10/6/10
Thoughts/questions
Lawsuits have the significant benefit of focusing and highlighting. The ytake a long time and
cost resources. They can persuade the neutral and those against. They also can balkanize. They
can undermine goodwill and offend friends.
Outcome
If the lawsuit were to prevail, what would be the precise outcome? I’d like to see that stated with
specificity?
What advances the effort best?
The memo concludes that a lawsuit would strengthen the effort for legislative/constitutional
change by providing vivid examples. But those examples can be provided without a lawsuit,
can’t they?
Who would be the plaintiff(s)?
Would it have to be ex-felons who asked to have their rights restored and were denied? If so, are
there really ex-felons like that now who would be sympathetic since this Governor is now
granting partial pardons to virtually all that apply? Couldn't the defense's argument be that the
180,000 would likely have their rights restored if they'd only ask this Governor?
The memo (page 2) says the plaintiff's would be a narrow class which increases the chance of
prevailing but does it throw the remainder under the bus? The memo says that it would not be
unconstitutional to have a lifetime ban for some. Doesn't a lawsuit highlight that and doesn't that
detract from trying to help all of them who are likely now getting restored by this Governor and
who would be restored if the constitution were changed?
National consensus.
™
If this is a critical factor, what is the precise national consensus beyond "no lifetime ban" on
what is an appropriate punishment and is that an acceptable result as an outcome?
Proof
Is there solid proof that restoration does increase rehabilitation and reintegration or would that be
subject to successful attack by the defense? What is our historical reason for this being adopted.
John Roach was aggressive in saying it was not explained historically by race. Is he correct or
not?
Defense
Does creating a situation that requires an Attorney General to defend this help or hurt. In other
words, does an Attorney General, who may be for or neutral on restoration of rights, have to take
a public stance against it to do his job?
Legal analysis
We need more analysis of the various disenfranchisement challenge cases to see what they teach
in terms of proof and legal issues, including:
Simmons v. Galvin, 575 F.3d 24 (1st Cir.2009);
Hayden v. Pataki, 449 F.3d 305 (2d Cir.2006) (en banc);
Johnson v. Governor of State of Fla., 405 F.3d 1214 (11th Cir.2005) (en banc).
Farrakhan v. Gregoire, 590 F.3d 989 (9th Cir), rehearing en Banc Granted by Farrakhan v.
Gregoire, 603 F.3d 1072 (9th Cir. Apr 28, 2010)
Evaluation of whether a lawsuit is overall an advantage or not.
Most would say that absent a significant change the likelihood of the bill passing the KY Senate
is low for now.
How have other states that have achieved reform done it, legislative advocacy? Legal action?
Does a lawsuit that has a narrow class and highlights vivid examples and that may have an
outcome that is far less than the constitutional changes add enough to this effort to be better than
a context without a lawsuit.
What discovery would be done?
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