A Baton Rouge-based state appeals court wrestled Tuesday with the thorny legal question of whether felons on probation and parole should be allowed to vote in Louisiana.
Attorneys for the state and a group of felons challenging current Louisiana law debated the phrase "under an order of imprisonment" before a three-judge panel of the state 1st Circuit Court of Appeal at the LSU Law Center.
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The 1974 Louisiana Constitution bars people "under an order of imprisonment" for a felony conviction from voting. A 1976 state law that is under attack expanded the definition of that phrase, saying felons on probation and parole cannot vote.
Bill Quigley, who represents a group of felons who challenged the 1976 law, argued Tuesday that the plain language and meaning of "under an order of imprisonment" should control the outcome of the case.
"Imprisonment means you are in prison," he told Circuit Judges Toni Higginbotham, Allison Penzato and Guy Holdridge. "You are not under an order of imprisonment (if on probation or parole) because you are not in prison."
Lani Durio, an attorney for Louisiana Secretary of State Tom Schedler, argued to the appellate court panel that the dispute is a question of law, not semantics.
"You can define imprisonment all you want," she said. "`Under an order of imprisonment' means more than imprisoned. `Under an order of imprisonment' does not mean actual imprisonment."
The state contends that felons on probation or parole remain under an order of imprisonment because they can be sent back behind bars if they violate the terms or conditions of their probation or parole.
Quigley, while arguing to the 1st Circuit panel, called that reasoning a "tortured interpretation."
The panel took Tuesday's arguments under advisement.
The American Probation and Parole Association has sided with the felons, arguing in documents filed in the case that the same is true of people who are on probation without ever serving any jail time. If those people violate the conditions of their probation they may be sent to prison, according to the association of probation and parole officers.
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Seventeen professors from the law schools at LSU, Southern and Tulane universities, and Loyola University New Orleans also have called on the 1st Circuit to "protect the constitutional right to vote for the non-incarcerated, including probationers and parolees."
The plaintiffs in the case — a handful of felons and a group called Voice of the Ex-Offender — say the 1976 state law is preventing more than 70,000 felons on probation and parole in Louisiana from voting.
Holdridge peppered Quigley and Durio with questions from the bench.
In one exchange with the judge, Quigley argued that a person on parole is no longer under an order of imprisonment.
"What changes the order of imprisonment?" Holdridge asked. "The order doesn't change. The judge doesn't issue another order."
Holdridge later posed a hypothetical to Durio: If a person is sentenced to five years in prison, but the judge suspends the sentence and puts the person on supervised probation for five years, when can that person vote?
Durio responded that the person can vote when the period of probation has been completed.
Holdridge disagreed, saying that the order of imprisonment is over at the time the judge suspends the sentence.
Durio acknowledged there are people on probation in Louisiana who are voting, but who were not first sent to prison.
Holdridge asked Durio why the panel should not simply send the case back to state District Judge Tim Kelley for a full evidentiary hearing with testimony.
"Because this is a question of law," Durio replied.
Kelley reluctantly upheld the 1976 law last year, saying he agreed with the plaintiffs but could not bend the law.
A Baton Rouge state judge on Monday reluctantly upheld a 1976 Louisiana law that prohibits roughly 71,000 felons on probation and parole from voting.
"They should be voting," Quigley said to the 1st Circuit panel of felons on probation and parole. "They should be voting today."