American Slavery

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QUESTIONS PRESENTED in: 

MALNES v. ARIZONA No. 17-480 U.S. Supreme Court

PETITION FOR A WRIT OF CERTIORARI

In 1991, Petitioner Brian Edward Malnes was convicted of bank robbery in the United States District Court District of Utah.  Prior to this conviction Malnes was an honorably discharged veteran of the Army. During Malnes’ five years of service he was wounded on the Demilitarized Zone between the Koreas in 1986. The result of this combat wound led to Malnes being designated a Disabled American Veteran. 

As a result of Malnes’ conviction he is unable to vote in the State of Arizona’s elections due to A.R.S. § 16-101(A)(5), which states: “Every resident of the state is qualified to register to vote if he: Has not been convicted of treason or a felony, unless restored to civil rights.” 

The questions presented are:

1. Whether A.R.S. § 16-101(A)(5) is in violation of the Fifteenth Amendment, Section 1 to the U.S. Constitution, which states: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

2. Whether the Thirteenth Amendment, Section 1 to the U.S. Constitution, which states: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction,” describes all ex-felons as slaves/involuntary servants, and thus protected under the Fifteenth Amendment’s language: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude,” which adds the following: “or previous condition of servitude.” An assurance that all ex-felons were involuntary servants/peons according to the Thirteenth Amendment and thus have of the right to vote as provided by the Fifteenth Amendment.

3. Whether the Eleventh Amendment to the U.S. Constitution, which states: “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state,” conforms to the Founder’s objective in constructing the U.S. Constitution. The Petitioner cannot vote, thus he is taxed without representation. How else can Malnes address the violations of his Constitutional rights against a State without lawsuit? Did not the Founders create this process? The Founders would see the Petitioner’s suit as a logical address of his civil rights. Malnes cannot vote, thus eliminating all other recourse to protect his civil rights save the lawsuit under appeal.

STATEMENT OF THE CASE

1. The Petitioner Brian Edward Malnes, on January 19, 2016, attempted to register on the State of Arizona’s Voter Registration webpage and could not because of A.R.S. § 16 - 101(A)(5), which states: “Has not been convicted of treason or a felony, unless restored to civil rights.” This is a violation of the Fifteenth Amendment, which states: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” Three conditions are found in the Fifteenth Amendment, and only two of the conditions “race, and color,” deal with the shade of one’s skin, while one element, the “previous condition of servitude,” does not deal with race, but with the slavery outlawed, except for prisoners in the Thirteenth Amendment. The Thirteenth Amendment abolished slavery and involuntary servitude in 1865, and was fortified by the Peonage Act enacted by the Congress in 1867; See United States. 39th Congress, 2nd Session. An Act to abolish and forever prohibit the System of Peonage in the Territory of New Mexico and other Parts of the United States. C.H. 187, 188 (1867), which states: 

“That the holding of any person to service or labor under the system known as peonage is hereby declared to be unlawful, and the same is hereby abolished and forever prohibited in the Territory of New Mexico, or in any other Territory or State of the United States; and all acts, laws, resolutions, orders, regulations, or usages of the Territory of New Mexico, or any other Territory or State, which have heretofore established, maintained, or enforced, or by virtue of which any attempt shall hereafter be made to establish, maintain, or enforce, directly or indirectly, the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise, are declared null and void.”

The Thirteenth Amendment must be seen as an abolishment of both slavery and peonage, the slave in 1865 was Black, while the peon was often Native American, Asian, Latin American, or White, creating a differentiation between chattel slavery and involuntary servitude/peonage, which were both abolished. In the case, Bailey v. Alabama, 219 U.S. 219 (1911), the opinion of the Court stated: 

“The Thirteenth Amendment prohibits involuntary servitude except as punishment for crime. But the exception, allowing full latitude for the enforcement of penal laws, does not destroy the prohibition. It does not permit slavery or involuntary servitude to be established or maintained through the operation of the criminal law by making it a crime to refuse to submit to the one or to render the service which would constitute the other. The state may impose involuntary servitude as a punishment for crime, but it may not compel one man to labor for another in payment of a debt, by punishing him as a criminal if he does not perform the service or pay the debt”  (Pg. 219 U.S. 244).

The Court further found in Bailey v. Alabama: 

“While the immediate concern was with African slavery, the [Thirteenth] Amendment was not limited to that. It was a charter of universal civil freedom for all persons, of whatever race, color, or estate, under the flag. The words involuntary servitude has a ‘larger meaning than slavery’… The plain intention was to abolish slavery of whatever name and form and all its badges and incidents; to render impossible any state of bondage; to make labor free, by prohibiting that control by which the personal service of one man is disposed of or coerced for another's benefit, which is the essence of involuntary servitude” (Pg. 219 U.S. 241).

Thus, the Thirteenth Amendment is not completely about race, but about “universal civil freedom for all persons, of whatever race, color, or estate, under the flag.” 

The Fifteenth Amendment also allowed the vote for previous indentured servants/peons of every race based on the Amendment’s language: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” As stated in Bailey v. Alabama: “The Thirteenth Amendment prohibits involuntary servitude except as punishment for crime,” and so the logical conclusion is: prisoners are involuntary servants/peons. 

The Petitioner was an involuntary servant/peon as provided by the Thirteenth Amendment who served his sentence to completion. Thus, the Petitioner must be afforded the right to vote as provided by the Fifteenth Amendment, the third element: “or previous condition of servitude.” However, that was not the finding of both lower courts.  The Ninth Circuit provided the opinion: 

“The district court properly dismissed Malnes’s Fifteenth Amendment claim for prospective injunctive relief against defendant Reagan in her official capacity because Malnes failed to allege facts sufficient to establish that Arizona’s felon disenfranchisement statute reflects racial animus or discrimination, or deprives him of the right to vote due to his ‘previous condition of servitude.’ U.S. Const. amend. XV, § 1; Farrakhan v. Gregoire, 623 F .3d 990, 993 (9th Cir. 2010) (‘Felon disenfranchisement laws have a long history in the United States…predat[ing] the Jim Crow era and, with few notable exceptions, have not been adopted based on racial considerations.’ (citation omitted)); see also U.S. Const. amend. XIII (“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” (emphasis added)) (App. 2a - 3a). 

The Ninth Circuit opinion states: “Malnes failed to allege facts sufficient to establish that Arizona’s felon disenfranchisement statute reflects racial animus or discrimination, or deprives him of the right to vote due to his ‘previous condition of servitude’ (App. 2a).” As stated in Bailey v. Alabama: “The Thirteenth Amendment prohibits involuntary servitude except as punishment for crime” (Pg. 219 U.S. 244). As demonstrated in (Footnotes #1 and #6), the Petitioner was made an involuntary servant/peon as punishment for his crime. The State of Arizona is clearly violating the Fifteenth Amendment in A.R.S. § 16 - 101(A)(5), which states: “Has not been convicted of treason or a felony, unless restored to civil rights.” The Thirteenth Amendment can define the phrase “convicted of treason or a felony” as an involuntary servant. Thus, the Petitioner cannot vote in the State of Arizona because he was a prisoner/peon.

 The Petitioner’s case against the Respondents centers on semantics, a word now often used pejoratively, where the use of the term semantics is seen as a parsing of words instead of its actual definition: “The branch of linguistics and logic concerned with meaning. The two main areas are logical semantics, concerned with matters such as sense and reference and presupposition and implication, and lexical semantics, concerned with the analysis of word meanings and relations between them” (Oxford English Dictionary).  As such, the Petitioner has attempted to use linguistics to derive meaning from the Thirteenth and Fifteenth Amendments. The Petitioner filed suit against the Respondents on January 20, 2016 for violating his civil rights.

REASONS FOR GRANTING THE PETITION

“[T]he vote is the most powerful instrument ever devised by man for breaking down injustice and destroying the terrible walls which imprison men because they are different from other men” (See Lyndon B. Johnson, “Remarks in the Capitol Rotunda at the Signing of the Voting Rights Act,”  August 6, 1965). These remarks from President Johnson in 1965 echo the Founders cry for representation almost 200 years earlier. 

The Petitioner’s case is also a cry for the freedom to vote, and the Petitioner’s writ to this Court echoes a long history of those who have existed in the United States as the American Colonists had, taxed, but not represented. 

This Court should grant the petition and reverse the court below:

I. The Ninth Circuit’s Decision Contravenes the Decisions of This Court in Its Interpretation of the Fifteenth Amendment.

The lower courts both cited Farrakhan v. Gregoire, 623 F .3d 990, 993 (9th Cir. 2010), as the supportive case law for each court’s Fifteenth Amendment findings. Both the Ninth Circuit, and the district court found: 

“Felon disenfranchisement laws have a long history in the United States…predat[ing] the Jim Crow era  and, with few notable exceptions, have not been adopted based on racial considerations. (citation omitted)” (App. 3a and 11a). In addition, the district court cited: “Farrakhan, 623 F.3d at 993 (‘[P]laintiffs bringing a [section 2 of the Voting Rights Act] challenge to a felon disenfranchisement law based on the operation of a state’s criminal justice system must at least show that the criminal justice system is infected by intentional discrimination or that the felon disenfranchisement law was enacted with such intent’)”(App. 11a – 12a). 

In & Beal v. United States, 238 U.S. 347 (1915), this Court found: 

“The Fifteenth Amendment does not, in a general sense, take from the States the power over suffrage [franchise] possessed by the States from the beginning, but it does restrict the power of the United States or the States to abridge or deny the right of a citizen of the United States to vote on account of race, color or previous condition of servitude [peonage]. While the Fifteenth Amendment gives no right of suffrage, as its command is self-executing, rights of suffrage may be enjoyed by reason of the striking out of discriminations against the exercise of the right. A provision in a state constitution recurring to conditions existing before the adoption of the Fifteenth Amendment and the continuance of which conditions that amendment prohibited, and making those conditions the test of the right to the suffrage, is in conflict with, and void under, the Fifteenth Amendment” (Page 238 U. S. 347-348).

The Fifteenth Amendment to the United States Constitution was ratified on February 3, 1870, while the Arizona State Constitution came into effect when Arizona achieved statehood on February 14, 1912. Thus, the State of Arizona’s (Respondent’s) statute A.R.S. § 16-101(A)(5), which states: “Every resident of the state is qualified to register to vote if he: Has not been convicted of treason or a felony, unless restored to civil rights,” violates this Court’s findings in Quinn, by creating a bar to franchise, the right to be an “Elector,” that violates the Fifteenth Amendment.

The district court also found: 

“Enacted in the wake of the Civil War, the immediate concern of the [Fifteenth] Amendment was to guarantee to the emancipated slaves the right to vote, lest they be denied the civil and political capacity to protect their new freedom.” Rice v. Cayetano, 528 U.S. 495, 512 (2000). “The design of the Amendment is to reaffirm the equality of races at the most basic level of the democratic process, the exercise of the voting franchise.” Id. (App. 11a).

This Court prefaced the comments highlighted by the district court in Rice: 

“The purpose and command of the Fifteenth Amendment are set forth in language both explicit and comprehensive. The National Government and the States may not violate a fundamental principle: They may not deny or abridge the right to vote on account of race. Color and previous condition of servitude, too, are forbidden criteria or classifications, though it is unnecessary to consider them in the present case” (Page 528 U. S. 511-512).

This Court’s language in Rice makes it clear that there are three categories of protected citizens within the Fifteenth Amendment: race, color, and previous condition of servitude. And Rice only deals with race. Thus, the district court did not consider the other two categories of protected citizens in its ruling. And the Ninth Circuit affirmed the district court ruling.

The lower courts failed to incorporate the three conditions (race, color, and previous condition of servitude), covered under the Fifteenth Amendment as provided in Rice in their decision.

CONCLUSION

The petition for a writ of certiorari should be granted.