Alabama's 'moral turpitude' law has come under fire for inconsistency, racism

Martha Shearer works with Greater Birmingham Ministries, registering people to vote. The mother and grandmother received conflicting information about whether a nearly 30-year-old felony conviction would bar her from voting, under a vague Alabama law. (Courtesy of Greater Birmingham Ministries)

Martha Shearer has been voting for years.

The 53-year-old Birmingham resident works with Greater Birmingham Ministries, helping other people register to vote.

Recently, she began the process of applying for a full pardon from the state's Board of Pardons and Paroles for a single drug conviction from 26 years ago. She hoped a pardon might do what two master's degrees and a solid 20-year work history had not: open doors to higher-paying jobs.

"When I went to Pardons and Paroles to apply for a pardon, they asked if I wanted to be able to vote," said Shearer.

She told them she'd already been voting. "They told me, 'Then you've been committing fraud.'"

In Alabama, unlike most states, a felony conviction can bar a person from ever voting again.

It depends on which county you live in. And when you register. And who processes your voter registration. A burglary conviction might disqualify you in one county but not in another. Or it might have disqualified you last year, but you could get lucky this year.

In the end, one out of every 13 adults in Alabama can't vote due to a felony conviction - about 286,000 people - according to a 2016 study by the Sentencing Project.

That's nearly 8 percent of adults in Alabama and the sixth highest rate in the nation, ranking closely behind other Southern states.

"The thing about Alabama is that they're so vague about who can and can't vote," said Shearer, who did get her voting rights officially reinstated. She's still waiting to hear about her full pardon. "My brother had the same type of crime as mine, and he was (automatically) denied the right to vote."

Two states, Maine and Vermont, never take away voting rights, allowing inmates to vote from prison. Another 14 states restore voting rights upon release from prison, while more wait until the completion of parole or probation. Alabama is one of only a dozen states that doesn't automatically reinstate voting rights after a person completes a full sentence for a felony conviction.

To be even more specific, Alabama law permanently strips voting rights for those who have been convicted of a crime of "moral turpitude."

What is a crime of moral turpitude? Depends on who you ask. State law doesn't include a comprehensive list of which felonies involve moral turpitude.

Instead, the job of deciding which ex-felons get to vote falls to the three voting registrars in each of Alabama's 67 counties - 201 state-appointed people who are not required to have specific education or training in matters of law.

"The majority of registrars are not attorneys and we don't have law degrees," said Lynda Hairston, chairman of the Board of Registrars in Madison County. "But we do our best not to take anyone off (the voter rolls) that should not be taken off.

"The secretary of state is trying to get the legislature to give us a complete listing so we don't have to make that determination. It would ease our minds a lot."

It would ease confusion for voters, too. Shearer said it's impossible to know whether a felony conviction disqualifies you from voting.

"Really, it's more about whoever (at the registrar's office) gets your registration card and how detailed they want to be," she said.

"I always encourage people to register because you never know. But then, you could end up like me and they could tell you (that by voting) you've committed a crime."

Changing the law

A bipartisan group of lawmakers worked in 2015 and in 2016 to pass a bill called The Definition of Moral Turpitude Act. It would have created a comprehensive list of felonies that involve moral turpitude and established official guidelines for purging certain disqualified voters from voter registration lists.

It passed the state House of Representatives twice, only to die before the end of the legislative sessions.

"The potential for inconsistency certainly exists and that's not good," said Alabama Secretary of State John Merrill, who supported the bills both times.

Before trying to pass the bill during the 2016 legislative session, its supporters put together a "study group" that included democratic and republican legislators, advocacy groups and other stakeholders.

"I wanted to hear from everybody so we'd have the best piece of legislation we could produce," said Merrill. The bill passed the House and Senate, but a slight modification sent it to conference, where it was approved and passed again.

It died on the Senate floor the last day of the session.

There have been more successful attempts. In 2016 the state legislature passed a law that streamlines the felon rights restoration process. It also clarified that outstanding fines for unrelated court cases can't block someone from voting.

Rep. Mike Jones, chair of the House judiciary committee, plans to reintroduce the Definition of Moral Turpitude Act in the 2017 legislative session.

Merrill said one reason the bill struggled in 2016 was because it lost some of its bipartisan support. Some legislators and advocacy groups saw another solution on the horizon that had the potential to address felon disenfranchisement more broadly.

"There's a school of thought that some of those people had their own agenda," said Merrill, "and were trying to make the change (to state law) through the judicial system."

The lawsuit

Treva Thompson, 48, of Huntsville, Ala. has struggled to find and keep jobs since she was convicted in 2005 for theft of property. Her sentence then was five years' probation.

"Whenever I walked outside, I felt like people just knew," she said. "It was so hard. Every time I talked about it, I would just cry."

While her crime may not have been one of moral turpitude, she faces permanent disenfranchisement because she's unable to pay off more than $40,000 in fines and court costs - which increase with interest each year - by working minimum-wage jobs.

"I went to school, got two associates' degrees, finished high school," said Thompson, who has two adult children and three grandchildren. "I did all the right things. I said, 'I will better myself.' But still, trying to find jobs, nobody is willing to give you a chance."

Alabama's felon disenfranchisement law blocks 15 percent of Alabama's black citizens from voting who would otherwise be eligible to vote. That's seventh highest in the nation, according to the Sentencing Project. In Kentucky, 26 percent of black adults cannot vote.

"Despite significant legal changes in recent decades, over 6.1 million Americans remained disenfranchised in 2016," reads the national report. "When we break these figures down by race, it is clear that disparities in the criminal justice system are linked to disparities in political representation."

A new federal lawsuit filed in September alleges that Alabama's felon disenfranchisement law is unconstitutional and intentionally racist.

Thompson is a plaintiff in the case, along with nine other Alabamians who have past felony convictions and are unable to vote.

Danielle Lang is an attorney in the case and the deputy director of voting rights at the Campaign Legal Center, a Washington D.C.-based firm that's providing lawyers for the suit.

"I can find no other state that lacks the clarity about who has the right to vote, and that leaves the decision about who has the fundamental right to vote to the discretion of any number of individuals county by county the way Alabama does," said Lang.

The suit also argues that the state's requirement that all fines and fees associated with a conviction be paid before voting rights are restored constitutes a "modern day poll tax."

"Ms. Thompson has only one conviction in her whole life, for a theft crime, and owes $43,000 in restitutions, fines and fees," said Lang. "So for a woman who is scraping by on minimum wage jobs, trying to support her family, realistically she's never going to be able to pay back that amount. Even if she goes through the process of trying to restore her rights, she still couldn't (vote).

"The wealth of people should not determine whether they can get the right to vote back."

Lang said a key part of the suit is the restriction requiring that all fines and fees be paid, which the suit says disproportionately affects minority voters.

"Striking down that provision would allow far more people to restore their right to vote," she said.

The moral turpitude standard, which the suit claims is intentionally racially discriminatory, first appeared in Alabama's 1901 Constitution when it was more broadly applied to all crimes.

Lang said the phrase was written into to the 1901 constitution "partially because it is discretionary and arbitrary, so it allowed legislators and elected officials to weed out black voters and allow white voters to continue to vote."

The Supreme Court struck the phrase from state law in 1985, saying it violated the Equal Protection Clause.

But it reappeared in 1996, when legislators added it to the state's felony disenfranchisement law.

A vague standard like "moral turpitude" still makes it easier to purge black voters from voting lists today, said Lang.

"For example, our client Anna Reynolds just recently was told she was removed from the voter registration rolls due to a 20-year-old conviction," she said. "The New York Times reported on a similar instance as well. The woman profiled in that story was Constance Todd, our client Timothy Lanier's mother, who also was recently notified of her removal from the rolls for a very old conviction."

Merrill, the secretary of state, said there are many lawmakers in the state legislature today who wanted to see moral turpitude more clearly defined to prevent inconsistent denying of voting rights. But the lawsuit that seeks to solve the problem may have inadvertently delayed a solution as supporters backed off, waiting to see what would happen, he said.

"Sometimes you've got certain people that are reluctant to promote or advance a bill when there's pending litigation because they don't want to have advanced something that may be taken care of in the court system," said Merrill.

"So it becomes another obstacle to accomplishing your goal."

'Like everybody else'

Martha Shearer continues to register people to vote in Birmingham, heading out almost daily into the city's neighborhoods to encourage often reluctant citizens that their votes matter.

"People are saying, 'I'm not voting. There's nobody I want to vote for,'" she said. "But even if the person I vote for is not elected, at least I know I did my part. That's important to me."

A mother and now a grandmother, Shearer has voted in nearly every election, big and small, since she registered to vote. Recently, a family obligation prevented her from voting in Birmingham's city council elections. It bothered her for days afterward.

"For me, it was important to be able to vote because I wanted to feel like everybody else," she said. "I was denied the opportunity to sit on a jury because of my background. But I pay taxes and I purchased a home here and do everything else that most people are entitled to do except that one thing."