AO-2017-008

Legal Information and Assistance Involving Voting Rights

 

Question Presented

Does the LSC restriction limiting “any voter registration activity” permit an LSC grantee to provide legal assistance and legal information regarding Alabama laws governing the voting rights of Alabama residents with convictions for felonies involving moral turpitude?

Brief Answer

Yes, an LSC grantee may provide legal assistance and legal information regarding Alabama laws governing the voting rights of Alabama residents with specified felony convictions. The LSC restriction prohibits “any voter registration activity” and does not restrict activities that are not “voter registration,” such as those involving the restoration of voting rights. Moreover, the LSC restriction does not apply to “legal advice and representation,” and thus permits the provision of such legal assistance regarding voter registration to eligible clients.

Background

Alabama’s constitution disqualifies from voting any person “convicted of a felony involving moral turpitude . . . .” See Ala. Const. art VIII, § 177 (2016). It does not, however, define “moral turpitude.” Thus, different counties in Alabama have adopted varying and sometimes inconsistent interpretations of the law resulting in disenfranchisement of Alabama residents for a broad range of felonies, including relatively minor ones. In response, in 2017, Alabama enacted H.B. 282, the Definition of Moral Turpitude Act, providing an exhaustive list of all felonies considered acts of “moral turpitude” that “are the only felonies for which a person, upon conviction, may be disqualified from voting.” See Ala. H.B. 282 (2017), codified as Ala. Code § 17-3-30.1 (2017). Alabama law has three categories of felonies involving moral turpitude with different effects on restoration of voting rights.

  1. Ones that permit restoration of voting rights through a state process after completion of the terms of the sentence.
  2. Ones that permit restoration of voting rights after a pardon (e.g., murder or rape).
  3. Ones that permanently disqualify a person from voting (only treason or impeachment).

Implementation of the new law involves the Alabama Secretary of State, the Alabama Board of Pardons and Paroles, and the board of registrars for each county in Alabama. Each county board of registrars maintains a list of persons barred from voting or registering to vote. Many people on those lists are now eligible to vote because their convictions involve excluded crimes under the new law. Each county must update its own exclusion list and procedures for checking voter eligibility. The state does not have a single process or registry, which may lead to confusion and inconsistencies involving new registrations or requests for restoration of voting rights.

Under Alabama law, the voting rights restoration process is separate and distinct from the voting registration process. Voter registration is governed by Chapter 3 of Title 17 of the Alabama Code, which sets forth the qualifications for “electors” (voters), Ala. Code § 17-3-30, and provides that “[t]he Secretary of State may promulgate rules for the receipt of applications for registration and the expedient administration of those applications. Id. § 17-3-1. Consistent with that provision, the Secretary of State maintains a website providing information regarding voter registration, including on-line registration, http://sos.alabama.gov/alabama-votes/voter/register-to-vote.

Legal Services of Alabama (LSA) has asked whether it may provide legal information and legal assistance involving voting rights and restoration procedures (presuming, for legal assistance, that the individual meets LSC eligibility requirements for such assistance).  For example, LSA would help people determine the effect of their criminal records on their voting eligibility, and might provide representation to restore voting rights.

Authority and Analysis

The LSC Act states that grantees must “refrain . . . from . . . any voter registration activity (other than legal advice and representation)” with LSC funds.” 42 U.S.C. § 2996(f)(a)(6). LSC implemented that restriction in 45 C.F.R. Part 1608, which provided that “no [grantee] attorney shall engage in . . . [a]ny voter registration activity” using LSC funds. 45 C.F.R. § 1608.6(c). Consistent with the language of the LSC Act, Part 1608 further provides that “[n]othing in this part is intended to prohibit an attorney or staff attorney from providing any form of legal assistance to an eligible client, or to interfere with the fulfillment of any attorney's professional responsibilities to a client.” 45 C.F.R. § 1608.7.

Read together, these provisions permit an LSC grantee to provide legal assistance and legal information regarding Alabama laws governing the voting rights of Alabama residents with specified felony convictions for two reasons.

First, the restriction in the LSC Act and Part 1608 limits the activity of registering voters, for example, a general-population voter registration drive. The restriction does not prohibit work involving the restoration of the right to vote. As described above, under Alabama law, these are two separate and distinct activities. Thus, the LSC restriction does not prohibit LSA from providing legal information or legal assistance about a person’s eligibility to vote, or about the applicable procedures for restoring voting rights.

Second, both the LSC Act and Part 1608 make clear that the voting registration restriction does not preclude the provision of legal assistance to an eligible client. Thus, LSA can provide “legal advice and representation” regarding voter registration to an eligible client.

Conclusion

The LSC restriction on “voter registration activities” does not apply to providing legal assistance or legal information involving Alabama laws governing the voting rights of Alabama residents with specified felony convictions.

 

RONALD S. FLAGG
General Counsel and Vice President for
Legal Affairs

MARK FREEDMAN
Senior Associate General Counsel

KRISTIN L. MARTIN
Graduate Law Fellow