When a Felon Casts Her Ballot
Kelli Griffin served her time and changed her life. She wants to vote. Now what?
Nothing bad will come of this, Kelli thinks. This is for my children.
Her daughter is learning about civics and voting and, coincidentally, the town of Montrose, Iowa, where Kelli lives with her husband and children, is holding an uncontested municipal election. It is balmy on this day, November 5, 2013. Kelli Jo Griffin picks up her children and stepdaughter from Keokuk Catholic School and Central Lee — four kids total. Both schools are a short and raucous ride to the polling station inside the Ivor Fowler community center where things will soon go wrong.
Kelli has forgotten her driver’s license. She packs the children back into the car and speeds home — forty-five minutes, maybe an hour, one way, then back again. The kids are shouting. Mommy’s voting! It’s exciting and restless, this democracy.
With her license, back at the community center, she must register, though she had once before, under a different name. What name? She has to think, there were many. Saylor, she tells the poll workers, who call someone in Fort Madison, one of two county seats. They aren’t sure what to do. But they decide to register Kelli Jo Griffin as a new voter, anyhow, while Kelli tries maintaining order among her kids, who rush around and holler. Kelli’s eldest is thinking of tricorn colonial hats and a bell in Philadelphia. And this election, Kelli believes, is the perfect opportunity for her daughter to witness firsthand how this democratic thing works.
The poll workers help Kelli settle the kids and fill out the registration. They ask if she’s ever been convicted of a felony, or had her rights restored after a conviction. Kelli tells them no.
“No” seems to her the right answer. No, she is not a felon. No, she is not that person, long since eradicated, the one who faced hardships and made good on restitutions and changed. She is a mother now, a better person, a volunteer and a role model for battered women, part of society like any other citizen. Voting is her right. No, she is not a felon.
Or so she thought.
Some two months after Kelli votes, she is arrested and charged with voter fraud.
An auditor notes that when Kelli cast her ballot on that day of suffrage, an inalienable right she believed she still maintained, Kelli had failed to restore her right to vote after completing her sentence. She had served two five-year sentences on probation for drug violations.
Now she was charged with a brand new crime. Kelli, after years of sobriety and goodwill, faced up to fifteen years in prison.
The motto on the state seal of Iowa reads: Our liberties we prize, and our rights we maintain.
Long before its admittance to the United States, Iowa upheld firm beliefs in civil rights, which made it somewhat unique in its Midwestern context. From its inception, the state Supreme Court granted slaves freedom, struck down a ban on interracial marriage, allowed women to practice law, and admitted the first woman to the bar — all before the turn of the 20th Century.
This history does not sit well alongside the narrative of Kelli’s case, which in March was argued before the Iowa Supreme Court. Her story, told here, is similar to the stories of some 200,000 indentured felons in her state alone and millions of those convicted of felonies throughout the country. An October 2016 report by the Sentencing Project said Americans who are forbidden to vote because of felony disenfranchisement and laws penalizing people charged with those crimes increased from 1.17 million in 1976 to 6.1 million earlier this month.
In a zany and bizarre political season, criminal justice still takes a front-row seat in Washington, D.C., and around the county, and battles over reenfranchisement are among the hardest-fought. Some states reinstate a felon’s right to vote after successful completion of his or her sentence, probation, or parole. Others never will.
One in every forty adults, about 2.5 percent of the voting population in the United States, cannot vote because of a current or previous felony conviction. The rate is even higher for African-Americans: one in every thirteen. Iowa is among the twelve states that disenfranchise felony convictions post-sentencing. Even after completing probation, parole, and a stint in prison, this group of felons accounts for half of all disenfranchised voters.
A rolling debate surrounds the penalties levied against citizens convicted of crimes. In six states, more than seven percent of the population cannot vote because of a criminal record. In twelve states, a person convicted of a felony cannot vote regardless of whether they are incarcerated, on parole or probation, or have finished their sentence, compared with two states who have no voting restrictions. How the remaining states disenfranchise felon voters varies: some, like Hawaii and Massachusetts, only restrict voters serving time in prison. Others, like Alaska, Georgia and North Carolina, restrict voters serving any sentence in prison, on parole or probation.
Kelli’s case is central to this national debate about who can reenter society in this most fundamental of ways — through voting — and has only recently, with the help of the American Civil Liberties Union of Iowa, the Brennan Center for Justice in New York, and other groups, become the face of so many others who have served their time but find themselves still relegated to life without full citizenship.
While Kelli’s case is central, it is perplexing. One Iowa governor successfully restored the right to vote to more than 100,000 disenfranchised voters, only to see his work reversed by his successor in 2011.
What happened in Iowa, though, is nothing new. The same fight has been roiling other states, like Maryland, which in February restored voting rights to 40,000 felons only after a contentious legal battle, and in Virginia, where, after the Virginia Supreme Court overturned Governor Terry McAuliffe’s restoration of voting rights for people who successfully completed their sentences, he had no option other than individually reinstating the voting rights to 12,832 people — a fraction of the hundred of thousand he initially set out to help.
When I visited Des Moines this spring, a litany of troubles embroiled the vastly overpopulated, nonrehabilitative criminal justice system there. Amid recent calls to jail a man convicted of multiple DUIs before he could fill a Senate seat, a drunken driver had killed two police officers and their prisoner. The Iowa caucuses, meanwhile, were dividing criminal justice reform between red and blue. Now, faced with an opportunity to reincorporate thousands of ex-offenders, how would the state respond? And underneath that question were others. How would a state move forward in an election season when some twenty percent of its population had been disenfranchised? How would the sitting governor defend his executive order, which had stripped so many of that very right?
In the end, at the case’s most basic level, Kelli prized her liberties, the same inalienable rights she lost. It is all she wanted. She worked to get her rights back, at first with lengthy, often times contentious, court battles.
She sought to maintain them — echoing the motto of her state that had shunned her.
Life had never been easy for Kelli, born in 1974.
When she was five, she says, a family member molested her. She spent much of her early life tossed between foster care and group homes. At thirteen, she lost her virginity to a man named Shad Heckart, who she said beat and abused her. Their later marriage would spawn her numerous felonies.
On a night in June, 2000, she told me, Heckart strapped Kelli to a bed against her will and injected her with methamphetamine. Years later Kelli would still say Heckart was never a bad man. But when he was high, which was nearly always, she said, the shadow he cast was cold.
It was during her time with Heckart that Kelli fell into the criminal justice system. First, in 2001, she was charged with theft and felony possession of ethyl ether. She was found guilty and received five years probation, but no jail time. After moving away from Heckart, Kelli married another man, Leroy Smith, who later died from an overdose while Kelli served out her probated sentence.
A year before Kelli completed her first probationary sentence, Governor Tom Vilsack, then the governor of Iowa, signed into law an executive order reenfranchising 115,325 felons — granting them their right to vote in elections following the successful completion of their sentences. No supplemental paperwork required. All felons, past and present, could have their rights automatically restored.
Iowa was at the time one of a handful of states that didn’t have some pathway for felons toward the restoration of voting rights. And Governor Vilsack was concerned about the disproportionate number of African-American males who were incarcerated. Some twenty-odd percent of the young black people in the state had been incarcerated. He also knew that there existed a correlation between rights restoration and recidivism rates. Studies had shown that a deep commitment to society, to voting, in particular, lowered recidivism. He wanted to make a difference, Vilsack told me, beyond the polls.
Governor Vilsack knew his executive order could be eliminated by the state legislature, but hoped it might shed light on the benefits of automatic restoration rights for felons before it was rescinded. Vilsack — a man of conviction and experience in state and federal government, now serving as the U.S. Secretary of Agriculture — told me he hoped the state legislature would come to see the benefit of automatic reenfranchisment: that less crime resulted from reincorporating former felons, giving them opportunities to feel communal ties, and worth.
Kelli was one of the thousands to see the order’s benefits. Five years after the first felony drug charges, Kelli successfully completed her probation and, with renewed freedom, in 2006, she voted in two elections.
Then Kelli’s ex-husband slithered back into her life. He had apparently made a deal. In January 2008, Kelli delivered less than 100 grams of cocaine while Heckart wore a wire to help the police build a felony drug case against her. Again, Kelli received a second, five-year probated sentence. No jail time.
Believing she could not foul up once more, she separated herself from every bad element in her life. Kelli attributes her change to the man she would later marry, and the family they built together. She married her current husband, Michael Griffin, in 2011. Several months later, Kelli successfully completed her probation: No rearrests, no new charges, all restitutions paid.
Again, as when Kelli discharged her first felony drug charge, she believed her voting rights had been automatically restored. When her daughter spoke about civics class, how they were discussing the democratic process and voting, and Kelli decided to take them to vote, she hadn’t known about a change to her rights and the process that had maintained them.
But in the space between her two probations, and her two felony drug charges, the state of restoration rights in Iowa had drastically changed. When Governor Terry Branstad took office in 2011, he rescinded Vilsack’s executive order that had reenfranchised felons. Instead of automatic restoration, felons who completed their sentence needed then to petition the governor’s office directly.
In a 2005 letter to the editor of The Des Moines Register, Governor Branstad wrote, “rights can be restored by the governor … but only after the individual has completed his or her sentence or probation, paid any fine and/or court costs as well as made restitution with the victim if it is required. By requiring the completion of the obligations associated with the conviction before restoring the rights, the state of Iowa has established a public policy that the responsibilities of citizenship need to be demonstrated by a convicted felon before the rights to vote and run for public office are restored.”
Perhaps as intended, this did nothing more than to further ostracize felons. A backlog of cases grew. Restoration was slow. And many who sought restoration gave up.
Felons in twelve states around the nation are never again allowed to vote: these prospective voters make up fifty percent of the disenfranchised population, without a chance of appeal. But Iowa more closely resembles two other states that do not offer automatic restoration without direct governmental approval. Florida, Kentucky, and Iowa allow felons to petition the state for restoration of voting rights, but require them to jump through further administrative processes, an arduous and daunting expedition, for anyone who even reaches the end of the application.
People who have served their sentence see “a confusing form with a lot of detail and the requirement that they sign under penalty of perjury and just decide it’s not worth the risk,” said Rita Bettis, the ACLU legal director in Iowa.“They fear that they could make an honest mistake with a detail or two on the form and face serious criminal penalties.”
Kelli’s case, she was sure that none of these lifetime restrictions applied to her, or should, and she decided to fight for her right to vote in coming Senate and presidential elections.
By 2016 she was a humbled presence, not one visible trace of a past of drug use and addiction. Kelli had changed her hair color over the years, red and brunette and sometimes strands of blonde. She wore modest, loose clothing, and spoke with the inflection of a strained mother rallying her children.
As her perjury case went to trial, Kelli couldn’t think about how, of all things, a perjury charge for voting could land her in prison How could she have cleaned up her life, gotten sober, discarded all the bad in her life, only to face something so outrageous?
But the court used her changes against her, believing her to be a continued threat to society, a predator in disguise.
Around the time Kelli casts the vote in 2013 for which she would catch a perjury charge, Tony Bisigano went for a drive.
He soon found that he was lost. He was looking for Prairie Meadows, but somehow had wended his way toward First Avenue, in Altoona, east of Des Moines, just after midnight. A police officer saw Bisigano’s late-model Mercedes swerving across the center line, back into the bike lane, traveling ten miles per hour over the speed limit. When the officer pulled Bisigano over, he smelled alcohol. A breathalyzer confirmed a .110 blood alcohol content, almost twice the legal limit.
“Is this bad?” Bisigano asked the officer, according to police records. “I’m running for Senate. This just kills my campaign.”
He was running for the Democratic nomination in the election for District 17 and soon pled guilty to second-offense operating under the influence. At the time it was his fourth alcohol-related conviction. In many states, a three-strike policy bars repeat DUI/OWI offenders from renewing their license. In some states, a third strike is a felony conviction and results in years spent in prison. Not the case here.
Bisigano, after spending several days in jail, was sentenced to two years on probation with additional community service. Two months later he filed campaign papers with the Iowa Secretary of State and held a campaign launch party. One of the contenders in District 17 challenged Bisigano’s candidacy, believing him ineligible. Ned Chido, the contender, believed that someone charged with a crime cannot vote, let alone run for office. It said so in the state constitution. And he was right, with a caveat: so long as the crime was a felony. Misdemeanors, like OUI, were exempt.
The case was appealed to the Supreme Court, which ruled in favor of Bisigano who, the court said, had only committed a misdemeanor crime. Since the state constitution only barred someone convicted of an ‘infamous crime’ from voting, this did not apply to Bisigano. The Supreme Court adjourned.
Bisigano’s OWI case and Kelli’s perjury case existed on a single spectrum, but at opposite ends.
For Kelli, a convicted felon, her right to vote was restricted by the same clause in the state constitution that allowed Bisigano to run for office. In Bisigano’s case before the Supreme Court, the justices decided that only felonies were considered “infamous crimes,” not misdemeanors, like operating under the influence.
But the Court’s decision would lead to an opening through which Kelli would later attempt to have her rights restored, at long last, without fear of reprisal.
In March 2014, after a jury deliberated for less than an hour, Kelli was acquitted of perjury. Around the same time, Senator Bisigano was settling into office after winning a three-way primary.
After the trial, Kelli was free to petition Governor Branstad for her right to vote. She could fill out the form, pay the fee, and wait. A decision would have likely not been made in time for the November presidential election.
Instead, Kelli’s legal team insisted she take her case to the Supreme Court — to ask the justices to confirm that she was in fact already eligible to vote. She would now enter a debate that has taken center stage in this year’s election: Is the constitution, and therefore state constitutions, a living document or is it set in stone? The constitutional clause which barred Kelli, but bolstered Bisigano, needed to be scrutinized. Someone needed to define how best to categorize “infamous crimes,” felonies, and misdemeanors, and where to draw the line of distinction between all three — if at all. The justices, having decided that “infamous crimes” only applied to felonies, in the case of Bisigano, agreed to hear Kelli’s case.
It is late March when the case goes to court. I visit Des Moines during a week of mild weather that had settled, bracketed between rainstorms.
I had planned on visiting Kelli’s hometown in Montrose, but got lost. As I drove country roads, I realized I could be anywhere across the slap-dashed cornfields and plains. It can feel like you traveled straight and true for hours and still you had gotten nowhere.
At the courthouse, Kelli sat in the front row, beneath the Classical Revival ceiling in the Judicial Building on Court Avenue and surrounded by representatives of the American Civil Liberties Union. Crosshatched in black and white, Kelli’s blouse was pressed and neat. Lawyers for both sides presented the case.
It was simple enough. In 2008, voters elected to change the language within the state constitution. They had removed the words “idiot or insane person” from the list of ineligible voters and replaced them with “a person adjudged mentally incompetent to vote.” But another category of persons barred from voting remained abstruse: anyone convicted of an “infamous crime.” Again in 2010, the constitutional language was changed elsewhere, but “infamous crime” remained. The problem? No one knew what it meant.
For much of the state’s history, this term of “infamous crime” was defined as any felony, characterized by one or more years served in a state penitentiary. But the question Kelli’s legal team posed to the seven justices was why the separate usage for the same definition? If the writers of the constitution had used “felon” in one instance, and “infamous crime” elsewhere in the document, why would they share a definition? Should not both terms have separate definitions? If so, why muddy the language? Keep it simple. Use “felon” twice. This, said Bettis, the ACLU legal director, must mean there are two separate definitions.
She asked the judges to seek a determination on whether Kelli’s non-violent drug felony constituted an “infamous crime.” The term, thus, would be defined, and exclude large swaths of crimes. It could address only violent felonies, or acts of treason, or attempts to undermine the democratic process. Their decision would decide how to classify more than 50,000 Iowans who are identified as disenfranchised felons.
Bettis urged the court to bar only certain felons — those who committed affronts to democratic governance or those of moral turpitude: voter fraud, bribery of an official, embezzlement of public funds, and sexual violence among those that would be restricted from ever voting again.
The justices then wrestled with how voting officials might parse out who is and who is not eligible to vote. A standard, they argued, would be hard to adopt.
There were many concerns. Would they distinguish between felony assault and simple battery? What if a simple battery occurred at a voting booth, would that then be classified as an infamous crime? What about Iowa’s same-day voter registration: In the mayhem of election day, would officials and volunteers tasked with registering voters know how to accept the registration of a non-violent felon, but not one of someone who committed an infamous crime?
The court heard several arguments, then adjourned.
Outside the court building after the arguments, I retreated to the parking lot, leaning against my rental car while a swarm of local and national media surrounded Kelli. I sent her a text message inviting her to lunch, whenever she was ready, less overwhelmed.
As I stood in the parking lot, watching the media chaos, it became clear to me what it must have felt for Kelli these past several years. In the beginning, she had been ostracized because of the places and people she had associated with, the life choices she had made. Now things were different, and she was at the center of something bigger than herself, a crowd of people on her side, giving her attention and the kind of compliments she never thought she would one day receive. And this inclined me to think about what it meant to be a felon in America. Because the title does not recede with the completion of a sentence, you are at the center of the legal system, an important predator being served justice, and soon ostracized at the end of your sentence, damned to one exile or the other.
We met an hour later downtown. Kelli shared her story, smiled, relished the positive attention. She ate her lunch, a bit morose but also hopeful that after this her voting rights would be restored, and planned the rest of her afternoon. The court wouldn’t issue its decision for months.
Maybe, Kelli said at lunch, without irony, I’ll visit the Capitol Building.
I had passed it on my drive to the courthouse. Its neoclassical arches and golden dome also stand on a lonely hill, like the Supreme Court building, a testament to justice and civic pride, a grand hall that seemed then to both welcome and reject her.
Sitting there with her, nothing portended what the decision would be, but something about the tide of criminal justice in America made me cautious. Four months later, I would learn that I had been skeptical of a victory for good reason. The court ruled that Kelli was still an infamous criminal. According to the court, the words “felon” and “infamous crime” are just words. There is no difference between forcible and non-forcible felonies; it is just a flourish of rhetoric. All felons in Iowa, regardless of the crime itself, are “infamous.”
“I feel like my world has been turned upside down,” Kelli said in a statement after the court’s ruling. “I wish the decision would have been different. For me, nothing has changed. I still cannot vote.”
For Kelli to vote in the upcoming presidential election, she’d need to petition the governor’s office for her right to vote.
The ACLU planned to work on filing for a constitutional amendment to address the continued felon disenfranchisement, while meanwhile helping Kelli navigate the paperwork at the governor’s office.
In April, the Governor announced a streamlined form for former felons seeking to restore their voting rights to use: thirteen questions instead of twenty-nine.
Aside from the form, there was a fee. Bettis said any fee or form is prohibitive, but the ACLU had an obligation to help Kelli complete and pay it. As of July 1, of the 56,000 former felons eligible to petition the governor’s office for restoration under Governor Branstad’s order (which includes some 7,000 who are currently incarcerated, according to the office of the Secretary of State), 119 applications have been successfully granted, according to a spokesman for the governor.
The inconsistency in our criminal justice system, this penchant for justice without rehabilitation and latitude, is what I thought about on the long drives I took alone during my few days in Iowa.
Kelli would take similar drives in Iowa, I was sure. And wherever she went, no matter how far she drove, she’d be a felon for life, even if she was no longer. This, I believed, was why the word “horizon” is omnidirectional. You can chase it but it forever surrounds you, much like criminal absolution. It’s like driving with the expanding plains stretching out behind you but never receding. Nothing on the horizon fades because wherever you are, you are the same person, although perhaps a bit changed inside.
O n November 8, Kelli will vote.
For someone else in her situation, without the help the ACLU, the process to restore their rights through the governor’s office would cost nearly $1,000 in attorney’s fees, not including the time spent culling necessary records to supplement the application, and a background check. Just getting it right is daunting for many who might still be paying restitution or monthly probation fees.
“In other cases, we are hearing it is taking around a month,” Bettis told me in late October, speaking of the time it takes the governor’s office to process an application. “That’s significantly less time than it used to take — three to six months — and represented an improvement.”
For Kelli, it only took three weeks. Or, depending on how you look, it took more than ten years.
It is a matter of interpretation.
Kenneth R. Rosen works and writes for The New York Times.
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