Election fraud case becomes battleground

Election fraud case becomes battleground

By Matt Hrodey - Milwaukee News Buzz



Is the state law that prevents felons from voting discriminatory? The case of two Milwaukee men charged with voting illegally in the 2008 presidential election has become a forum on whether this law unjustly disenfranchises African American voters. Public defender Paul Ksicinski caused a stir this summer by filing a mammoth brief resembling a research project to argue this point.

Prosecutors allege that Michael Henderson, 41, and Olando Maclin, 53, both African Americans, were on probation for bail jumping and receiving stolen property convictions, respectively, when they voted in the election. Earlier this year, each was charged with two counts of election fraud, a felony that can bring up to three and a half years in prison. Wisconsin law prohibits a felon from voting while on parole, probation or if the felon has outstanding court fines to pay.

In June, Ksicinski asked Judge Richard Sankovitz to dismiss the case, and in support of his request, he filed a 58-page brief (with a table of contents) that argued, as summarized in its concluding pages, that although blacks have won the right to vote in Wisconsin elections, it’s “being taken back by the penal system via unjust criminal dispositions.”

Ksicinski argues that because blacks are incarcerated for felonies more often than whites, and are therefore more likely to lose their voting rights, the state ban on felons voting violates federal law that protects minority voters, most notably the Voting Rights Act, which prohibits any laws that “deny or abridge the right of any citizen of the United States to vote on account of race or color.”

The single-spaced brief cites numerous academic and government studies. There are bar and line graphs showing the rising numbers of prisoners in the United States. And in an August hearing, Sankovitz noted that the brief wasn’t double-spaced as is normally the rule in Milwaukee, meaning the true length would be 116 pages. To rule on Ksicinski’s motion to dismiss the case, the judge will have to peel back the layers of time to decide if Congress intended the Voting Rights Act to apply to cases like the ones facing Henderson and Maclin.

His remarks at the hearing didn’t bode well for Ksicinski’s case. “Having seen this very large accumulation of rhetoric about the importance of voting and the importance of making sure all of our citizens can vote,” he said, “one thing I found lacking was there wasn’t any rhetoric from any U.S. senator or any U.S. representative who ever said that the purpose of the Voting Rights Act was to prevent felon disenfranchisement.”

But later in the hearing, his tone softens. “I appreciate the effort you went to,” he says to Ksicinski. “I don’t think you get much disagreement from people … that as things stand right now, the way our system works, we are putting a lot more African Americans in prison than you would think given the number of African American people in the population … And it is a great question of our day why that is the case.”

Mark Neuser, assistant state attorney general, called Ksicinski’s arguments “breezy and superficial” in a counter-brief, arguing the public defender has presented no evidence of racial bias in the creation of the state ban on felon voting or in the state’s criminal justice system.

“Felons in Wisconsin disenfranchise themselves by committing felonies,” he says. “For many indisputably good reasons, felons do not have the opportunity to participate in the political process equally as other members of the electorate.” Neuser argues that the felon voting ban, first introduced in the state constitution in 1848, predates black suffrage, meaning it was aimed at white felons.

Ksicinski apparently dove into researching the topic after he was assigned the case. “I asked, ‘Why are we doing this in the first place?’ That’s what got me started on this,” he tells NewsBuzz. “If we were a true representative democracy, we’d have as many people vote as possible.”

He adds, “We can’t say we don’t want felons to vote because they may not vote right. We’ve institutionalized discrimination in the criminal justice system.” Ksicinski also argues that court fines and restitution can unfairly prolong the disenfranchisement of felons who can’t afford to pay them.

Sankovitz has said he will issue a decision on Ksicinski’s motion to dismiss on Nov. 19. The decision has apparently been a long and difficult one. The court has held two hearings on the issue and granted requests from the defense for more time to file briefs in the case.

In January, the Ninth Circuit Court of Appeals, a federal appellate court, ruled that Washington State’s ban on felon voting was unconstitutional and violated the Voting Rights Act. The 2-1 decision was later reconsidered by a larger panel of the court’s judges and reversed.

States vary as to the voting privileges of felons. In some states, felons can permanently lose their right to vote. Only two states, Maine and Vermont, have no restriction and allow prison inmates to vote. In about a dozen states, felons can vote once they’re released from prison. The rest have laws similar to Wisconsin’s, where felons must complete outstanding obligations such as parole or probation before voting again.