approach to equal protection, they all demonstrated discomfort with the statute’s disproportionate impact on minority voters. However, as the majority indicated—such considerations belonged to the legislature, not the court. And, interesting to note, it did consider them: earlier this year, the Minnesota Legislature changed the method by which the right to vote is restored to felons.[40] So perhaps the greatest takeaway here is an example of the complementary branches doing exactly what they are designed to do.

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