State v. Michael S. Henderson, Milwaukee Co. Circ. Ct. No. 10CF1101

circuit court decision (Judge Richard Sankovitz); for Henderson: Paul A. Ksicinski, SPD, Milwaukee Trial

Illegal Voting, § 12.13(1)(a) – Voting Rights Acts

Henderson is charged with illegal voting because he allegedly voted notwithstanding his status as a felon still under supervision (which would made him ineligible to vote). He raises as a defense the Voting Rights Act of 1965, 45 U.S.C. § 1973(a): the Act bars disenfranchisement “on account of race” and because, he says, he is a felon on account of race, he could not be deemed ineligible to vote. The circuit court determines, in the order linked above, that an evidentiary hearing is required. The decision’s executive summary:

These cases come before the court for a preliminary ruling on whether the defendants – two felons who were on probation supervision at the time of the 2008 fall election, who allegedly voted in that election, and who are now charged with voting fraud – should be permitted to go forward on their motion to dismiss the charges against them. … They contend that what accounts for their felony convictions – as opposed to, say, a conviction of a misdemeanor, or no conviction at all – is their race, not their wrongdoing. They say that they are felons “on account of race” and therefore they have been disqualified from voting “on account of race.” Proving this might seem like a tall order, but we don’t judge cases before the evidence is heard, unless there is no evidence.

…

… The court doesn’t take such a claim for granted. Considerable faith is invested in the integrity of our decisions, and, unless the defendants can back up their claim, their claim impugns the court’s integrity.

But neither may the claim be rejected out of hand. … As steadfastly as we cling to our commitment to justice that is color-blind we adhere to the principle that those challenging the fairness of our laws deserve their day in court. If we entertain a claim that our judgments are infected by race, we put our integrity on the line. But if we dismiss a Voting Rights Act claim without first seeing whether it can be proved, is our integrity worth defending in the first place?

A deftly crafted decision follows Judge Sankovitz’s introduction quoted immediately above. No attempt will be made at independent summary, but if you’re interested in a superb example of judicial writing at its finest – at once scholarly and accessible – read it all. (Don’t let the size of the pdf file, 29 pages, deter you; the decision reads faster than you’d think, largely because of its fluid style.)

Michael O’Hear offers his insights, at his Life Sentences Blog.