RICHARDSON v. RAMIREZ

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Argument of Duncan M. James

Chief Justice Warren E. Burger: We’ll here arguments next in 72-1589, Richardson against Ramirez and others.

Mr. James, you may proceed whenever you are ready.

Mr. Duncan M. James: Mr. Chief Justice and may it please the Court.

First, I’d like to begin by correcting the two citations that appear in petitioner’s replied brief that was filed on January 8.

The first correction is on page 4, Footnote 3, the citation of the United States versus Reese.

The Lawyer's edition citation was used their as 28.

The correct citation --

Chief Justice Warren E. Burger: Now, let's turn that page again, would you?

Mr. Duncan M. James: The page 4.

Unknown Speaker: Of what brief?

Mr. Duncan M. James: Of the petitioner's reply brief.

It’s said to be 28 Lawyer's edition and it’s actually volume 23.

And on the next page, page 5 in the parenthesis, it says James versus Bowman 190 US 124; the correct citation is 190 US 127.

Also, I’d like to point out to the Court that in Mendocino County, we have somewhat of an inadequate law library and we only have Lawyers Editions and on page 4, the citation on page 4 is the United States versus Reese is referred to as being a note and apparently this is an editor’s note regarding the right of women to vote.

However, the opinion as quoted in the footnote on the page 5 is the portion of the opinion of the Court.

What I’d like to do first I think is point out to the Court how a voter registers, at least in Mendocino County, California being a small rural county of the Northwestern part of the state.

Initially, the person desiring to register makes contact with the County Clerk or Deputy County Clerk and completes a form.

That form appears in the appendix of the petitioner’s brief.

One of the questions in the form is, “Have you ever been convicted of a felony?”

If that box is checked yes, the person is given another form, a portion of which is filled out by the deputy registrar, and a portion of which is filled out by the person who has been convicted of that felony.

The person who is convicted of a felony puts down the date of the conviction, the jurisdiction where the conviction took place and the offense for which he would he or she was convicted.

That form is then forwarded to my office for my review.

Many times, I found in the past that the individuals completing the form would not give us adequate information.

And so, we’ve asked for all of that details so I can contact through the mails, the jurisdiction in which the person was convicted to get a certified copy of the conviction.

After receiving the certified copy of the conviction are then proceed to make a determination under the California case Otsuka versus Hite which is 64 Cal, 2d 594 to determine whether or not that crime is infamous as well as taking into the consideration Article II, Section III of the California constitution, and Article XX, Section XII of the California constitution.

Under those, the case of Otsuka notes two constitutional sections.

The basic crimes that we look to were murder, manslaughter, mayhem, rape, arson, robbery, burglary, larceny, embezzlement and misappropriation of public moneys, perjury, forgery, malfeasance in office and bribery.

Prior to the Otsuka decision in California, any case which or any conviction which resulted in state prison sentence was considered infamous.

Otsuka modified that position.

Then sometimes on occasion, we find that the person has been convicted of an infamous crime and I complete the form to indicate whether or not a person is disqualified and I sign the form and that form is sent back to the individual who registered.

Now, in one instance in my county after having sent that form back, an action was brought against our County Clerk, Viola Richardson, by a fellow who happened to be named David Richardson and was no relation to her.

But also in that case, I was sued and so the case in the county was James versus -- Richardson versus James and Richardson, rather than Richardson versus Richardson because they did not want it to look like a divorce action and I was the cause of the divorce.

In that case, what transpired was the plaintiff proceeded under Section 350 of the California Elections Code, requesting the court make a determination as to whether or not his conviction was infamous.

Justice Potter Stewart: Of what had he been convicted?

Mr. Duncan M. James: He was convicted of burglary in the second degree and he had served his sentence in state prison.

He had spent about 18 months in state prison.

I believe that conviction carries indeterminate term of six months to 10 years in California and the court in that case decided that under the Otsuka decision that that crime wasn’t that infamous and that Mr. Richardson wasn’t that disqualified from the right to vote.

That case is presently pending in the California Court of Appeals by stipulation of counsel that it is awaiting the final determination in this case.

Justice Potter Stewart: How many of these applications of -- how many these people -- how many applications to register in which turns out to somebody has been convicted of a felony, do you get in Mendocino County in the courts for a year?

Mr. Duncan M. James: Well, in Mendocino County, first let me say, we have approximate 25,000 registered voters.

The population of county is around 60,000.

Justice Potter Stewart: It is a relatively small county in California.

Mr. Duncan M. James: That is right.

There are about 30 counties though that are or 25 counties that are smaller than this.

In the course of a year, I would imagine I receive no more than a dozen or 18.

Justice William O. Douglas: Would the constitutional question be different if there was only one?

Mr. Duncan M. James: No, I don’t believe so.

Justice Harry A. Blackmun: Do you have any idea how many we are talking about in the entire state annually?

Mr. Duncan M. James: That attempt to register?

Justice Harry A. Blackmun: Yes.

Mr. Duncan M. James: No, I could not tell you.

Justice Thurgood Marshall: Well, it doesn’t include all those who would register if it had been known about it.

Now, that’s well known that you wouldn’t register if they have been guilty of a crime than why bother to register?

Mr. Duncan M. James: I agree and --

Justice Thurgood Marshall: Sure, there’s no accurate figure out of the (Inaudible)

Mr. Duncan M. James: No, I don’t believe they are in a state wide basis.

I can only speak as to my particular county and since we have --

Justice Thurgood Marshall: Well, do you have any convicted people or any appearance?

Mr. Duncan M. James: Excuse me I didn’t hear the question.

Justice Thurgood Marshall: I know how many people in your county convicted (Inaudible) go to vote?

Mr. Duncan M. James: On a per year basis?

Justice Thurgood Marshall: Do you know how many?

Mr. Duncan M. James: We convict the approximately 250 people --

Justice Thurgood Marshall: Well, how many people move in there from someplace else?

Mr. Duncan M. James: I can’t tell you our county [Laughter] is full of beautiful Redwoods in which a great number of people live a very simple life and these people; we do not know who is involved or anything.

I will tell you in Richardson as the result of the Richardson versus James case, as the result of the Ramirez versus Brown case, David Richardson was able to register to vote since there was no stay order and we had no way of knowing whether or not this Court will grant a certiorari to California decision is in effect.

Justice William H. Rehnquist: Was that a judgment of Superior Court of Mendocino County?

Mr. Duncan M. James: Yes, it was.

Justice Potter Stewart: Now, of this 1218 you say that you estimate you got a year, how many of these convicted felons which you estimate that you say fall under the exceptions in Otsuka or at least the definition in Otsuka that you respond by permitting him to register and vote, half of them or one third of them or none of them or what?

Mr. Duncan M. James: Well, certainly --

Justice Potter Stewart: Because I understand it made the statutory definition much more flexible?

Mr. Duncan M. James: Yes, it did.

Justice Potter Stewart: And gave to people in your position considerable discretion?

Mr. Duncan M. James: Yes, it did.

Justice Potter Stewart: Which is exercised differently by different District Attorneys in the various county’s we're told in these briefs?

Mr. Duncan M. James: Well, let me point this out --

Justice Potter Stewart: But first, if you try to answer my question, that would be nice of you.

Mr. Duncan M. James: Okay, I would say of the amount the people that apply to vote maybe 25% fall into the crimes that aren’t set forth in Otsuka the constitution provision.

Most of them seemed to be burglary or a forgery.

Like the last one I had was just before I came back here and it was forgery conviction.

Justice Potter Stewart: And either forgery or burglary in your view makes a man ineligible to register and vote in your county?

Mr. Duncan M. James: Yes, Mr. Justice.

It is because of Article XX, Section XI of the California Constitution, it specifically names forgery and it is because the Footnote 10 in Otsuka that specifically names burglary as being infamous crimes.

Now, I am simply looking to what Otsuka did say and what the constitution did say prior to Ramirez versus Brown decision.

Justice Potter Stewart: So as far as you know is a convicted is any -- a person convicted a either forgery or burglary permitted to vote in any county in the state?

Mr. Duncan M. James: It’s my understanding from the briefs filed by respondents that yes, some counties do permit it.

What happened is Otsuka created a confusion throughout the county.

Justice Potter Stewart: Right.

Mr. Duncan M. James: I would imagine some of the county counsels did not look to or any further than Otsuka for an interpretation.

Like I did do approximately five years ago when I first became involved in this as District Attorney.

Justice Potter Stewart: Otsuka was decided in what year?

Mr. Duncan M. James: I believe 1966.

Justice Potter Stewart: Right.

How many counties are there in the state?

Mr. Duncan M. James: There’s 58 counties.

Now, as I pointed out, Mr. David Richardson proceeded under Section 350 of the Elections Code to make a determination.

In the briefs for petitioner, I mean, excuse me for respondents, they argued that there innumerable where they have been no violations since around 1906 and 1920 I believe.

I’d like to point out to the court that at least excepting with Mr. Justice Mosk of the California Supreme Court said as being true that there over 250 violations of the Elections Code.

I would submit that most of the violations in the Elections Code that constitute misdemeanors and California of course would not disenfranchise a person.

They point out that or respondent points out in its brief that the possibility of voter fraud is almost nonexistent anymore.

However, in the less Metropolitan counties of California, we don’t have such sophisticated equipment as voting machines where you go in and apparently you pull levers and then you pull the arm at one end just like working in the one -- I hate to use the analogy, but like one arm bandit in Nevada, we don’t have that.

We have a little marker that has little X that we go in and we press in different little spots with our own hand.

In Footnote 26, respondents argued that even though California says that any person who is elector under Section 275 of the Government Code says any elector in State of California is entitled the hold office.

They say that its fine because under our present system of politics throughout the nation as well as throughout California, a person who would have a felony conviction that would easilably -- easily found and I’d like to set that aside for a minute because in my county disregarding nine Justice Court judges and two Superior Court judges, there are 11 elected officials.

At the last election, only two of those 11 had any opposition to office.

The two that did was the Sheriff and the Treasurer, none of the others did and there was no way for --

Chief Justice Warren E. Burger: How is this relevant to what to goes on in Los Angeles County for example?

Mr. Duncan M. James: Well, --

Chief Justice Warren E. Burger: I am not sure I get your point.

Mr. Duncan M. James: Throughout California, many elected officials occasionally do have opposition and there is basically no way to find out if a man had been convicted of felony because in California under Section 1203.4, I believe or the 1203.3 of the California Penal Code are record to be expunged and a person no longer is checking a box that says, “Yes, I have been convicted of a felony.”

They can now say, "No" and so they talk about it’s easy to discover and we submit that it’s not as easy as they would let it to be represented to be.

Chief Justice Warren E. Burger: Mr. Roth.

Argument of George J. Roth

Mr. George J. Roth: Mr. Chief Justice and may it please the Court.

I come with what I think is a difficult case in this respect.

Sociologically, everything is against our position in California because of the Otsuka decision is unquestionably true, then in 58 counties, you had 58 different interpretations of what was an infamous crime.

Historically, there is no question that a compelling state interest to protect the ballot box is no longer necessary at least and I agree with what the respondents have set forth.

But the one thing that I come with is the constitution of the United States and that Section 2 of the Fourteenth Amendment.

Now, I think that that is really the issue here is to whether or not this Court is going to take an area of the constitution.

It’s implied, but it’s so clearly implied that it’s almost direct and say that this Court will say that sociologically, it’s good and consequently we should say that Section 2 of the Fourteenth Amendment does not apply to this particular problem.

Now, as I see it, in reading the many pages of the globe, right in the beginning, everybody who ever mentioned the problem, except for rebellion or other crimes, did so in a matter of fact way because that was the accepted tenure of the time, but it was written into the Fourteenth Amendment.

Unquestionably, the Fourteenth Amendment was to prevent all discrimination because of grace.

I don’t think there is any question of that.

But I think as you read this, to the people who worked down the Fourteenth Amendment wanted to be sure that the states still would have a little bit of a leverage where criminals are concerned.

Now, in California, we don’t say, they used to say in our constitution what the criminal be disenfranchised forever, and our constitution is now changed.

Justice Mosk in his opinion in the case below said that he didn’t think that was too important.

But I think it is because our constitution now says that the legislature shall pass laws which will disenfranchise people for certain purposes and among those purposes named are perjury, bribery, malfeasance in office, embezzlement of public funds, and then they use language which I don’t understand anymore, infamous crime and high crime.

If this Court rules in our favor, in California, we will be back in the position that’s true that we were at the time of the Otsuka case right after or right (Inaudible) well, right after.

It will be in a confusion --

Chief Justice Warren E. Burger: Isn’t that the confusion that the State of California can resolve for itself?

Mr. George J. Roth: That is exactly our position Your Honor.

We believe that the state legislates you can resolve that position by defining these crimes now that the --

Chief Justice Warren E. Burger: Without the Supreme Court?

Mr. George J. Roth: Well, the State Supreme Court has said that the words infamous crime and high crime are practically undefinable for all purposes as I see it in Otsuka.

Then, they went on to say that our constitution was unconstitutional under the Fourteenth Amendment.

Justice William J. Brennan: Well, under your State Constitution if the legislature were to define infamous crime, would that create a problem for your California courts?

Whether that definition really --

Mr. George J. Roth: It might Your Honor.

Our court is a very activist court.

I’d like to think they are about two weeks ahead of this Court and they create problems.[Attempt to Laughter]

Definition wise, I think if the definitions were specific, why this -- if this Court upholds the constitutionality of the principle, I don’t know what our Court would do.

I hope they would rule that if the voters change the constitution or if the legislature acted under the constitution, I hope they rule if they were correct.

Chief Justice Warren E. Burger: Was there any doubt about the power and the authority of the Supreme Court of California to define in its own way what infamous crime means?

Mr. George J. Roth: No, but they haven’t done it Your Honor.

Chief Justice Warren E. Burger: But there’s any doubt about their power, that is all?

Mr. George J. Roth: Oh no, I believe they have the power to do it Your Honor.

I think that’s clear.

Justice Potter Stewart: Mr. Roth?

Mr. George J. Roth: Yes sir.

Justice Potter Stewart: Mr. Roth, I’m looking at exhibit 1 of the -- where is it -- in the -- to the petition for writ of mandate which appears on page 28 of the appendix which is a report of the Secretary of State of California regarding the right to vote of ex-felons in California dated May 30, 1972, which indicates as you know been denied that there was been extraordinarily uneven application?

Mr. George J. Roth: No question.

Justice Potter Stewart: In fact in the various county of a state, for example, the crime of murder disqualifies a person from voting in at least four counties but does not disqualified in at least six counties.

Sale of drugs disqualifies an applicant of at least 5 counties but not in at least at nine counties and so on, you’re familiar I know with that report.

Mr. George J. Roth: Yes Your Honor.

Justice Potter Stewart: That is part of the record in this case.

So, even if you’re wholly correct in your understanding of second part of the Fourteenth Amendment and that a state could constitutionally by all convicted felons from registering and voting.

Does that really answer the equal protection problem inherit in the Secretary’s States report?

Mr. George J. Roth: No.

The court --

Justice Potter Stewart: In California in fact it does not that it allows -- this petitioner was or rather this respondent was convicted of what, burglary, was it?

Mr. George J. Roth: Well, there’s three.

One is burglary, one is forgery and one man was convicted of the possession of heroin.

Justice Potter Stewart: Right, and all three of those respondents would have been allowed to vote in some of the counties in California?

Mr. George J. Roth: Correct.

Justice Potter Stewart: And they have not been allowed to vote in your county.

Now, regardless of the power of California to bar every convicted felon from voting if even handedly applied, doesn’t this basic equal protection problem still exist, even if you’re quite right in your interpretation of the second part of the Fourteenth Amendment?

Mr. George J. Roth: Well, I believe Your Honor that we spoke on to that in the final part of our amicus brief and that is the idea that although the application itself as it exists at the present time maybe wrong or was wrong until --

Justice Potter Stewart: To be unconstitutional?

Mr. George J. Roth: Maybe unconstitutional.

I think there’s a difference between the application and what the California Supreme Court or the California legislature may do to make it constitutional and I think that --

Justice Potter Stewart: They haven’t done it so far?

Mr. George J. Roth: No, they have not.

Justice Potter Stewart: And you don’t follow the facts that it would be accuracy of the Secretary of the State's report?

Mr. George J. Roth: No, absolutely not.

That’s why I said this was a tough case besides guarding.

But I think that the accuracy is there.

I think most of the historical facts is no problem with, but it is a problem of as I see it, letting our legislature have a chance to do something.

Well, let our State Supreme Court do something.

Chief Justice Warren E. Burger: But they had their opportunity here?

Mr. George J. Roth: They did, but they didn’t take it.

Justice Potter Stewart: And it is true is it not that these respondents, all of them would have been allowed to vote in some counties in California?

Mr. George J. Roth: I agree heartedly Your Honor.

Justice Byron R. White: Although if we were to affirm it here on that narrow ground, would that preclude your legislature then?

Is that being in time workup some uniform definition?

Mr. George J. Roth: Not if the ground was that there was no definition, no Your honor.

Justice Byron R. White: But that would still leave unresolved the basic problem, unless that it was just assumed that you had out, unless we said you had --

Mr. George J. Roth: Well, that is right if you say we have it.

I believe we have it.

Justice William H. Rehnquist: We said nothing you’d still be bound by the Supreme Court of California decision?

Mr. George J. Roth: That’s right.

Unknown Speaker: But, the (Inaudible) here.

Mr. George J. Roth: That's correct, unless we amended our constitution, that's correct, Your Honor.

Justice William H. Rehnquist: And get around the Supreme Court of California decision by amending the California Constitution, I would think is they say was a federal constitutional violation.

Mr. George J. Roth: If they said it was, and then we amended case then just again, we might possibly get a decision differently, Your Honor.

I hopeful --

Justice Byron R. White: You rather have it done.

Mr. George J. Roth: I’d rather have it not, Your Honor.(Attempt to Laughter]

Justice Thurgood Marshall: What do you want other than (Inaudible) the opinion from this Court?

What do you want other than that?

Mr. George J. Roth: Not very much, Your Honor.

And I know the Court does --

Justice Thurgood Marshall: You mean you are just unhappy with what your Supreme Court did to you?

Mr. George J. Roth: That is true and then --

Justice Thurgood Marshall: But that makes that our problem?

Mr. George J. Roth: Well, only to the extent that nationally, this Court should rule on whether or not Section 2 of the Fourteenth Amendment is separate and a part from Section 1 or is controlled by Section 1.

Justice Thurgood Marshall: Well, that could come up with a clear cut case from one of the other 49 states and then we got it all piled up?

Mr. George J. Roth: It could, very well, Your Honor.

Justice Thurgood Marshall: Why should we take up his piled up one way or -- you admit it appears on which county you’re in?

Mr. George J. Roth: That is right.

Thank you.

Chief Justice Warren E. Burger: Mr. Glick.

Argument of Martin R. Glick

Mr. Martin R. Glick: Thank you.

Mr. Chief Justice and may it please the Court.

We represent Abram Ramirez, Eric Gill and Albert Sang Lee and other persons in California who have been convicted of a crime, who served their term in prison and successfully completed their parole in many cases in many years ago successfully completed that parole.

Now that they have been reintegrated into society, they seek their right to participate on an equal basis in the election process in California.

As has been evident here, California has completely fenced them out of the election process, but there has not been suggested any reason why there’s any state interest for having completely fenced them out of the process.

We were aware --

Chief Justice Warren E. Burger: And when you say if California is completely fenced them out, do you mean these particularly three people?

Mr. Martin R. Glick: And the persons they represent, Your Honor, of course, who would not been permitted to vote on the basis of their their prior conviction in spite of their having served their term, and have been released on parole.

Your Honors, we were aware that that their would be --

Justice Harry A. Blackmun: (Inaudible) concern of the persons such as you have just described.

You are not concern then with the convicted felon whose term has not yet expired?

Mr. Martin R. Glick: That is correct, Your Honor.

We were specific, (Inaudible) specific who limited only to those persons who were completely released from not only custody, but parole as well.

We were aware Your Honors that there would be a suggestion that perhaps this disability should continue by virtue of the fact that if it’s long existence and so although, the state we believe did not justify the burdens upon it to come forward and give a reasons for the exclusion, we went further and introduced evidence and data to we think clearly affirmatively show that this restriction which is adopted in California’s frontier days no longer make any sense.

As is discussed in our briefs and as has been almost conceded here, well, there might have been a purpose for this provision in 1849 when it was put in to the California Constitution when there was no registration, when ballots were not uniform and they could be obtained from party headquarters, and the ballot box itself was in 1850 simply a box that was formally some other sort of the container.

In San Francisco and Los Angeles, that was the situation.

In Pelayho (ph) was reported that ballot box itself was an old cracker box which had a hole in the back of it, it was discovered years later through which ballots could be slipped.

And so, the framers in the California Constitution had good reason to be concerned about the integrity of the election process and I think that concern was reflected by this exclusion in the constitution, but the process in California today could not be more different.

65% of our counties do vote by machine, but that is not the end of the matter and the other 35 counties, of course there’s registration.

They are uniform ballots with special water marks, but precincts are limited to a small number of voters per precinct.

The precinct officials are residents of the precincts.

They know the voters who are there and the California Supreme Court in reviewing the scheme concluded that the practice election, violation election fraud.

Election problems in California today would require the coordinated skills of a vast squadron of computer technicians.

In other words, they found it was virtually impossible and the statistics in California is unmistakably set out in that opinion are that there has not been a reported case of vote buying or vote selling in California since 1908.

The last reported violation in Los Angeles County which has a third approximately a third of California’s voters, the last complaint of any voter problem was in 1926 and the head of the Bureau of Criminals Statistics in California which has been in that position for 18 years stated that not one single election offense had been reported to him.

Justice William H. Rehnquist: Could that be because of this provision being on the book?

Mr. Martin R. Glick: That’s why we were quite careful, Your Honor, to point out not only that there haven’t been any, although we would suggest there would be some first offender surely, but that given the way the system operates, it’s virtually impossible that there would be any.

In other words, not only hasn’t there been in reality a danger, but the system is such that the danger is simply not present of fraud occurring.

So, we want to take care of both of those parts of it.

This change in the election process was paralleled by change in California’s Penal Code.

In 1850, when our constitution was adopted in California, there were only 8 misdemeanor offenses in the statutes dealing with election violations.

At that the time this case was decided, there were over a 150 such statutes on the books, including 76 felonies, covering such things as fraudulent registration, voting twice, bribery, intimidation and the like.

So, that the California Supreme Court contrasting that situation with the situation which this Court in Dunn versus Blumstein found adequate to deter against elections fraud as reasonable means to deal with that problem, found that if anything, our situation was even more of a protection.

Further as is noted in the record, at the time that I am standing before you this keeps changing, but at the time I’m standing before you now, 26 of the states either never disfranchise at all or automatically restore the right to vote upon the completion of sentence and either a parole or probationary type period after the sentence.

The District of Columbia does the same, according to an act of Congress which I believe was passed in 1971, and of course, some California counties under Otsuka did not disqualify practically anybody, had not disqualified anybody and these states, the District of Columbia, these counties have not reported any difficulties with their election process, any parade of horribles or in fact, any problem at all in having re-enfranchised.

Your Honor, before passing, I want to show you all parts for the case, I wanted to emphasize that there is perhaps present here, an unstated state interest if you will.

An implication that perhaps if someone’s convicted of a crime that this evidence is anti-social behavior or an evidence of some inference of moral and fitness or something of the kind, and therefore, this person should not vote.

It’s mentioned I think, almost explicitly in some of the Lower Court decisions.

I'd want to point out number one that in this record, there is not evidence or whatever, a scintilla of evidence in fact that such an inference can properly be drawn as to any of these persons let alone as to all of them.

In this country and I think the strength of the country is that we’ve never limited the franchise to persons not as to whom an inference is required, but to whom openly and a validly claim we should have an entirely different system of government or no system or whatsoever.

These persons aren’t barred from the franchise.

These persons in fact are permitted to organize political parties and run candidates for office, let alone vote and this Court I think in reviewing the voting cases, well first in the Backstrom case, this Court refused to allow an influence to be drawn from a prior conviction such that a different process for commitment for mental illness would be permitted.

The Carrington and that Cipriano and the bond cases in Evans where a claim was maybe because persons living in the National Institute of Health because persons were in the military, they might vote in a certain manner, their might block voting and harmful voting, this Court said that we all think such inferences are proper.

Secondly the sheer over breath of drawing such broad inferences as to the entire class would not be permitted especially when we are talking about voting.

And finally again I would emphasize, Your Honor, that we are talking about persons who have completed the term in prison, whatever inferences might have been drawn during the period there, the state is rehabilitating, is dealing with them.

They have completed, successfully completed and have been released from their parole.

They reintegrated into the society.

They are active citizens and as to them continuing to draw this inference years later which we do not believe would be proper even in the first instance we think would not be justified.

In fact to the contrary -- the real state interest is present in this case is the interest of rehabilitation.

The entire penal system is aimed at returning persons to a productive role in society and yet yet the time of their return, at the time when the state has passed this judgment as to release from parole, they’re screened out at the most important right or one of most important rights, the fundamental right to vote, fundamental because not only in itself because it leads to all other rights.

Chief Justice Warren E. Burger: But as I hear you, you arguing the wisdom of the policy now, aren’t you?

Mr. Martin R. Glick: No, Your Honor.

As I understand it when the right to vote or the right to participate in the election process on an equal basis is denied to citizens, the state is to come forward and demonstrate what interest it has that its furthering by screening these people out of the voting process.

Now they have suggested, perhaps integrity of the election process in terms fraud.

The Attorney General as just stated that that problem doesn’t exist in California.

The California Court found so.

I wanted before passing on to deal with this sort of implication that perhaps that there was some other state interest called moral unfitness or something of that description and to point out that this Court has not permitted those sort inference that -- and simply to dispel the notion and the comment that they’re -- perhaps you’re right, Your Honor, but there is this other state interest that is present, it’s the one of rehabilitation which the President's Commissions, the Vice President's Commissions and the ABA and the other organizations have urged.

Let me then take -- consider Section 2 because I think what we have in this case is a virtual concession that there is no state interest to deny the right.

But an argument that Section 2 of the Fourteenth Amendment nevertheless renders Section 1 inoperable and the words that are relied on in this case are the words participation and rebellion or other crime which are found in Section 2.

Now, I’ve of course reviewed the legislative history and I’ve read the many articles that have been written about the legislative history of the I believe 39th Congress which adopted this and there is clearly in reading there are no one view as to no one purpose of all of the persons who were working on putting that amendment together.

But we would suggest that a reading of the legislative history first would lead to the conclusion that participation or rebellion or other crime is really meant the deal with the problem of the rebellion and not the problem of former conviction.

Justice William J. Brennan: It is limited to the participation in the war between the states?

Mr. Martin R. Glick: Yes, Your Honor.

Justice William J. Brennan: And that’s all?

Mr. Martin R. Glick: And that’s all.

Justice William J. Brennan: And only crime is related to participation --

Mr. Martin R. Glick: Exactly.

Yes, we will conclude that for two or three reasons.

First that -- in one looks of the purpose of Section 2, it was a penalty provision to deal with the increase in representation that would occur because the emancipation of the slight was not being counted as a full vote, instead of 3/5 of the vote, this was required under Article I, Section II and so the penalty provision was needed to deal with that situation.

But boarder states as is indicated in the history, were concerned that they have just disfranchised large numbers of rebels.

So that if the penalty provisions were simply put in the way it was originally phrased, they might lose representation in the House of Representatives on account of having disfranchised these persons who participated in the rebellion.

Thus, this language relating to the rebellion came in and we suggest that was the purpose, looking at Section III again which deals with the right of former office holders who participated in the rebellion to once again become office holders, indicates once again that the rebellion was of the primary concern of the drafters.

The phrase other crime itself is quite broad.

It would clearly within its scope and encompasses felonies, misdemeanors and other crimes which no state at time was disqualifying persons for, certainly infamous crime is certainly well known to framers might have been used.

Justice William J. Brennan: Does the history show that that initial felony -- participation (Inaudible) common or other crime common?

Mr. Martin R. Glick: No Your Honor, I think that the first draft -- there were no were no reference to other crime at all and that was added later and there are some dispute about when common exactly was added but I do not -- as I read that the history is simply does not aid us very much in terms of discuss.

Justice William J. Brennan: This section have a legislative process, was there a statute which read this way?

Mr. Martin R. Glick: There was no statute that I’m aware Your Honor, that read precisely in this fashion.

The state statute is either referred to infamous crimes.

Justice William J. Brennan: Why not a federal statute?

Mr. Martin R. Glick: No, Your Honor.

I am not aware of any.

We would not rest there of course Your Honor.

We believe that that is the -- that looking at the history and what was intended and that’s the appropriate reading of the meaning of the phrase or the crime, but even if, but even if the phrase was meant to refer not just to other crimes but to felony convictions or infamous crimes rather than other crimes, again, one looks at the purpose of the Section.

The emancipated -- well, it’s clear from reading of the history that they intended to put the southern states to a choice, either emancipate, either enfranchise the persons who have been emancipated or suffer a reduction in your congressional representation by not being allowed to count them at all.

That this was the purpose and that in devising a formula to accomplish this penalty, they simply placed in the clause those restrictions; some of the restrictions that were generally in effect at that time.

There is not any evidence in the debate that there was any discussion whatsoever or what would or would not be appropriate voter qualifications.

Why these were put in and some others were omitted or any discussion that would lead to the conclusion that this was an attempt or there was any intent here to make decisions about these matters, but what I think does follow logically from the history is that they wanted to accomplish the penalty and so they need the state in general broad terms to protect the status quo if you will in the north especially so that there would be no change between those states, they simply state those -- statement of those qualifications and then accomplish the penalty purpose.

Justice Lewis F. Powell: Mr. Glick.

Mr. Martin R. Glick: Yes, Your Honor, yes Mr. Justice Powell.

Justice Lewis F. Powell: Does your reading of history indicate while at the time the Fourteenth Amendment was adapted some or most of the states had laws on this subject?

Mr. Martin R. Glick: Yes, Your Honor.

I believe that it would be fair to say that the majority of the state perhaps even close to three quarters of the states did have in their statutes voter qualifications that would restrict the franchise from those who had been convicted of infamous crimes, that's the general phraseology at the time.

Some states however do not.

Of course, there are many other voter qualifications that existed such as property qualifications which I think were even more uniform in their appearance in state constitutions.

And again, I think this from the simple listing here which is not at all inclusive listing that and with no discussion of the what should and should not appear there that it would be and just one says could not conclude that was the intent and at this Court I believe quite property in prior cases has refused to read Section 2 which was intended as a penalty as entirely preempting Section 1 as was the argument before this Court for sometime.

Justice Harry A. Blackmun: Do I sense that you to say -- suggest earlier Mr. Glick that the language of Section 3 shall have engaged in insurrection or prejudice against the same of giving aid or comfort to the enemies thereof cast a gloss on Section 2?

Mr. Martin R. Glick: Yes, I think it does Your Honor.

I think that it indicates what they were concerned about.

Chief Justice Warren E. Burger: You mean they were not concerned about the limitation or other crimes?

Mr. Martin R. Glick: Well, Your Honor, of course it is a manner of interpretation and there is no clear answer and I wouldn’t suggest that there is.

All I am suggesting is that by virtue of board phraseology of the crime, by virtue --

Chief Justice Warren E. Burger: Don't you think the phrase or other crime is quite clear?

Mr. Martin R. Glick: I do not think so Your Honor because I think --

Chief Justice Warren E. Burger: What do you think it means or where does the confusion lie?

Mr. Martin R. Glick: I am sorry.

I think in this context, it means other crimes related to the rebellion.

I think they would have chosen the term infamous crime if that's what they meant.

I don’t that that was -- there is nothing to indicate that they discussed it.

I do not think that’s what they meant.

Chief Justice Warren E. Burger: If you don’t think it was recognition that 3/4 of the states are already barred voting for persons convicted of their crimes than rebellion?

Mr. Martin R. Glick: No, I want to be quite fair.

It certainly could be.

I do not think that it was and I do not think that is the best reading of the language, but it is clearly open to your interpretation.

It seems to that the phraseology chosen, the history indicates the concern for the rebellion, not the any other concern that the more consistent reading of it with that history is that it did not intend to embrace it.

But again, if I might emphasize to the Court, I believe that either reading which the Court would give to it would not lead to the conclusion which petitioners urge that the penalty provision here which was the clear intent of Section 2 should be read as modifying or nullifying as has been argued previously and objected in this Court, that the scope is --

Justice William J. Brennan: In other words, that is an argument that whatever might be its breadth, it relates only to the diminution of representation?

Mr. Martin R. Glick: We believe so Your Honor, yes.

Justice William J. Brennan: And that leading -- standing independently Section 1 on the equal protection clause?

Mr. Martin R. Glick: Correct.

Justice William H. Rehnquist: I suppose your argument (Inaudible) by the fact that though the expression chosen is participation in crime rather than conviction of crime which and I take it the disqualifying statutes in the states then is now spoke terms of conviction rather than just participation?

Mr. Martin R. Glick: That is correct Your Honor, yes.

Justice Harry A. Blackmun: Rather it is a -- but it might be a critical case next term if you should prevail here, what about the convicted felon who is still in your state penitentiary?

Well, you think he should have a right to vote on your general philosophy?

Mr. Martin R. Glick: Your Honor, we think there are significant differences in the person who is in prison and I think it would depend on how those -- and the facts in that case and in that particular state were set out, but let me point out that some of those differences.

Of course, the person in prison is under 24-hour confinement and under a fairly regimented control of the state.

Not only of the state but I think studies have indicated that other inmates, there’s a society of other inmates and certain influences that might be exerted in the prison context which may or may not a present dangers to the ballot box.

There’s of course problems of access to information to cast an intelligent ballot which is clearly a state interest.

There might be again taking the particular state and the particular facts difficulty in conducting the election in prison or dealing with the election in prison.

And of course, the state has wide latitude in its effort towards the rehabilitation, in the conduct of its programs behind prison walls and so we would suggest there are many, many differences in that case which again one would need to look at the facts in the particular state --

Justice Harry A. Blackmun: Apparently the state in this very case asked your Supreme Court to reaffirm I gather long standing case, holding that you could disenfranchise incarcerated felons?

Mr. Martin R. Glick: That’s correct Your Honor, and there was no dispute about that below --

Justice Harry A. Blackmun: Footnote 18, leave that open or simply declined the invitation of the State desire?

Mr. Martin R. Glick: I think in fairness Your Honor, it was pointed out over and over again at the beginning and the state came forward to emphasis the fact that this case simply doesn’t involve the issue.

All of these petitioners are prisoners who successfully completed their parole.

Petitioner Ramirez --

Justice Harry A. Blackmun: Well, I gather that's the ground on which the Supreme Court decline to --

Mr. Martin R. Glick: That is right, and petitioner Ramirez successfully completed his parole 20 years ago.

He's only been incarcerated for three months to begin with.

Finally Your Honor, the Court has already commented through its questions, I believe on second, we believe to be independent ground on which this Court could and should sustain the decision of California Supreme Court and that is the fact where one resided was the determinant of whether one could vote.

Justice Harry A. Blackmun: Is that really so?

Does this case gets to us? Can we possibly avoid?

As I read what your Supreme Court said in its conclusion, we conclude that it is applied to all ex-felons whose terms of incarceration and parole expired.

Provisions of Article II and Article XXVI, Section 11 of the California constitution knowing the rights of persons convicted of the crime together with the several Sections of election code violate the Equal Protection Clause.

Now, can we possibly sustain this on the disparity and definition of infamous crime among the counties and face an admiralty?

Mr. Martin R. Glick: Perhaps, I should have been more clear Your Honor.

I think that for California’s purposes, that question needs to be reached.

What I was asserting is that even if, obviously we don’t believe the Court should, even if the Court should decide adversely to us on the issue of former felons who have been released from prison and parole voting, that nevertheless the California scheme is unconstitutional --

Justice Harry A. Blackmun: Even if we facially in other words?

Mr. Martin R. Glick: Precisely.

Justice Harry A. Blackmun: The California Constitution of Prisons do not violate equal protection?

Mr. Martin R. Glick: Precisely.

Justice Harry A. Blackmun: Even if we agree with that, we then we have to go on and reach --

Justice Byron R. White: We wouldn't because the California Court didn’t deal with that question and normally, we -- don’t we give -- normally, we let the state Court pass on the constitutional issue in the first instance, we would remand, leaving that open I suppose?

Mr. Martin R. Glick: Your Honor, I would suggest that since the question is a Federal question since it was fully argued before the court below, it is the question that rises solely --

Justice Byron R. White: But ain't that arises, right?

Mr. Martin R. Glick: It arises solely.

They did decide under the --

Justice Byron R. White: Court right.

Mr. Martin R. Glick: They did decide Your Honor respectfully under the Fourteenth Amendment, there were violations.

Justice Byron R. White: (Inaudible) decide this question?

Mr. Martin R. Glick: They certainly did not base their decision on the discussion of that.

Justice Byron R. White: But under the statute, we normally only review questions -- constitutional questions that had been decided by the State Court?

Mr. Martin R. Glick: I recognize Your Honor that this Court clearly has wide latitude to deal with the problem.

I would only suggest that it is a federal question that was fully presented to the court and could be resolved by this Court.

I believe that the Court from my understanding is fully acquainted with the facts in regard to argument, so thank you very much and respectfully -- oh, I am sorry.

Justice Potter Stewart: I just -- perhaps we should carry this on private, but we [Laughter] we view judgments here and not opinions and the judgment of the California Supreme Court was that the statute is invalid under the Equal Protection Clause.

And we can affirm that on the basis that it is invalid under the Equal Protection Clause because of its wholly uneven and like a precious enforcement in the different counties of the State of California without either agreeing or disagreeing with the opinion of the Supreme Court of California.

Mr. Martin R. Glick: There's a --

Justice Potter Stewart: I’m sure you’re going to say yes of course, we could do that because we could do whatever five votes [Laughter]

Mr. Martin R. Glick: Your Honor, I would only point out that the three petitions -- three named petitioners in this case are now registered.

They have voted.

They obviously had the consent to vote.

They would be -- I need not to my point out certainly disappointed if it came back to California Supreme Court for another reading and we feel that there was a denial of equal protection here to them under the California scheme, that there was a denial and at the state, there’s simply no state interest has been advanced that suggests that this disqualification in California today makes any sense.

So, we would urge the affirmance of that decision.

Thank you, Your Honor.

Chief Justice Warren E. Burger: Thank you gentlemen.

I see, you have a few minutes left Mr. James.

Rebuttal of Duncan M. James

Mr. Duncan M. James: One of the questions that was asked a few minutes ago was whether or not there was statute, a federal statute that went along with the Fourteenth Amendment.

What I’d like to bring to attention of the Court is 2 US Code Section 6 which is a restatement of the Fourteenth Amendment, Section 2 which provides for the disenfranchise.

It says you can abridge -- you cannot abridge except for crime or rebellion and I do not have the legislative history to say when that Section was passed, but I would assume that at the time the US Code Section was passed that they were not under the pressures that Mr. Glick refers to.

I'd also like to comment to the Court that in reviewing the history of the Constitution, it was interesting to read some of the comments that occurred during the arguments or hearings on the Fifteenth Amendment.

During the course of the hearings on the Fifteenth Amendment, there were quite a number of proposed amendments which included exactly the same language that we are talking about here, except for crime or other rebellion.

And I would submit that, as I believe it was Willard Warner, a representative from this State of Alabama indicated that it would seemed that the states should have the right under that small limited classification to accept from those persons the right to vote.

We submit that the Equal Protection Clause is not applied because this constitutes an exception to the Equal Protection Clause.

Section 2 clearly says, except for rebellion or other crime when they’re talking about the reduction in the representation.

Now, the Equal Protection Clause seems to act as a protection to avoid what the last part of Section 2 says that if you deny the right to vote then we’re going to reduce your representation and what the Equal Protection Clause is saying, at least, I believe it says Is, "No, we don’t want to do that."

The state is entitled to a full representation.

So if you disenfranchise a male inhabit 30 years old, we’re going to say that because of the Equal Protection Clause and because of the Twenty-sixth Amendment, this is a denial of equal protection.

So, I submit that although in California maybe as applied, there it is an unequal application.

It is not a denial of the states of right to disenfranchise.

We have heard about all these people who go through the -- or who don’t want to vote or who are afraid to go register to vote because of the Otsuka decision.

But yet as respondents indicate, something in the neighborhood of 34,000 plus persons were released from state person from 1968 to 1971.

There is a procedure under the California Penal Code to get a certificate of rehabilitation which gets back for you when you go through the administrative judicial process and up to government to get the right to vote back except for a person convicted twice separately.

Justice Thurgood Marshall: Is that free?

Mr. Duncan M. James: Excuse me?

Justice Thurgood Marshall: Is that free?

Mr. Duncan M. James: Yes, it is and in fact it provides for appointment of counsel.

Justice Thurgood Marshall: Could the layman do it?

Mr. Duncan M. James: What?

Justice Thurgood Marshall: Can the layman do it?

Mr. Duncan M. James: I would say that you cannot afford counsel, one of the sections in the 48 -- 4852 point something which is cited in our brief provides for appointment to the public defender to give it to you, to go through the Court of --

Justice Thurgood Marshall: You mean all the word the public defendant as he goes through this too?

Mr. Duncan M. James: Well, he hasn’t -- he is only done once.

In my county in five years there is only been one application for a certificate of rehabilitation.

Justice Thurgood Marshall: To rehabilitate what?

Which is good or bad?

Mr. Duncan M. James: Well, I think it’s very poor [Laughter] because the procedure is there yet nobody wants to go through it.

Respondents here never went through it.

There is no indication that they applied and were rejected by the governor.

In the same period of time, 68 through 71, only 450 filed for certificate of rehabilitation.

They’re released from prison that they are entitled to go through that procedure.

And out of those 450 --

Justice Thurgood Marshall: So, because you don’t go through it, they can’t vote?

Mr. Duncan M. James: That is right.

Justice Thurgood Marshall: So, you got additional amount --

Justice Potter Stewart: But the point is they might well prevail in their application for certificate of rehabilitation and that would be their argument if --

Justice Thurgood Marshall: Well, did enough --

Justice Potter Stewart: -- if the Supreme Court of California had required them to exhaust that remedy before coming to the court, but the Supreme Court of California didn’t and that’s a matter of state law.

There’s nothing for us to (Voice Overlap) isn’t it?

Mr. Duncan M. James: That is correct.

It was just -- the procedure is there in available for those who want to use franchise to go through the certificate of rehabilitation, and almost 63% of those that did apply were granted.

Thank you very much.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.