Wis lawyer: Vote fraud laws stacked against blacks

Two black men accused of voting illegally in 2008 have challenged Wisconsin’s prohibition on felon voting, saying the ban discriminates against African-Americans because they’re convicted of felonies more often than whites.

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MADISON, Wis. (AP) — Two black men accused of voting illegally in 2008 have challenged Wisconsin’s prohibition on felon voting, saying the ban discriminates against African-Americans because they’re convicted of felonies more often than whites.

The charges against Michael Henderson and Olando Maclin violate federal prohibitions on using race to deny the right to vote, their attorney, public defender Paul Ksicinski, maintains.

"The color of your skin changes how you’re charged, how you’re convicted and in a felony case how your voting rights are lost," Ksicinski said in a telephone interview.

The state Justice Department, which is handling the case along with Milwaukee prosecutors, has countered that nothing suggests state statutes intentionally discriminate against blacks and the statutes predate black suffrage in Wisconsin.

"(Henderson’s) ability to vote was forfeited not ‘on account of’ his race, and not ‘on account of’ a statistical disparity, but ‘on account of’ his own decision to commit a felony," Assistant Attorney General Mark Neuser wrote in a brief to Milwaukee County Circuit Judge Richard Sankovitz.

According to a pair of criminal complaints filed this spring, Henderson, 41, was on probation for bail jumping and Maclin, 53, was on probation for receiving stolen property, both felonies, when they voted in Milwaukee in the 2008 presidential election.

Both men knew they could not legally vote, but still signed voter registration applications attesting they were not serving a sentence for a felony conviction, the complaints said.

Ksicinski filed a motion in July asking the judge to dismiss the charges. Over the course of 58 single-spaced pages, he argues Wisconsin’s ban on felon voting was designed to prevent freed slaves from voting.

He cites several studies that have concluded blacks are more frequently arrested and incarcerated than whites in Wisconsin and elsewhere. Therefore, he argues, the state’s voting ban violates constitutional amendments that guarantee equal protection for minorities and prohibit race-based voting rights.

Wisconsin’s ban also violates the constitutional prohibition on poll taxes because felons, who are more often black, frequently must pay fines or restitution before they can complete their sentence, he continued. What’s more, the ban violates a section of the Voting Rights Act that forbids denying anyone the right to vote because of race, Ksicinski wrote.

"Once again, a court is confronted with the question of whether African Americans have rights which a white man is bound to respect," Ksicinski wrote.

Neuser wrote in a reply brief that Ksicinski’s request is "long on rhetoric (58 single-spaced pages!) and short on law."

The state has a legitimate interest in encouraging felons to complete their sentence by withholding their rights, Neuser wrote.

Ksicinski hasn’t shown the state has intentionally used the ban to deny minorities the right to vote, he added. He also pointed out a federal appeals court has ruled that requiring felons to pay restitution doesn’t amount to poll taxes.

Plus, Wisconsin’s felon voting ban was enacted in the state Constitution before blacks won the right to vote, proving the ban was aimed at white felons, Neuser wrote.

The American Civil Liberties Union’s Wisconsin chapter is leading a coalition of groups working to change state law to allow felons to vote after they’re released from prison. The group says that change could restore voting rights to 38,000 probationers and parolees.

Chris Ahmuty, the chapter’s executive director, said the chapter supports Kscinski’s clients. The ban discriminates against anyone convicted of a felony, he said.

"Even if you take away race, there’s really no good reason to penalize people who have served their time," Ahmuty said. "If you’re trying to reintegrate people into communities to reduce recidivism, you want to strengthen those bonds and get them to become responsible citizens again. Part of being a responsible citizen is becoming an informed voter."

Sankovitz is scheduled to take up the matter in November.

The case parallels a similar dispute in Washington state, where minority inmates launched a federal lawsuit in 1996 seeking the right to vote. They argued the state’s ban on felon voting discriminated against minorities.

A federal appeals court earlier this month upheld the ban, saying felons must demonstrate intentional discrimination, not just racial disparities in Washington’s criminal justice system, to challenge the prohibition.

Copyright 2010 The Associated Press.

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