Tennessee Ratifies New Penalties Rife with Racial Disparity for Protestors

So far, in the indisputably turbulent year of 2020, Tennessee has already seen several controversies bring its legislators into the national spotlight. Lieutenant Governor Randy McNally posted (and subsequently deleted) a menacing “warning” to the Black Lives Matter community. The state Supreme Court made headlines when it ruled that fear of COVID-19 infection would not be considered a legitimate reason to vote absentee. Most recently, the General Assembly passed contentious new legislation in response to peaceful protestors.

On August 20, Tennessee Governor Bill Lee adopted a new bill into law that imposes harsher punishment—including loss of voting rights—for protestors. He described the bill as a response to recent vandalism acts, including the unauthorized removal of a controversial monument. The new legislation was signed unannounced and went into effect immediately.

When the people of Nashville, Tennessee, rallied with the rest of the nation following the death of George Floyd, they demanded Lee directly address issues of police brutality and systemic racism. Protests ran day and night outside the Capitol doors, persisting in displays of determination and solidarity. At the end of May, a group toppled a divisive statue that depicted the notoriously racist Edward Carmack. However, the protests in Tennessee have been distinctly and consistently non-violent. When police declared a riot in Nashville in mid-June, Lt. Gov. McNally blamed out-of-state “outside agitators” for the unlawful protests in a tweet.

The bill’s recategorizations of protest-related crimes raised alarm among civil rights advocates. Petty offenses that used to be mere misdemeanors have become felonies. Tennessee considers any felony to be an “infamous crime” worthy of disenfranchisement, meaning convicted felons lose their right to vote. Felony convictions are notoriously challenging to remove in the state, and the bill sparks concern over the legitimacy of imposing limitations on voting rights for such relatively banal crimes as minor vandalism and “camping.”

Camping on state property, to which some protest activities between 10 pm and 7 am qualify, has been promoted to a felony. The law also converts a broader array of vandalism offenses (including temporary markings) into felonies; even a protestor drawing on state property with chalk risks losing the right to vote. Other protest-related violations, including blocking a highway, assaulting law enforcement, and aggravated rioting, face similarly expanded inclusions and penalties like longer jail sentences, increased fines, and a likelier potential to be investigated and prosecuted by the state.

“Except for the camping provision, most of the provisions (of the bill) related to specifically actions directed towards undermining the government as a whole,” State Senator John Stevens (R-Huntingdon) said in a press conference. “It’s a way to overthrow, essentially, it’s revolution.”

“We heard testimony in the judiciary committee that that was the intent, they wanted ‘revolutionary change.’ And that deserves a very severe punishment,” he said. “People that want to overthrow the government should lose their right to vote.”

When a reporter who said they were present at the judiciary committee hearing questioned the senator, saying that no testimony had mentioned overthrowing the government, Stevens clarified that he personally interpreted ‘revolutionary change’ as synonymous with ‘overthrowing the government’ by means of rioting.

The ACLU said that Lee’s decision to sign the bill “chills free speech” and ignores the public’s pleas for justice and reform. The Tennessee NAACP has opposed the bill since its inception. Kristen Clarke, executive director and president of the Lawyers Committee for Civil Rights Under Law, is among those opposing the law, believing it aims to critically discourage protestors and stifle their voting rights.

“To criminalize protest activity and disenfranchise voters on top of it defies principles that lie at the heart of our democracy,” Clarke said in a statement. “This is abuse of state power intended to silence voices of dissent from the streets to the ballot box.”

Both state and federal governments control voter eligibility laws. The U.S. Constitution grants voting rights “except for participation in rebellion, or other crime,” language which state laws have interpreted in various ways to address voting entitlement of criminals. Several cases have used the Fourteenth Amendment’s equal protection clause as grounds to argue against felon disenfranchisement; in some cases, discriminatory motivations proved grounds enough to curtail felon exclusions.

The Fifteenth Amendment of the U.S. Constitution prohibits any denial or abridgment of voting rights “on account of race, color, or previous condition of servitude.” Aimed at legalizing voting rights for the Black community, this Amendment’s language ties to the Thirteenth Amendment’s abolishment of slavery, which includes “involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted.” Thus, criminal offenses can constitutionally justify suffrage denial, but just how much has fallen to state governments to prescribe.

In all but two states, convicted felons actively serving a sentence lose the right to vote. During incarceration, mandatory hard labor in the American prison system can be considered “involuntary servitude” as punishment for crime, which reasonably justifies the abjuration of voting rights. In 37 states, felons regain their right to vote immediately or soon after release. A few states, including Tennessee, impose voting restrictions upon felons indefinitely.

In 1966, the California Superior Court ruled on Otsuka v. Hite, a case that debated the validity of voter disqualification in the state. The state constitution classified the plaintiffs’ felony crimes of conscientious objection as “infamous crimes” and thus rescinded their rights to vote. However, per the court’s ruling, the catalog of included “infamous crimes” was too excessively inclusive. The list was reduced to only include crimes of “moral corruption and dishonesty,” and the plaintiff must bear a significant “threat to the elective process.”

In a 1972 opinion on Dillenburg v. Kramer, the U.S. 9th Circuit Court of Appeals questioned the classifications of laws affecting voter eligibility. It said, “Courts have been hard-pressed to define the state interest served by laws disenfranchising persons convicted of crimes…hen the façade of the classification has been pierced, the disenfranchising laws have fared ill.” But just piercing that façade remains complicated, with state and federal courts leaving the ethical limits to felon disenfranchisement vague and uncertain.

In the same year, the U.S. Supreme Court ruled on a voting rights case from Tennessee, Dunn v. Blumstein. It was determined that maintaining the “purity of the ballot box” (essentially, the avoidance of voter fraud) is the chief motivation to impose restrictions on voters, and states must prove that their restrictions are essential to a significant state interest and are the least restrictive way for the state to achieve its objective.

But this did not necessarily encompass criminal disenfranchisement. Two years later, the Supreme Court ruled in Richardson v. Ramirez that equal scrutiny of “compelling state interests” should not be applied automatically to criminal disenfranchisement, allowing states to retain the discretionary authority. This decision reversed the California Supreme Court’s original ruling on the case.

However, in McLaughlin v. City of Canon (1995), a U.S. District Court ruled that the same scrutiny of state interests should be applied to disenfranchisement law when it pertains to misdemeanors rather than felonies—an interesting note when discussing Tennessee’s reclassification of non-violent and relatively trite misdemeanors as felonies. If it is unconstitutional to deny suffrage on account of a misdemeanor, could it be constitutional to simply relabel the misdemeanor?

Temporary graffiti on a confederate statue or overnight demonstrations peacefully exercising the right to assemble are difficult to consider crimes of “moral corruption and dishonesty”; it is difficult to assert that such perpetrators risk the “purity of the ballot box.” Nevertheless, at least in Tennessee, they now suffice as serious enough offenses to lose the right to vote.

“The thing is, what I wish I could convey to people is that it’s really hard to be sympathetic to what someone is saying when they are yelling at you,” Senator Kerry Roberts (R-Springfield) said of the bill in reaction to the protestors.

A 2016 study revealed that over eight percent of Tennessee’s population was disenfranchised due to felony convictions. Only a handful of states (perhaps notably, all Southern) share or surpass that number, and in most states, the calculation is closer to one percent on average. The newly expanded felony inclusions of this bill will likely cause that percentage to climb even higher in Tennessee, specifically targeting the recent protests which were predominantly led by Black people. A fiscal memorandum to the bill notes expected increases in some incarceration rates following the legislation, including a 25 percent increase of admissions for some of the bill’s included offenses.

In 1996, a criminal disenfranchisement case called Baker v. Pataki was met with a divided district court. Plaintiffs from New York claimed that the racially disproportionate impact of incarceration equated to violation of the Voting Rights Act, which forbids racial discrimination in voting legislation. The Supreme Court’s language in Richardson suggests that racial discrimination, if deliberate, may be grounds to invalidate felon disenfranchisement. Under Baker, theoretically, the racially disproportionate impact of legislation could have the same potential to nullify it.

In Tennessee, Black men are at least three-and-a-half times more likely than white men to be incarcerated for a felony. And, although the state’s Black population is only 17 percent, Black people make up 40 percent of Tennessee’s state prisons.

“We seem not to worry about protesting when white people show up with AR-15s,” said Rep. Jason Hodges (D-Clarksville) in a committee hearing, recalling previous pro-gun protests with heavily armed participants outside the Capitol. “But when Black people show up with signs, we try to pass legislation…maybe that’s why they’re out there in the first place.”

To limit constitutional rights in any way undermines the pillars of democracy, yet state laws enjoy a sometimes-unscrupulous authority over suffrage. Tennessee’s renewed efforts to “criminalize dissent,” which the ACLU says the bill accomplishes, may prove to be an attack not only on the right to vote but on the principles of free speech and assembly. As a glaringly targeted response to non-violent protests and with disenfranchisement laws already silencing hundreds of thousands of votes in Tennessee alone, civil rights groups will continue to watch the law closely as its consequences unfold.