By Collin County Criminal Lawyer Jeremy Rosenthal
November 6, 2012
Today is election day so I thought I’d talk about a question I get asked from time to time about how a criminal case might effect someone’s right to vote.
Voting is known in legal terms as a fundamental right. The cliff’s notes definition of a fundamental right means it is actually spelled out in the U.S. Constitution. Other examples of fundamental rights are freedom of speech, or the right to freedom of religion.
Fundamental rights aren’t necessarily absolute rights and this is one of the main concepts law students learn in their constitutional law courses. This means the government can make limitations on those absolute rights in extremely narrow and compelling situations. For example, a person’s speech can be limited so they don’t yell “fire” in a movie theater and cause a dangerous panic. We have freedom of religion, but this doesn’t necessarily mean a group is free to physically hurt others in the course of a religious ceremony.
Voting rights are no different. Our government believes it should be able to limit citizens ability to vote in certain situations. Texas Election Code 11.002 defines “qualified voters.”
In terms of a felony situation, a “qualified voter” is a person who:
“has not been finally convicted of a felony or, if so convicted, has:
(A) fully discharged the person’s sentence, including any term of incarceration, parole, or supervision, or completed a period of probation ordered by any court; or
(B) been pardoned or otherwise released from the resulting disability to vote;”
The plain language makes clear once someone’s “debt to society” is paid in Texas, then their right to vote is restored. Also, the Texas Secretary of State points out in a memorandum for the public about voting rights in felony situations:
- A conviction on appeal is not considered a final felony conviction.
- “Deferred adjudication” is not considered a final felony conviction. Article 42.12, Section 5, Texas Code of Criminal Procedure.
- Mere prosecution, indictment or other criminal procedures leading up to, but not yet resulting in the final conviction, are not final felony convictions.
Some claim nationwide preventing felons from voting is a form of voter disenfranchisement to the tune of around 5 million potential voters. Here’s an article a bit more academic in nature which can give you specifics on those laws around the country.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about any situation you should contact an attorney directly. Communications sent through this forum are not privileged nor confidential in nature. Communicating with attorney through this forum does not create an attorney-client relationship.