April 5, 1989

Mr. Kent D. Hanson
United States Probation Officer
Probation Office
United States District Court
P. O. Box 922
Aberdeen, South Dakota 57402-0922

OFFICIAL OPINION NO. 89-09

Voting rights of federal prisoners

Dear Mr. Hanson:

You have requested an official opinion from this Office in regard to the following factual situation:

FACTS:

With the passing of the elections and the recent opening of the Federal Correctional Institution, Yankton, the question of inmates' voting privileges has surfaced.

Based upon the above factual situation, you have asked the following questions:

QUESTIONS:

1. Whether South Dakota inmates lose their voting rights while institutionalized at Yankton?

2. Will the same ruling apply to South Dakota's federal prisoners incarcerated in FCIs outside the State?

3. Do the same rules apply to the Bureau of Prison's inmates who are housed in contract facilities such as South Dakota's county jails or community treatment centers (halfway houses) as part of their sentence or pre-release status?

IN RE QUESTION NO. 1:

A basic principle of United States law underlies answers to each of your questions. The principle is that within constitutional limits, the individual states maintain authority to determine to what extent various factors and events affect a resident's voting rights.

The right to vote may be dependent on the existence of certain conditions or on compliance with prescribed requirements, and such conditions and qualifications vary, of course, with the constitutions or laws of the several states. That the states may specify the qualifications for voters in both state and federal elections is implicit in the Federal Constitution.

25 Am.Jur.2d Elections 58.

This principle is recognized by the United States Supreme Court in a variety of cases, including its relatively recent decision in South Carolina v. Katzenbach, 383 U.S. 301, 15 L.Ed.2d 769, 86 S.Ct. 803 (1966).

An elector's status as a felon is among the various conditions or requirements applied and exercised by each state as part of its voting regulation. South Dakota has no cases on point, but our sister state has well outlined the principle and the reasoning behind it.

A state has an undoubted right to provide in its constitution that persons may be . . . deprived of the right of suffrage by reason of their having been convicted of crime. The manifest purpose of such restrictions upon this right is to preserve the purity of elections. The presumption is that one rendered infamous by conviction of felony, or other base offense indicative of moral turpitude, is unfit to exercise the privilege of suffrage.

State ex rel. Olson v. Langer, 256 N.W. 377, 385 (N.D. 1934).

Though the felon-voter principle is usually cited in state court cases (as above), federal courts give it equal credence. In a rather recent United States Supreme Court decision, the high court affirmed a lower federal court ruling that a state can deny a convicted felon the right to vote, even after his sentence is finished and his release is completed. Lippitt v. Cipollone, (D.C. Ohio) 337 F.Supp. 405, aff'd. 404 U.S. 1032, 30 L.Ed.2d 725, 92 S.Ct. 729 (1972).

Since state law is controlling, a general lack of uniformity exists nationally as regards state felonies, and is particularly fragmented in cases involving federal felony convictions. For example, in the North Dakota case cited above, that state's supreme court ruled that the respondent was disenfranchised by his federal felony conviction, but noted that his civil rights eventually would be restored. Olson, supra at 384. A few years later, however, the Supreme Court of Minnesota decided that an individual convicted of a federal felony, where an identical crime was a misdemeanor under state law, could not be denied the right either to vote or to hold office in that state. State ex rel. Arpagaus, et al. v. Todd, 29 N.W.2d 810, 816 (Minn. 1947). The Minnesota court relied heavily upon the dissenting opinion in the Olson decision.

Recent cases have produced little more unanimity. The Supreme Court of Montana reversed a line of prior rulings by holding that a Montana voter was not disenfranchised by conviction of a federal crime when his actions were not a crime under Montana law. Melton v. Oleson, 530 P.2d 466, 470 (Mont. 1974). At roughly the same time, the Supreme Court of Arkansas determined that a resident of that state convicted for federal income tax evasion, fined and placed on probation for three years could not vote in that state, even though the equivalent offense in Arkansas is a misdemeanor. Merritt v. Jones, 533 S.W.2d 497 (Ark. 1976). These wide variations in individual voting rights are not considered a violation of the Equal Protection Clause of the United States Constitution. Green v. Board of Elections (C.A.2 N.Y.), 380 F.2d 445, cert. den. 389 U.S. 1048, 19 L.Ed.2d 840, 88 S.Ct. 768 (1967).

Since state law is paramount in each case, one must turn to South Dakota law to answer your question.

Article VII, 2 of the South Dakota Constitution provides:

Every United States citizen eighteen years of age or older who has met all residency and registration requirements shall be entitled to vote in all elections and upon all questions submitted to the voters of the state unless disqualified by law for mental incompetence or the conviction of a felony . . . .

As is often the case in other states, our State Constitution does not specify what it means by "felony"; however, the State Legislature often provides the definition and details. State ex rel. Richards v. Burkhart, 44 S.D. 285, 183 N.W. 870 (1921). Our Legislature at least indirectly--has done so in this instance.

SDCL 22-1-4 states, in part, "A felony is a crime which is or may be punishable by imprisonment in the state penitentiary." In other words, the distinguishing factor of a felony is the potential for a criminal violator's penitentiary imprisonment. The reference to the state penitentiary seemingly appears because the statute addresses convictions under state law. The statute's obvious implication is that South Dakota regards a felony as a crime whose punishment involves imprisonment in any penal institution, as opposed to a local jail.

Clearer evidence of legislative thinking appears in other state laws. Under SDCL 22-7-7 a sentence for a felony conviction may be enhanced if the defendant "has been convicted of one or two prior felonies under the laws of this state or any other state or the United States. . . ." Thus, a felony within any jurisdiction in the United States is included under South Dakota's habitual offenders laws.

Further, when the Board of Pardons and Paroles examines an inmate's records, SDCL 24-15-1.2 requires that any prior offense shall be regarded as a felony if "it is a felony under the laws of this state, any other state, or the United States at the time of conviction of the offense. Any felony conviction in this state, any other state, or the United States shall be considered to determine parole eligibility under SDCL 24-15-4 and 24-15-5." Notwithstanding that the subject of this law is shifted to parole, any felony within the United States still is considered a felony in South Dakota.

The South Dakota Supreme Court has addressed extra-jurisdictional convictions no more directly than has the State Legislature but, likewise, has hinted that a felony committed without this State's jurisdiction is considered a felony within the State. In Ness v. Ness, 110 N.W.2d 128 (1961), the Court examined a husband's Minnesota conviction to determine if it constituted a felony and, therefore, suitable grounds in his wife's divorce action. The Court determined that the Legislature had intended for out-of-state felonies to apply under the statute as well as in-state crimes. Id. at 129. Further, the Court did not concern itself with whether the husband's conviction was a felony under Minnesota law since an identical crime committed under South Dakota law would have been a felony.

The answer to your first question is that South Dakotans who are institutionalized at Yankton for commission of a federal felony lose their right to vote in South Dakota.

IN RE QUESTION NO. 2.

Based on my analysis above, a South Dakotan incarcerated in a federal institution outside the State nonetheless remains disenfranchised. The location of the federal institution, whether in-state or out-of-state, makes no difference in regard to his South Dakota voter registration.

IN RE QUESTION NO. 3.

To answer your third question, I first must reiterate that, basically under South Dakota law, a South Dakotan convicted of a federal crime is disenfranchised. Notably, state or local facilities that are utilized to house federal inmates are recognized as federal facilities, at least as far as the individual federal inmate is concerned. Re Mills, 135 U.S. 263, 34 L.Ed. 107, 10 S.Ct. 762 (1890). Thus, even if a federal prisoner from South Dakota is housed in a state or county setting, his or her voter status does not change.

To answer your third question, South Dakotans who are housed in state contract facilities by way of a federal conviction are also disenfranchised under South Dakota law.

Respectfully submitted,

ROGER A. TELLINGHUISEN
ATTORNEY GENERAL

RAT:mas