American Slavery

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Felon Disenfranchisement, the Thirteenth Amendment's “Previous Condition of Servitude,” and the Anomaly of a Candidate Who Cannot Vote for Himself

Ninth Circuit No. 16-16208 · D. Ariz. No. 3:16-cv-08008-PCT-GMS

Petition for a Writ of Certiorari filed September 18, 2017

ABSTRACT

Brian Edward Malnes, a disabled veteran wounded on the Korean DMZ and a 1991 federal bank-robbery convict who completed his sentence without further offense, sought to register to vote in Arizona and, separately, filed as an independent candidate for the United States House of Representatives from Arizona's First Congressional District. Arizona permitted the candidacy while Arizona Revised Statutes § 16-101(A)(5) barred the vote, producing a state election-law regime in which a convicted felon could be elected to Congress but could not cast a ballot for himself. The resulting suit, dismissed by the District of Arizona and affirmed by the Ninth Circuit, presented the Fifteenth Amendment's rarely litigated third clause, the bar on denying suffrage for “previous condition of servitude,” as a vehicle for arguing that the Thirteenth Amendment's punishment exception makes every completed-sentence felon a formerly involuntary servant within the meaning of the Fifteenth Amendment. The petition for certiorari also renewed an Eleventh Amendment argument under Ex Parte Young and identified a procedural gap: the district court's failure to certify the constitutional challenge to the Arizona Attorney General as required by Federal Rule of Civil Procedure 5.1 and 28 U.S.C. § 2403(b). The Supreme Court did not take up the petition, leaving each question unresolved. This note examines each argument, the doctrine the lower courts applied against it, and what the case illustrates about the unresolved reach of the Fifteenth Amendment's servitude clause.

I. Introduction

The Fifteenth Amendment names three forbidden grounds for denying the vote: race, color, and previous condition of servitude. Litigation and scholarship have concentrated almost entirely on the first two. The third clause, aimed originally at securing the franchise for the formerly enslaved, has rarely been asked to do independent work, and no court has squarely decided whether a completed felony sentence, which the Thirteenth Amendment permits to include involuntary servitude, places a person in a “previous condition of servitude” for Fifteenth Amendment purposes.

Malnes v. Arizona presented that question in an unusually pointed factual posture. Arizona's own election code allowed Malnes to run for federal office while its voter-registration statute forbade him from voting for himself or anyone else. The State's litigation position eventually conceded that the candidacy bar was unconstitutional; the voting bar was never conceded. The petition for certiorari asked the Supreme Court to resolve what the courts below did not: whether a State may maintain that asymmetry, and whether the Fifteenth Amendment's servitude clause has any operative content independent of race.

II. Factual and Procedural Background

Malnes served in the United States Army for five years and was wounded on the Demilitarized Zone between the Koreas in 1986, a wound that led to his designation as a Disabled American Veteran. In 1991 he was convicted of bank robbery in the United States District Court for the District of Utah and sentenced to thirty-seven months' custody, three years' probation, and a fine and assessment. He served the sentence, including a term of labor through the Federal Prison Industries program (UNICOR), from which a portion of his wages was applied to his debt to the United States.

On January 19, 2016, Malnes attempted to register to vote on Arizona's online voter-registration portal. Arizona law conditions registration on the applicant not having “been convicted of treason or a felony, unless restored to civil rights.” A.R.S. § 16-101(A)(5). Because Malnes's civil rights had not been restored, the registration was refused. He filed suit the following day against the State of Arizona and Secretary of State Michele Reagan, later amending to add a Fifteenth Amendment claim.

On February 1, 2016, Malnes filed as an independent candidate for the United States House of Representatives, Arizona's First Congressional District (FEC ID: H6AZ01231). A.R.S. § 16-311(A) requires that a candidate be a “qualified elector,” a status Malnes could not hold under § 16-101(A)(5). After a spokesman for the Secretary of State's office publicly questioned Malnes's qualification to run, Malnes moved for a temporary restraining order and preliminary injunction. On June 6, 2016, the State responded with a stipulated Proposed Partial Declaratory Judgment, conceding, on the authority of U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), that § 16-311(A)'s qualified-elector requirement is unconstitutional as applied to candidates for federal office. The candidacy bar fell; the registration bar under § 16-101(A)(5) did not.

The district court dismissed the remaining claims with prejudice on July 5, 2016, holding that Malnes had not alleged that § 16-101(A)(5) was adopted or applied with racially discriminatory intent, and that the Twenty-Sixth Amendment claim failed for want of an age allegation. All pending motions, including Malnes's Notices of Constitutional Challenge to a Statute filed under Federal Rule of Civil Procedure 5.1, were denied as moot without the certification to the Arizona Attorney General that Rule 5.1(b) and 28 U.S.C. § 2403(b) direct the court to make. The Ninth Circuit affirmed on June 30, 2017, without oral argument, holding the Eleventh Amendment barred the damages claims, that Malnes had not pleaded racial animus sufficient to sustain the injunctive claim against Secretary Reagan, and that matters not distinctly raised in the opening brief, which the panel treated as encompassing the Rule 5.1 certification failure, would not be considered, citing Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). Malnes, proceeding pro se throughout, petitioned the Supreme Court for a writ of certiorari on September 18, 2017. The Court did not grant the petition.

III. Issues Presented

A. The Fifteenth Amendment's Servitude Clause

The Fifteenth Amendment forbids denying the vote “on account of race, color, or previous condition of servitude.” Courts applying the Amendment to felon-disenfranchisement statutes have uniformly analyzed the race prong, asking whether the challenged law was adopted or is administered with discriminatory intent. See Farrakhan v. Gregoire, 623 F.3d 990, 993 (9th Cir. 2010) (en banc) (felon disenfranchisement laws “predat[e] the Jim Crow era and, with few notable exceptions, have not been adopted based on racial considerations”). The district court and the Ninth Circuit both applied that framework and found the complaint wanting because it did not allege discriminatory intent.

The petition's argument rests on the Amendment's third, independent clause rather than on race. The Thirteenth Amendment abolishes slavery and involuntary servitude “except as a punishment for crime whereof the party shall have been duly convicted.” A person serving a federal sentence that includes compelled prison labor, UNICOR service in Malnes's case, is, under the plain terms of that exception, in a condition of involuntary servitude. See Bailey v. Alabama, 219 U.S. 219, 241, 244 (1911) (the Thirteenth Amendment permits involuntary servitude “as a punishment for crime” and was “a charter of universal civil freedom for all persons”). The petition's syllogism follows: if the Thirteenth Amendment's exception clause describes a felon's compelled labor as involuntary servitude, and the Fifteenth Amendment forbids denying the vote on account of a “previous condition of servitude,” a State may not disenfranchise a felon who has completed that servitude on the strength of the conviction alone.

The Supreme Court's own description of the Fifteenth Amendment's structure supports treating the three clauses as textually distinct. Rice v. Cayetano, 528 U.S. 495, 511–12 (2000), states that the Amendment forbids denial of the vote “on account of race,” and separately notes that “[c]olor and previous condition of servitude, too, are forbidden criteria,” while observing that the case before it did not require the Court to consider those latter two categories. Neither the district court's opinion nor the Ninth Circuit's memorandum disposition engaged the servitude clause on its own terms. Both treated the claim as if only the race prong were available, folding the third category into the first without separate analysis.

The petition invokes the early grandfather-clause line of authority, citing the case at 238 U.S. 347 (1915) for the proposition that a facially neutral voter qualification tied to a pre-Amendment status is void where it “recur[s] to conditions existing before the adoption of the Fifteenth Amendment.” The citation is to Guinn v. United States, 238 U.S. 347 (1915), which struck down Oklahoma's grandfather clause. The petition's caption of the case is garbled, but the holding it draws on, that the Fifteenth Amendment voids qualifications keyed to a status the Amendment itself was designed to eliminate, is accurately stated. Whether a felony conviction functions the same way as the grandfather clause's ancestry test is precisely the question the lower courts declined to reach.

B. The Qualifications Clause Anomaly

Independent of the servitude-clause theory, the petition presses a structural argument built entirely from Arizona's own litigation concessions. Article I, Section 2, Clause 2 of the Constitution (the Qualifications Clause) sets exhaustive eligibility criteria for the House of Representatives: age, citizenship, and inhabitancy. States may not add to that list for federal candidates. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 827 (1995); Schaefer v. Townsend, 215 F.3d 1031 (9th Cir. 2000) (a state provision creating an absolute bar to otherwise-qualified candidates is unconstitutional). Arizona's own stipulation in this case, that A.R.S. § 16-311(A)'s qualified-elector requirement for federal candidates is unconstitutional under Thornton, is a direct application of that rule and was never disturbed on appeal.

The anomaly the petition identifies is that Arizona's concession solved only half of the problem it created. A.R.S. § 16-101(A)(5), the registration statute, remained fully enforced. The result, undisturbed by either lower court, is a regime in which Malnes could lawfully have been elected to represent Arizona's First District in Congress while remaining barred from casting a ballot in that same election. Neither opinion below addressed whether that combination is coherent, because neither claim was resolved on the merits of the anomaly itself: the candidacy claim settled by stipulation before judgment, and the voting claim was dismissed on a Fifteenth Amendment race-based pleading standard that never asked the structural question.

C. Eleventh Amendment Immunity and Ex Parte Young

The Ninth Circuit affirmed dismissal of the damages claims against Secretary Reagan in her official capacity and against the State outright as barred by sovereign immunity, citing Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 2003). That holding is unremarkable: the Eleventh Amendment bars damages claims against a State and against its officers acting in their official capacity, and the district court had already limited the case to prospective relief against Secretary Reagan under Edelman v. Jordan, 415 U.S. 651, 664, 677–78 (1974).

The petition's Eleventh Amendment argument is narrower than the lower courts' framing suggests: it does not quarrel with the dismissal of the damages claims, but argues that the injunctive claim against Secretary Reagan in her official capacity, the claim Edelman and Ex Parte Young, 209 U.S. 123, 159–60 (1908), permit, was ultimately dismissed on the merits, for failure to plead racial animus, rather than on immunity grounds, and that Scheuer v. Rhodes, 416 U.S. 232 (1974), required that Malnes be given an opportunity through amendment to develop that claim before dismissal with prejudice. That is a pleading-standard argument dressed in Eleventh Amendment authority. It is best understood as reinforcing the Part III.A argument that the courts below applied the wrong substantive test, rather than as an independent immunity holding a reviewing court would need to revisit.

D. The Rule 5.1 Certification Gap

The most procedurally concrete claim in the petition is also the easiest to verify against the record: Malnes filed two Notices of Constitutional Challenge to a Statute, on March 1 and March 22, 2016, invoking Federal Rule of Civil Procedure 5.1. That Rule requires a party challenging a state statute's constitutionality to notify the court, and separately requires the court, under Rule 5.1(b) and 28 U.S.C. § 2403(b), to certify the challenge to the state attorney general and permit the State to intervene on the constitutional question. No such certification appears on the docket of either lower court. 

The district court instead denied the notices as moot when it dismissed the case, and the Ninth Circuit treated the argument as forfeited under Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009), for not having been distinctly raised in the opening brief.

Rule 5.1's certification duty runs to the court, not to the litigant, once a party has given notice. A pro se notice that triggers no certification, and an appellate forfeiture rule that treats the district court's own oversight as the appellant's waiver, leaves the Rule with no mechanism of enforcement in a case exactly like this one: a pro se constitutional challenge to a state election statute, the paradigm case the certification requirement exists to route to the state's law officers. Whether an unfulfilled Rule 5.1(b) obligation is reviewable despite imperfect appellate briefing is a question distinct from, and narrower than, the Fifteenth Amendment merits question, but it goes to whether pro se constitutional litigants can get a state statute's constitutionality tested at all.

IV. Significance for the Prisoner Class

The servitude clause argument, if adopted, would not abolish felon disenfranchisement; it would require courts to ask a different question than the one now asked. Under the race-only framework applied below, a State needs only avoid discriminatory intent to disenfranchise felons indefinitely. Under the servitude-clause reading the petition advances, a State would additionally have to reckon with the fact that its own Thirteenth Amendment permits felon labor to be called involuntary servitude, and that the Fifteenth Amendment names a completed “previous condition of servitude” as a forbidden basis for withholding the vote. The prisoner class is not race-neutral in composition, so this reading would carry racial consequences in practice, but it would supply a textual hook independent of proof of discriminatory intent, the showing that has defeated nearly every disenfranchisement challenge since Richardson v. Ramirez, 418 U.S. 24 (1974).

The Qualifications Clause anomaly has a narrower but more immediately usable significance. Any State that disenfranchises felons while also enforcing a qualified-elector requirement for federal candidates is exposed, by its own concession once litigated, to the same asymmetry Arizona conceded here: eligibility to serve in Congress without eligibility to vote for that office. That asymmetry does not depend on the servitude-clause theory and can be raised in any jurisdiction with a comparable statutory pairing.

The Rule 5.1 problem, finally, is not confined to felon-disenfranchisement litigation. It recurs wherever a pro se litigant challenges a state statute's constitutionality and the district court disposes of the case without certifying the challenge to the state's attorney general. A rule under which that omission becomes the litigant's forfeiture, rather than the court's unperformed duty, systematically disadvantages the unrepresented litigants who are least likely to secure appellate review of the point through polished briefing.

V. Conclusion

The Supreme Court did not take up the petition. No argument was heard and no opinion issued; the case ended, as the overwhelming majority of certiorari petitions do, without a recorded reason. A denial of certiorari carries no precedential weight and says nothing about the merits of the servitude-clause argument. The Fifteenth Amendment has three clauses. Nearly a century and a half after ratification, only one of them, race, has been given sustained judicial content. Malnes's case asked what happens when a litigant takes the other two seriously: a Disabled American Veteran, wounded in defense of the Constitution he later invoked, barred from voting under a statute that permitted his election to write it. The lower courts answered by applying a test built for a different clause. The question the servitude clause actually poses was never reached, by any court, and remains open for the next case to present it.

This case note was prepared by the Prisoner Theory Institute.

Ninth Circuit No. 16-16208 · Petition for a Writ of Certiorari filed September 18, 2017 · certiorari not granted