Can Tennessee make convicted felons pay all court fines, restitution, and court costs before getting their right to vote restored?

Plain-English summary

Tennessee disenfranchises convicted felons but lets them apply to have their voting rights restored under Tenn. Code Ann. § 40-29-202. As of 2010, eligibility for restoration required, among other things, that the person had paid all restitution to victims and had stayed current on child support obligations.

HB969 (with companion SB440) proposed adding two more financial conditions: the felon must also have paid all fines imposed by the sentencing court and all court costs assessed after the conviction. Representative Brenda Gilmore asked the AG whether that would survive constitutional challenge.

The AG said yes. The legal framework:

• Felons do not have a fundamental right to vote. The Sixth Circuit established this in Wesley v. Collins. So the State's choices about which felons get their rights back are reviewed under rational-basis review, not strict scrutiny.
• Wealth is not a suspect classification. Conditioning restoration on payment of legal financial obligations therefore does not trigger heightened equal-protection scrutiny.
• Encouraging completion of all sentence conditions, including payment of restitution and other obligations, is a legitimate state interest. That supplies the required rational basis.
• The financial-obligation condition is not a poll tax. A federal district court already held in Johnson v. Bredesen, 579 F. Supp. 2d 1044 (M.D. Tenn. 2008), that conditioning restoration on payment of restitution and child support is not a "tax" on voting under the Twenty-Fourth Amendment.
• The condition is not ex post facto. Bredesen treated restoration conditions as civil and non-punitive: they regulate the application process for restoration, not the original criminal punishment.
• The condition does not violate the Privileges and Immunities Clause for the same reason it does not violate equal protection.

The proposed expansion to fines and court costs would be analyzed the same way and would likely survive challenge.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Note that the law on felon disenfranchisement and voting-rights restoration has continued to evolve. Litigation in other jurisdictions (most notably Florida's experience with Amendment 4 and follow-on financial-conditions cases) and Tennessee Supreme Court decisions have changed the legal landscape. Anyone studying the current Tennessee restoration process should look beyond this 2010 opinion.

Common questions

Q: How does Tennessee restore voting rights to felons?
A: As of the time of this opinion, Tenn. Code Ann. § 40-29-202 set out three categories of eligible felons: (1) those who received a pardon without restrictive conditions on suffrage; (2) those who completed the maximum sentence imposed by the sentencing court; and (3) those who received a final discharge from county, state, or federal authority. Eligibility was conditioned on having paid all restitution to victims and being current on child support.

Q: What did HB969 add?
A: Two more conditions on eligibility: (1) all court-imposed fines must have been paid; and (2) all court costs assessed after the conviction must have been paid.

Q: Doesn't requiring payment to vote sound like a poll tax?
A: It does at first blush, and that's exactly the argument plaintiffs made in Johnson v. Bredesen. The court rejected it. The court reasoned that the payment is a condition of completing the sentence, not a price for casting a ballot. Bredesen relied on Johnson v. Bush (the Florida case) and Coronado v. Napolitano (an Arizona case) for the same conclusion.

Q: Is wealth really not a suspect classification?
A: That's what controlling Supreme Court precedent says, at least outside narrow contexts (criminal defense fees, marriage license fees, etc.). For most equal-protection claims based on wealth, courts apply rational-basis review.

Q: What is rational-basis review?
A: The most deferential constitutional standard. The state need only show its classification is rationally related to a legitimate interest, and the law will be upheld if any conceivable rational basis supports it.

Q: Why is encouraging full completion of a sentence a legitimate interest?
A: Restitution makes victims whole. Fines and court costs offset the cost of running the criminal justice system. Conditioning restoration on full payment gives felons a strong incentive to complete the legal financial obligations imposed by their sentences.

Q: Did the bill pass as originally drafted?
A: As of the date of the opinion, HB969 and SB440 had passed the Senate and House, but the House had adopted an amendment not yet voted on in the Senate. The AG noted the amended bill was "less onerous to the restoration of voting rights than the original bill" but did not analyze the amendments.

Background and statutory framework

Tennessee's voting-rights-restoration scheme is conditional and document-heavy. The statute lists three eligibility paths (pardon without restrictive conditions, completion of maximum sentence, final discharge), then carves out exceptions for unpaid restitution and unpaid child support.

The constitutional terrain rests on Wesley v. Collins, where the Sixth Circuit held that felons do not have a fundamental right to vote. Once that's settled, the State has wide latitude under rational-basis review to choose which felons get their franchise back.

Johnson v. Bredesen is the lead Tennessee precedent. There, plaintiffs were felons who had served their prison time and met supervised-release conditions but were ineligible for restoration because they owed child support or restitution. The federal district court rejected every constitutional challenge:

• Equal Protection / Fourteenth Amendment: Wealth is not a suspect class; the financial-obligation conditions are rationally related to encouraging completion of sentences.
• Twenty-Fourth Amendment (poll tax): The conditions are not "taxes" on voting; they are sentence-completion requirements.
• Ex Post Facto Clauses (US and TN): The conditions are civil, not punitive; they regulate restoration, not the underlying criminal punishment.
• Privileges and Immunities Clauses: Same rationale as equal protection; the conditions survive rational-basis review.

The AG concluded that adding fines and court costs to the same constitutional framework yields the same result. The legal arguments, the standard of review, and the precedents all carry over.

Citations and references

Statutes and constitutional provisions:

• Tenn. Code Ann. § 40-29-202(b) (eligibility exceptions: restitution)
• Tenn. Code Ann. § 40-29-202(c) (eligibility exceptions: child support)
• U.S. Const. amend. XIV (Equal Protection, Privileges and Immunities)
• U.S. Const. amend. XXIV (poll tax)
• U.S. Const. art. I, § 10 (Ex Post Facto)
• Tenn. Const. art. I (Tennessee Ex Post Facto and Privileges and Immunities provisions)

Cases:

• Johnson v. Bredesen, 579 F. Supp. 2d 1044 (M.D. Tenn. 2008) (upholding TN financial-obligation restoration conditions)
• Wesley v. Collins, 791 F.2d 1255 (6th Cir. 1986) (no fundamental right to vote for felons)
• Johnson v. Bush, 214 F. Supp. 2d 1333 (S.D. Fla. 2002), aff'd on other grounds, 405 F.3d 1214 (11th Cir. 2005) (en banc)
• Coronado v. Napolitano, No. CV-07-1089-PHX-SMM, 2008 WL 191987 (D. Ariz. Jan. 22, 2008)

Prior AG opinion:

• Op. Tenn. Att'y Gen. 06-148 (Sept. 29, 2006)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-074.pdf

Original opinion text

May 24, 2010
Opinion No. 10-74

Constitutionality of Felon Voting Restoration Bill

QUESTION

Tenn. Code Ann. § 40-29-202 sets forth guidelines for the restoration of the voting franchise to citizens convicted of a felony. HB969 would amend subsection (b) to exclude from eligibility those convicted felons who have not paid all restitution to the victim or victims of the offense ordered by the court as part of the sentence, all fines imposed by the court as part of the sentence, and all court costs assessed against the person following the conviction. Does this exception violate the United States or Tennessee Constitutions?

OPINION

It is the opinion of this Office that the exception contained in HB969 is constitutional, because felons do not have a fundamental right to vote, the statute in question does not discriminate against a suspect class, and the State has a legitimate interest in encouraging convicted felons to complete their entire sentences, including the payment of legal financial obligations arising from a court order.

ANALYSIS

Tenn. Code Ann. § 40-29-202 sets forth guidelines governing the restoration of the elective franchise to persons convicted of an infamous crime (i.e., felons). Under these guidelines, the following categories of felons are eligible to have their elective franchise restored: (1) those who have received a pardon that does not contain restrictive conditions relating to the right of suffrage; (2) those who have been discharged from custody after serving the maximum sentence imposed by the sentencing court for the infamous crime committed; and (3) those who have been granted a final discharge by the applicable county, state, or federal authority. The statute further contains exceptions to these eligibility guidelines. Specifically, those convicted felons who have not paid all restitution to the victim or victims of the offense ordered by the court as part of the sentence and those convicted felons who are not current in their child support obligations are not eligible to have their voting rights restored. Tenn. Code Ann. § 40-29-202(b) and (c).

HB969 would amend subsection (b) of this statute to also exclude from eligibility for restoration of voting rights those felons who have not paid all fines imposed by the court as part of the sentence and all court costs assessed against the person following the conviction. You have asked whether these provisions of HB969 are constitutional. This Office has previously opined that the current exceptions contained in Tenn. Code Ann. § 40-29-202, including the exception for convicted felons who have failed to pay all of the restitution ordered as part of the sentence, is constitutional. See Op. Tenn. Att'y Gen. 06-148 (September 29, 2006).

Furthermore, in Johnson v. Bredesen, 579 F.Supp. 2d 1044 (M.D.Tenn. 2008), the United States District Court for the Middle District of Tennessee also upheld the exceptions contained in Tenn. Code Ann. § 40-29-202 as constitutional. In that case, plaintiffs were convicted felons who had served their prison sentences and satisfied the conditions of supervised release; however, they were ineligible to register to vote because they owed past-due child support payments and/or restitution to the victims of the crimes for which they were convicted. Id. at 1049. The plaintiffs asserted that the exceptions contained in Tenn. Code Ann. § 40-29-202, by denying the vote to those who have not satisfied certain legal financial obligations, violated their fundamental right to vote and discriminated among citizens on the basis of wealth in violation of the Equal Protection Clause of the United States Constitution. Plaintiffs also asserted that the statute's exceptions violated the Twenty-Fourth Amendment to the United States Constitution (prohibition on the imposition of a poll tax); the Ex Post Facto Clauses of the United States and Tennessee Constitutions, and the Privileges and Immunities Clauses of the United States and Tennessee Constitutions. Id. at 1048.

The district court first noted that the Sixth Circuit Court of Appeals has held that felons do not have a fundamental right to vote. Id. at 1050 (citing Wesley v. Collins, 791 F.2d 1255, 1261 (6th Cir. 1986)). As such, the court held that the State's decision to restore voting rights to some convicted felons and not to others is not subject to the strict-scrutiny standard; rather the court must find such distinctions do not violate equal protection so long as they do not discriminate against a suspect class and bear a rational relationship to a legitimate state interest. Under this rational-basis standard, the district court found that the exceptions contained in Tenn. Code Ann. § 40-29-202 did not violate the Equal Protection Clause, as it was clearly established that wealth, or lack thereof, is not a "suspect classification" and that the exceptions were rationally related to the State's legitimate interest in, among other things, encouraging convicted felons to complete their entire sentences, including the payment of restitution. Id. at 1053-54.

The district court further found that "[i]t is not unreasonable or impermissible for a state to require a convicted felon to complete his entire sentence, including the payment of restitution, prior to having his voting rights restored" and that the imposition of such a requirement "cannot reasonably be construed as a 'tax' on voting" in violation of the Twenty-Fourth Amendment. Id. at 1058-59 (citing to Johnson v. Bush, 214 F.Supp.2d 1333 (S.D.Fla. 2002), aff'd on other grounds, 405 F.3d 1214 (11th Cir. 2005) (en banc) and Coronado v. Napolitano, No. CV-07-1089-PHX-SMM, 2008 WL 191987, at 4-5 (D. Ariz. Jan. 22, 2008)). The court also found that the provisions of Tenn. Code Ann. § 40-29-202(b) and (c) did not violate the Ex Post Facto Clauses of the United States and Tennessee Constitutions because they were civil, non-punitive measures for regulating applications to have the right to vote restored and did not either alter the definition of the crimes for which the plaintiffs were convicted or increase the punishment associated therewith. Rather, the only thing that changed was the conditions governing plaintiffs' ability to regain the right of suffrage. Id. at 1060-61. Finally, the district court found the exceptions contained in Tenn. Code Ann. § 40-29-202(b) and (c) did not violate the Privileges and Immunities Clause for the same reasons that they did not violate the Equal Protection Clause, i.e., the exceptions were rationally related to a legitimate governmental interest. Id. at 1062.

As noted, HB969 would add two additional exclusions to the eligibility guidelines set forth in Tenn. Code Ann. § 40-29-202: (1) convicted felons who have not paid all fines imposed by the court as part of the sentence and (2) convicted felons who have not paid all court costs assessed against the person following the conviction. Under the same reasoning applied by the court in Johnson v. Bredesen, supra, we think a court would find that requiring convicted felons to satisfy these legal financial obligations arising from a court order prior to having their voting rights restored is constitutional.

ROBERT E. COOPER, JR.
Attorney General and Reporter

GINA J. BARHAM
Deputy Attorney General

JANET M. KLEINFELTER
Deputy Attorney General

Requested by:

The Honorable Brenda Gilmore
State Representative
22 Legislative Plaza
Nashville, TN 37243

(Note: As of May 21, 2010, HB969 and its companion bill SB440 had passed the Senate and House, but the House adopted an amendment not yet voted on in the Senate. This opinion does not discuss these amendments because the request concerns the bill's constitutionality as originally drafted. Moreover, the bill as amended thus far is less onerous to the restoration of voting rights than the original bill.)