"Voting Rights in Kentucky, Felons Who Have Completed All Terms of Their Sentences Should Have the Right to Vote" Report, 2009 September

Voting Rights in Kentucky

Felons Who Have Completed All Terms of
Their Sentences Should Have the Right to Vote

Kentucky Advisory Committee to the
United States Commission on Civil Rights

September 2009

This is the work of the Kentucky Advisory Committee to the United States Commission on Civil Rights.
The views expressed in this report and the recommendations contained herein are those of the members of
the Kentucky Advisory Committee and do not necessarily represent the views of the Commission, its
individual members, or the policies of the United States Government.
The United States Commission on Civil Rights

The U.S. Commission on Civil Rights is an independent, bipartisan agency established by
Congress in 1957, reconstituted in 1983, and reauthorized in 1994. It is directed to
investigate complaints alleging that citizens are being deprived of their right to vote by
reason of their race, color, religion, sex, age, disability, or national origin, or by reason of
fraudulent practices; study and collect information relating to discrimination or a denial
of equal protection of the laws under the Constitution because of race, color, religion,
sex, age, disability, or national origin, or in the administration of justice; appraise federal
laws and policies with respect to discrimination or denial of equal protection of the laws
because of race, color, religion, sex, age, disability, or national origin, or in the
administration of justice; serve as a national clearinghouse for information in respect to
discrimination or denial of equal protection of the laws because of race, color, religion,
sex, age, disability, or national origin; submit reports, findings, and recommendations to
the President and Congress; and issue public service announcements to discourage
discrimination or denial of equal protection of the laws.

The State Advisory Committees

By law, the U.S. Commission on Civil Rights has established an advisory committee in
each of the 50 states and the District of Columbia. The committees are composed of state
citizens who serve without compensation. The committees advise the Commission of
civil rights issues in their states that are within the Commission’s jurisdiction. More
specifically, they are authorized to advise the Commission on matters of their state’s
concern in the preparation of Commission reports to the President and the Congress;
receive reports, suggestions, and recommendations from individuals, public officials, and
representatives of public and private organizations to committee inquiries; forward advice
and recommendations to the Commission, as requested; and observe any open hearing or
conference conducted by the Commission in their states.

This report can be obtained in print form or on disk in Word format from the Southern Regional Office,
U.S. Commission on Civil Rights, 61 Forsyth St., SW, Suite 18140, Atlanta, GA, 30303. It is also posted
on the web-site of the Commission at www.usccr.gov.
Letter of Transmittal

Kentucky Advisory Committee
to the U.S. Commission on Civil Rights

Members of the Commission:
Gerald Reynolds, Chairman
Abigail Thernstrom, Vice-chair
Todd F. Gaziano

Gail L. Heriot

Peter N. Kirsanow

Arlen D. Melendez

Ashley Taylor

Michael Yaki

Martin Dannenfelser, Staff Director

The Kentucky Advisory Committee submits this report, Voting Rights in Kentucky.
Felons Who Have Completed All Terms of Their Sentences Should Have the Right to Vote, as
part of its responsibility to study and report on civil rights issues in Kentucky. This report by
the Committee was unanimously approved by a vote of 10 yes and 0 no, with no abstentions.

It is the opinion of the Kentucky Advisory Committee to the U.S. Commission on Civil
Rights that persons previously convicted of a felony who have completed all terms of their
sentence and made full restitution should be entitled to having their right to vote restored.

Kentucky's lifetime voting ban for persons convicted of a felony is established in the
State’s Constitution. That restriction, adopted in 1891, was primarily motivated by a concern to
safeguard the electoral process—not to restrict the voting rights of tens of thousands of
individuals who today stand convicted of a felony.

Although former felons may have their voting rights restored through executive pardon
granted by the Governor, the process has been politicized and has varied greatly in its
application dependent upon the Administration. The granting of executive pardon is not subject
to any established law, statute, or regulation. It should be.

The optimal solution to this problem is through the adoption of a Constitutional
Amendment automatically restoring voting rights to former felons. In the absence of the
adoption of a Constitutional Amendment, however, current practices and procedures with
respect to the restoration of voting rights for former felons in Kentucky must be standardized,
not only to de-politicize the process but also to ensure that the large number of former felons
returning to civilian life can become contributing members to society.

To that purpose, the Kentucky Advisory Committee to the U.S. Commission on Civil
Rights calls upon the Governor to initiate a review of the executive pardon process, and to work
with the Legislature as necessary to put in place by statute, rule, and/or regulation an
established process to be followed that will be fair, just, expeditious, and non-political in
granting ex-felons in the State of Kentucky the right to vote.

J. Blaine Hudson, Ph.D.
Chairman
Kentucky Advisory Committee
Kentucky Advisory Committee to the U.S. Commission on Civil Rights

J. Blaine Hudson, Ph.D., Chairman

Louisville

Richard J. Clay, J.D. ** Betty Griffin, Ed.D.
Louisville Frankfort

James Harmon Vickie Maley

Frankfort Paducah

Linda McCray ** Osi Onyekuwluje, J.D. **
Bowling Green Bowling Green

William Summers, V. Phil Tom

Louisville Louisville

Jim Waters

Bowling Green
** — Indicates member of the Kentucky Advisory Committee sub-Committee on Voting Rights.

Note: Regina Gomez was a member of the Kentucky Advisory Committee at the time of the
adoption of this study and during the preliminary stages of the research.

ii
Acknowledgements

This report was prepared under the direction of Peter Minarik, Ph.D., Regional Director,
Southern Region, U.S. Commission on Civil Rights. Brittany Galloway, Simajah Jackson, and
Candice Smith assisted with the background research and conducted interviews with local
officials and civic leaders.

iti
Contents
Introduction

Ex-Felon Disenfranchisement in Kentucky
Extends Back More Than 100 Years

Kentucky One of Only Nine States With
Lifetime Voting Ban for Former Felons

Restriction on Ex-Felon Voting Rights
Established in State Constitution

Former Slave States Used Ex-Felon Statutes To Disenfranchise African
Americans, But Kentucky Statute Enacted Without Racial Animus

Racial Animus Absent in Kentucky's
Adoption of Ex-Felon Voting Statute

Ex-Felon Statutes Adopted in Many Southern States
To Disenfranchise African Americans

Kentucky Constitution Allows for Executive Clemency
Estimated 185,000 Citizens Currently Disenfranchised

Kentucky Constitution Allows For Ex-Felons To Have
Civil Rights Restored Through Executive Pardon

Estimated 185,000 Persons Are
Disenfranchised in Kentucky

House Bill 70 Proposes Vote To Amend
Constitution Regarding Ex-Felon Voting Rights

General Support in State for Restoration of
Voting Rights for Ex-Felons

Findings

Recommendation

Appendix 1 - Official Report of the Proceedings and Debates in the
Convention Assembled at Frankfort, on the Eight Day of September 1890,

to Adopt, Amend, Change the Constitution of the State of Kentucky; Suffrage
and Elections Regarding Restoration of Voting Rights for Ex-Felons

12

15

16

18

19

22

23

24

iv
Tables

Table 1: Restrictions on Voting Rights for Ex-Felons for States
With Lifetime Bans

Table 2: Restrictions on Voting Rights for Ex-Felons for States
Without Lifetime Bans

Table 3. Number of Applicants for Executive Pardon, Number of
Persons with Civil Rights Restored, Percentage of Successful Applicants
1999-2007

Table 4. Kentucky Felony Inmate Population by Class in 2008

16
Introduction

The U.S. Commission on Civil Rights (Commission) is an independent, bipartisan agency
charged with the responsibility to study and collect information relating to discrimination or a
denial of equal protection of the laws under the Constitution because of race, color, religion, sex,
age, disability, or national origin. Addressing voting rights issues has been a central mission for
the Commission since its establishment in 1957. In the 1960s the work of the Commission was
instrumental in passage of the Voting Rights Act of 1965. Most recently, the Commission
addressed the Voting Rights Act in a briefing held October 2005 and in its statutory enforcement
report for FY 2006.' Five years earlier in 2001, the Commission conducted a series of hearings to
examine voting irregularities in Florida during the 2000 Presidential elections.’

State advisory committees are established in each of the 50 states to advise the
Commission and study important civil rights issues in their states. In keeping with the
Commission’s historical attention to voting rights, the Kentucky Advisory Committee to the U.S.
Commission on Civil Rights (Committee), at a meeting of the Committee in August 2008,
decided to examine the issue of ex-felon voting rights in Kentucky. Ex-felons in the state are
denied the right to vote, even after completion of their sentence. The percentage of those
disenfranchised are disproportionately minority, and Kentucky is one of only nine states in the
nation that have a permanent ban on ex-felons having the right to vote.

In examining this issue, the Committee appointed a sub-Committee to examine the
specific history of the state’s ex-felon disenfranchisement Constitutional ban, as well as
government and private studies of ex-felon voting disenfranchisement to include the Federal
Commission on Election Reform. As part of its study, the Committee obtained data from the
U.S. Department of Justice and the Kentucky Department of Corrections regarding incarceration
and recidivism rates, and did an independent analysis of ex-felon disenfranchisement statutes
among the 50 states and the District of Columbia. In addition, opinions on ex-felon voting rights
were solicited from individuals and organizations, and comments were received during an open
comment period.’

This report is a statement of the Committee’s sentiment regarding ex-felon voting rights
in Kentucky. The report is narrowly limited in scope to an examination of the right to vote by ex-
felons in Kentucky, and does not extend to the restoration of other civil rights such as the right to
serve on a jury nor to other issues regarding the re-entry of ex-felons to society, e.g., barriers to
employment. Nor is this study an examination of the judicial system and any alleged racial bias
in arrest, prosecution, or sentencing.

"U.S. Commission on Civil Rights, “Reauthorization of the Temporary Provisions of the Voting Rights Act,”
February 2006 at http://www.sccr.gov/pubs/067006VR Abrief524.pdf and
http://www.usccr.gov/pubs/051006VRAStatReport.pdf.

? U.S. Commission on Civil Rights, “Voting Irregularities in Florida During the 2000 Presidential Election,” June
2001.

> Two public comment periods were announced in the Federal Register. The first comment period was from October
15, 2008, through November 30, 2008. The second comment period was from April 1, 2009, through May 15, 2009.
Ex-Felon Disenfranchisement in Kentucky
Extends Back More Than 100 Years

Kentucky is one of only nine states that has a lifetime voting ban for persons convicted of
a felony. The state’s restriction on ex-felon voting rights is established in section 145 of the state
Constitution, adopted in 1891. The permanent voting ban also applies to those convicted of
treason and bribery in an election.

Kentucky Is One of Only Nine States With
Lifetime Voting Ban for Former Felons

Kentucky is one of just nine states in the nation that has a lifetime voting restriction on
ex-felons. The state is not unique, however, in having some ex-felon voting rights restriction, as
all but two states currently restrict or deny the right to vote to ex-felons in some fashion.* In
addition to the nine states with lifetime bans, 39 other states and the District of Columbia also
have restrictions on ex-felon voting rights, but the restrictions are not lifetime bans. The lifetime
bans, however, are not necessarily permanent, as there are opportunities for certain ex-offenders
to have their right to vote restored.

As a result of ex-felon voting restrictions nationwide, it is estimated that about 4.65
million Americans, or one in 50 adults, is prohibited from voting because of a current or prior
felony conviction.* Moreover, there is no uniform, national standard regarding ex-felon voting
rights among the 50 states. Prohibitions range from allowing incarcerated persons the right to
vote to non-pardonable lifetime bans for certain felony convictions.

In seven of the nine lifetime banning states, including Kentucky, an executive pardon by
the Governor can restore voting rights of an ex-felon. The process of executive clemency is not
uniform across these states, however. For example, Governor Tom Vilsack of Iowa has issued an
executive order that grants executive clemency to offenders who have completed their court-
imposed sentences.° In Arizona and Nevada only repeat offenders need to obtain executive
clemency to have voting rights restored, while first time offenders have their voting rights
restored. In Tennessee, the lifetime ban is reserved for those felons convicted of specific violent
crimes, such as murder or rape. (See Table 1.)

In Mississippi, the state legislature has the authority to restore voting rights to ex-felons,
but the measure requires a two-thirds vote. In Florida, the 4-member cabinet comprises a
Clemency Board, which has discretion to restore voting rights and other civil rights to ex-felons.
In 2007, at the urging of Governor Charlie Crist, the Florida Clemency Board elected to
automatically restore voting rights for many ex-offenders. Under the new rules for clemency,
when an ex-offender in Florida completes his/her sentence, the Parole Commission reviews the
eligibility of the person for his/her eligibility for restoration of civil rights. After review, the
Parole Commission places the ex -felons into one of three categories. Ex-felons placed in Level-
1 status, i.e., those who have committed less severe offenses. They constitute about 80 percent of
all released felons and are eligible for automatic restoration of civil rights. (See Table 1.)

4 Maine and Vermont have no restrictions on the voting rights of felons, even allowing incarcerated prisoners the
right to vote.

5 See Report of the Commission on Federal Election Reform, “NATIONAL COMMISSION ON FEDERAL
ELECTION REFORM (Sept. 2005), supra note 18 (hereafter referred to as Election Reform Report).

© On July 4, 2005, Governor Tom Vilsack issued an executive order automatically restoring the vote to offenders
who have completed their court-imposed sentences.
Table 1: Restrictions on Voting Rights for Ex-Felons in States With Lifetime Bans

Vote by Executive State Cabinet
Legislature Pardon Required to
Restores Voting Restores Voting _ Restore Voting
Rights Rights Rights
Mississippi! Towa? Florida?
Alabama?
Arizona*
Kentucky>
Nevada®
Tennessee”
Virginia®

Note 1. Right to vote may be regained by two-thirds vote of both legislative houses. MISS. CONST. art. XII,§253.
Note 2. Right to vote may be regained by action of the Governor. IOWA CONST. art. IV, §16.

Note 3. Persons convicted of serious violent offenses and sex offenses must apply to the Board of Pardons and
Parole for a Pardon, ALA. CODE §15-22-36.1 (2009) except for treason and impeachment.

Note 4. Repeat offenders, including federal offenders, must apply for judicial restoration or pardon.
ARIZ.REV.STATE.ANN. §§ 13-906, 13-908.

Note 5. Right to vote may be regained by action of the Governor. KY. CONST. §145.

Note 6. Persons with more than one conviction, and persons convicted of Class A and violent Class B offenses must
either petition the Board of Pardons Commissioners for a pardon, or seek restoration of civil rights in the court in
which they were convicted. NEV. REV. STAT.ANN. § 213.090(West 2009).

Note 7. Persons convicted of murder, rape, treason or voter fraud are permanently ineligible to vote unless
pardoned. TENN. CODE. ANN. § 40-29-204.

Note 8. Right to vote regained by action of the Governor. VA. CONST. art. V, §12.

Note 9. Authority to restore voting rights to ex-felons vested with state Cabinet. FL. CONST. art. IV §8.

Source: Kentucky Advisory Committee.

Despite the possibility of clemency, the effect on the voting population of lifetime
disenfranchisement statutes is significant. According to the National Commission on Election
Reform, one-third of the people presently denied the right to vote because of a felony conviction
have completed their sentences. Further, ex-felon disenfranchisement statutes disproportionately
affect African Americans, as nearly 7 percent of black Americans cannot participate in the
electoral process because of a felony conviction. In addition, it is estimated that the
disenfranchisement rate in the nine states that permanently deny voting rates is 5.1 percent—a
tate three times that of the states that impose no disability beyond the period of incarceration,
probation, and parole.’

Among the 39 states without lifetime bans, 13 states restrict the right to vote of
incarcerated persons, but the right to vote is returned upon release from prison. These states are
located in all parts of the country with the exception of the South, and include: Hawaii, Indiana,
Illinois, Massachusetts, Michigan, Montana, New Hampshire, North Dakota, Ohio, Oregon,
Pennsylvania, Rhode Island, and Utah. Five states prohibit individuals from voting both while
they are incarcerated and/or while they are on parole. Again, these five states are located in
different parts of the country with the exception of the South and include: California,
Connecticut, Colorado, New York, and South Dakota.

7 Election Reform Report, pp. 40-1.
Table 2: Restrictions on Voting Rights for Ex-Felons in States Without Lifetime Bans

Ex-Felons
Incarcerated Ex-Felons Prohibited From
Individuals and Prohibited from Voting Until
Incarcerated Persons on Voting Until Specified Years
No Prohibitions IndividualsCan _ Parole Can Not Sentence is Have Elapsed
On Voting Not Vote Vote Fully Complete After Sentence
Maine Hawaii California Alaska’ Delaware!
Vermont Indiana Colorado Arkansas Nebraska?
Illinois Connecticut Georgia Wyoming}
Massachusetts New York Kansas
Michigan South Dakota Idaho
Montana Louisiana
New Hampshire Maryland
North Dakota Minnesota
Ohio Missouri
Oregon New Jersey
Pennsylvania New Mexico
Rhode Island North Carolina
Utah Oklahoma
South Carolina
Texas
Washington
West Virginia
Wisconsin

Note 1. Persons convicted of certain serious offenses (murder, manslaughter, bribery or public corruption, sex
offense) are constitutionally barred from voting unless pardoned or five years after expiration of sentence,
whichever may first occur.. DEL. CONST. art. V, § 2.

Note 2. The right to vote is restored automatically two years after completion of sentence, including and period of
parole. NEB. REV. STAT. § 29-112 (2009).

Note 3. First-time non-violent felony offenders can apply for a certificate that restores voting rights five years after
successful completion of sentence, but all others must apply to Governor for either a pardon or a restoration of
rights. WYO. STAT. ANN. Ann. § 7-13-105(b)(2009).

Source: Kentucky Advisory Committee.

The most prevalent ex-felon voting prohibition among the different states is the denial of
the right to vote until the entire sentence is completed, to include terms of parole, probation, and
all court-ordered restitution. Eighteen states have this limitation: Alaska, Arkansas, Georgia,
Kansas, Idaho, Louisiana, Maryland, Minnesota, Missouri, New Jersey, New Mexico, North
Carolina, Oklahoma, South Carolina, Texas, Washington, West Virginia, and Wisconsin. In
three states, Delaware, Nebraska, and Wyoming, ex-felons are prohibited from voting until a
specified period of years after they have completed their prison term. In Delaware, however,
persons convicted of certain serious offenses are constitutionally barred from voting unless
pardoned; and in Wyoming only first-time non-violent felony offenders have their right to vote
restored, and must formally apply for a right to vote certificate. (See Table 2.)
Restriction on Ex-Felon Voting Rights
Established in State Constitution
Kentucky’s State Constitution, adopted in 1891 and subsequently amended, bans former
felons from voting unless they have received executive pardon from the Governor. Section 145
of the Kentucky Constitution reads:
Every citizen of the United States of the age of eighteen years who has resided in the
state one year, and in the county six months, and in the precinct in which he offers to vote
sixty days next preceding the election, shall be a voter in said precinct and not elsewhere
but the following persons are excepted and shall not have the right to vote.
1, Persons convicted in any court of competent jurisdiction of treason, or felony, or
bribery in an election, or of such high misdemeanor as the General Assembly may
declare shall operate as an exclusion from the right of suffrage, but persons hereby
excluded may be restored to their civil rights by executive pardon.
2. Persons who, at the time of the election, are in confinement under the judgment of a
court for some penal offense.
3. Idiots and insane persons.

There were three earlier state Constitutions in Kentucky, none of which prevented ex-
felons from the right to vote. The first Constitution, adopted in 1792, discussed the right to vote,
and the only reference to a felony conviction restricting the right to vote concerned the right of
voters to be free from arrest when they voted, unless they had committed a crime for which they
were subject to arrest. Article III of the 1792 Constitution reads:

1. In elections by the citizens, all free male citizens of the age of twenty-one years,

having resided in the State two years, or the county in which they offer to vote one year

next before the election, shall enjoy the rights of an elector; but no person shall be

entitled to vote except in the county in which he shall actually reside at the time of the

election.

2. All elections shall be by ballot.

3. Electors shall, in all cases, except treason, felony, and breach of surety of the peace,

be privileged from arrest during their attendance at elections, and in going to and

returning from them.’

In 1799, Kentucky adopted its second Constitution, repealing the first state Constitution.
As in the first Constitution, there was no provision against former felons exercising the right to
vote. Similar to the first state Constitution, the only reference to a felony was that voters were to
be free from arrest going to or returning from the polls absent the commission of a crime. The
second state Constitution, however, added a bar to voting by African Americans.

In all clections for Representatives, every free male citizen (Negroes, mulattoes, and

Indians excepted), who at the time being, hath attained to the age of twenty-one years,

and resided in the state two years, or the county or town in which he offers to vote one

year next preceding the election, shall enjoy the right of an elector; by no person shall be

entitled to vote except in the county or town in which he may actually reside at the time

of the election, except as is herein otherwise provided. Electors shall in all cases, except

treason felon, breach or surety of the peace, be privileged from arrest during their

attendance at, going to, and returning from elections. 8

® KY. CONST. § 145.
° KY. CONST. of 1792 § 3 (superseded in 1799).
KY. CONST. of 1799, art. II, § 8 (superseded in 1850).
In 1850 Kentucky adopted its third state Constitution, superseding the second
Constitution of 1799. The primary purpose for the third Constitution was to amend
representation in the legislature. With respect to voting rights, the new state Constitution
established a 60 day residency requirement in the voter’s precinct of residence, but as in the two
previous Constitutions there was no explicit prohibition on the right of an ex-felon to vote.

Every free white male citizen, of the age of twenty-one years, who has resided in the

State two years, or the county, town, or city, in which he offers to vote, one year next

preceding the election, shall be a voter; but such voter shall have been, for sixty days,

next preceding the election, a resident of the precinct in which he offers to vote, and he

shall vote in said precinct, and not elsewhere."!

Voters in all cases, except treason felon, breach or surety of the peace, shall be privileged
from arrest during their attendance at, going to, and returning from elections.

Ten years after the adoption of the state’s third Constitution, the nation was engulfed in a
Civil War between the Northern states and the Southern states. At the beginning of the Civil
War, Kentucky was a divided state in terms of its loyalty and its ultimate alliance with either the
North or the South hung in the balance and was the subject of intense political pressure from
both sides. Though close in proximity to the North and increasingly interdependent with the
region economically, Kentucky was a “slave state” and at the beginning of the war slaves
comprised nearly 20 percent of the state’s population. By heritage as well, Kentucky had close
ties to the South as the ancestors of many Kentuckians hailed from Southern states like Virginia,
North Carolina, and Tennessee.

As events unfolded and Southern states seceded from the Union in 1861, both the North
and the South sought a formal alliance with the Commonwealth of Kentucky. The Governor of
Kentucky, Beriah Magoffin, personally believed that a state had the right to secede, but still
made repeated diplomatic efforts prior to open hostilities to avert war and prevent a disruption of
the Union. With a similar sentiment, in the Spring of 1861 the state legislature passed a proposed
Thirteenth Amendment to the Constitution that would have guaranteed slavery in states where it
was already legal. Public opinion in the state, however, was turning to a formally pro-Union
sentiment, and in special congressional elections held in June 1861 Unionist candidates won nine
of Kentucky's ten congressional seats and the state remained part of the Union.

After the war, the First Reconstruction Act of 1867 mandated that to re-enter the Union,
former Confederate states had to adopt new constitutions guaranteeing male suffrage without
regard to race. To further strengthen voting rights for minorities, in 1870 Congress adopted the
Fifteenth Amendment, which guaranteed an equal right to vote regardless of race, color, or
previous condition of servitude. Kentucky was in a peculiar position. Though a former “slave
state” Kentucky had not seceded from the Union, so the First Reconstruction Act of 1867
requiring a new state Constitution did not apply. Yet, the state Constitution as adopted in 1851
was now in violation of recent Amendments to the federal Constitution, and was therefore in
need of revision. Complicating the situation further was the fact that the constitution of 1851
contained a stringent constraint on convoking of a Constitutional Convention, requiring the
approval of a majority of those eligible to vote.

'' KY. CONST. of 1850, art. II, § 8 (superseded in 1891).
" Tid. Article II, Section 9.
As carly as 1867, the Governor of Kentucky recommended to the legislature that the
question of convening a Constitutional Convention for the purpose of revising the state’s
Constitution be put to a vote by the public. The legislature responded and in both 1871 and 1873
passed legislation “to take the sense of the people on calling a convention to revise the
constitution.” The proposition, however, did not garner the support of a majority of those
eligible to vote, despite the public endorsement of both political parties.

The two major parties would continue to publicly endorse the call for a constitutional
convention over the succeeding years. At last the constitutional requirement was deemed
satisfied by a circumventive legislative act in 1886, which provided that those who came to vote
in the general election in 1887 could be considered as the total entitled to vote. The measure
received majority approval in 1887, and the same procedure was followed at the next election in
1889 and again won majority approval and a constitutional convention was convened in 1890,
with Cassius M. Clay, Jr., elected president of the convention.'? The 1890 constitutional
convention would adopt a new provision absent from the previous three state Constitutions, one
that removed the right to vote from persons convicted of felony, as well as those persons
convicted of bribery or treason, persons imprisoned at the time of the election, and insane
persons.

'3 See, Hamilton Tapp and James C. Klotter, “Kentucky—Decades of Discontent 1865-1900,” Chapter XII, The
Constitutional Convention 1890-1891, pp. 284-98 (Kentucky Historical Society, University of Kentucky Press,
1977).
Former Slave States Used Ex-Felon Statutes To Disenfranchise African Americans
But Kentucky Statute Enacted Without Racial Animus

In recent years historical researchers have taken to an examination of the minutes and
proceedings of state constitutional conventions looking for statements and sentiments of racial
animus behind the adoption of ex-felon voting prohibitions. In the ensuing decades after the
Civil War, ex-felon statutes were found to have been adopted in many Southern states for the
expressed purpose of limiting the right to vote of African Americans. However, the adoption of
an ex-felon voting prohibition by Kentucky during that period was done without a motive of
racial animus, but rather out of a primary concern to ensure the integrity of the electoral process.

Racial Animus Absent in Kentucky’s
Adoption of Ex-Felon Voting Statute

The United States has a long history of voter exclusion and disenfranchisement on the
basis of race. In the ensuing decades after the Civil War, despite clear prohibitions against race
discrimination in voting, most former Confederate states adopted barriers that although neutral
on the surface served to prevent many blacks from voting. Such barriers included poll taxes,
literacy tests, grandfather clauses,’ additional residency requirements, registration harassment,
and other intimidation tactics.'° As a result, voting rights continued to be a legal fiction for
people of color in many parts of the South despite Constitutional protections.

Another tactic used in some states to deny African Americans the right to vote was the
adoption of ex-felon statutes. Legal and historical scholars generally categorize arguments for
ex-felon disenfranchisement statutes into four categories: (1) punishment for crime, (2)
promotion of citizen character, (3) prevention of electoral fraud and the impeding of criminal
interests, and (4) racial bigotry. The punishment and deterrence rationale argues that ex-felon
disenfranchisement statutes deter future criminal activity. The citizen character argument
supports the notion that eligible voters should have certain basic character traits. The concern
over electoral fraud and criminal activity has as its basis that individuals bent on criminal
activity, if left unchecked, will undermine the electoral process and will work to advance their
criminal intentions under the guise of the political process.'*

The fourth reason was simply racial animus. Similar to other former slave states in the
second half of the 19" century following the Civil War, a state constitutional convention was
convened in Frankfort, Kentucky, to re-write the state’s Constitution, and at that convention.
proposed that ex-felons be banned from voting.'” The specific impetus for the Constitutional
convention was ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S.
Constitution, since much of the existing state Constitution adopted prior to the Civil War
provided protection for slave ownership and was now at odds with the Federal Constitution.

'4 “Grandfather” and “old soldier” clauses exempted from literacy tests and other voting restrictions anyone who had
served in the United States or Confederate army or navy, their descendants, and anyone who had himself voted, or
whose father or grandfather had voted before January 1, 1867.

'S ‘The infamous 1964 murder and burial of the bodies of three civil rights workers in a partially constructed dam
near Philadelphia, Mississippi, because of their work to register African Americans in Neshoba County is an
example of retaliation against voter registration efforts.

'6 See inter alia John Dinan, “The Adoption of Criminal Disenfranchisement Provisions in the United States:
Lessons from State Constitutional Convention Debates,” Journal of Policy History, vol. 19, no. 3, 2007.

"7 States holding Constitutional Conventions between 1865 and 1900 to revise or re-write their Constitutions
included: Alabama, Arkansas, Delaware, Florida, Georgia, Kentucky, Maryland, Mississippi, North Carolina, South
Carolina, Tennessee, and Texas.
The Kentucky Constitutional Convention of 1890 was held in a turbulent time, and there
had been many changes in society since the last Constitution had been adopted in 1850. A long
and bloody civil war had disrupted the nation; corporations had emerged as powerful entities; the
railroads had brought dramatic changes in commerce; and waves of immigrants and migrations
of people were swelling formerly sparsely populated parts of the country into dense urban areas.
The Kentucky legislature had attended to these social and economic changes with legislation
applicable to only a particular area or situation, but it was clear that the former Constitution was
not suitable for an emerging industrial state with large urban concentrations of commerce, In
addition, bribery, open vote buying, and public corruption were widespread concerns throughout
the state, and just a few years before the convening of the Convention the State Treasurer had
absconded with virtually all the money in the State Treasury.

It was in this atmosphere that the delegates gathered in Frankfort on September 8, 1890,
to revise Kentucky's Constitution. Their resolve to prevent past abuses resulted in a Constitution
that was much longer and contained more specific restrictions than any of the three previous
state Constitutions. Breaking with the previous Constitutions, the delegates to the convention
also adopted a disenfranchisement provision that prohibited any person convicted of a felony
from the right to vote. However, in contrast to the racial animus that marked the enactment of ex-
felon disenfranchisement statutes in other former slave states, the historical record suggests that
the primary purpose for delegate support for the ex-felon statute was a concern over electoral
fraud.'* The record of the proceedings of the 1890 constitutional convention assembled in
Frankfort, Kentucky, and other contemporaneous accounts offer no evidence of an effort by the
delegates or individual delegates to suppress the African American vote in the state.

In December 1890, the committee on elections reported to the committee of the whole
and recommended that all males with established residency in the state be given the right to vote,
with three exceptions: (1) Persons convicted of treason, bribery, or felony; (2) persons
incarcerated in prison or jail; and (3) the insane. In their deliberations about suffrage, an
examination of the proceedings and debates at the 1890 Convention show the assembly primarily
interested in preserving the integrity of the electoral process and most of the debate centered
around a shared concern of bribery in state and local elections.'” Delegate Blackburn
summarized this position:

We are all agreed that the purpose of this discussion and this work is to protect the ballot-

box from fraud and corruption. The Committee unquestionably had that purpose in view

when they made this report, and the only difference between us is as to the best mode of

accomplishing that purpose. *°

A further reading of the proceedings reveals that almost the entire debate surrounding the
loss of the right to vote centered on bribery. Delegate after delegate rose to speak to their fellow
delegates to be resolute about preventing fraud in the electoral process. As an example, Delegate
Rodes so implored his fellow delegates with the following words:

18 See, “A Citizens’ Guide to the Kentucky Constitution,” Research Report No. 137, Legislative Research
Commission, Frankfort, Kentucky, 2005.

'® See, “Official Report of the Proceedings and Debates in the Convention Assembled at Frankfort, on the eight day
of September 1890, to Adopt, Amend, or Change the Constitution of the State of Kentucky,” Elections, Dec. 10,
1890, pp. 1883-1904 (hereafter referred to as Kentucky Convention Proceedings).

9 Thid., Delegate Blackburn, p. 1893.
Now, if there is any danger in the world to our institutions, it must grow out of impure
elections. If the ballot-box is once thoroughly corrupted, it leads, of course, to
misunderstanding. The people will not submit to corruption in their elections, if they can
prevent it. Misunderstandings lead to collisions, collisions lead to bloodshed, bloodshed
produces conflagrations, conflagrations produce earthquakes. You might say, if there is
any thing in the world, out of which danger may arise to our institutions, it will come
from this....Public sentiment is a great controller of our age, and if we have only a
modicum of public sentiment-pure, incorruptible and undefiled, it will some time
manifest itself. Corruption grows. It is a germ. The germ theory in this age is the one now
pervading medical circles. Let this germ enter into social system, and it will grow and
spread.”!

Delegate Applegate reaffirmed the general Convention sentiment of concern about
bribery and corruption in public affairs, and argued for using the Constitution to protect the
citizenry.

We shall never succeed in elevating the ballot by statutory law, but we should throw it

about all the protection that the Legislature can, and every means should be resorted to as

possible to prevent bribery and corruption.”

The record shows that it was an overriding concern with bribery and public corruption on
the part of the delegates that prompted the convention to hold that the commission of a felony
should forfeit one’s right to vote. Delegate Applegate told the convention:

We are now at a period in history when we cannot afford to blink at crime....(and) the

other classes of offenses named in the Constitution which we say shall disqualify a man

have an effect upon society in every respect. Treason is so odious that we will convict a

man for treason. All felonies affect individuals directly. So we need not entertain any

apprehension about the Legislature passing wholesome laws to punish the offenses of

felony, when a man is punished for an offense he has committed, which prescribes that he

shall be disqualified from voting.

In this environment, Delegate Blackburn summarized the rationale for the felony
disenfranchisement provision. It would not only maintain the integrity of the electoral process,
but also serve as an inducement to advance a good citizenry.

T have no more interest in the work of this Convention than any other Delegate. It is a

pride to do our work so as to meet the approval and endorsement of the people of this

,Commonwealth when we send it to them; and I do hope that, before we pass from this

question, we will make it so clear and so unmistakably plain, that the humblest and

simplest citizen in this Commonwealth may understand what the penalty shall be for
every Violation of the law. It occurs to me that that settles the question.”

Not only is there an absence of racial animus as recorded in the proceedings, there are
specific statements of race neutrality and other statements of support for civil rights. For
example, speaking in support of the Constitution being amended to curtail bribery, Delegate

2! Tbid., Delegate Rodes, p. 1887.
» Tbid., Delegate Applegate, p. 1888.
3 Thid., Delegate Blackburn, p. 1894.

10
Bullitt spoke about how the state had expelled the Ku Klux Klan from the state, referring to the

group as a “poison.”

Here is an evil we all admit. We are all striving to get rid of the evil of bribery in
elections. We are but human, and we have to deal with human methods.....I do not care
whether it is buying a witness, or by excusing him from punishment because he
testifies... We do excuse one conspirator who testifies against another conspirator for the
protection of society. In the Ku-Klux law we had to use it—it was the only remedy to
reach the disease, and after the system was adopted to allow witnesses to go scot-free, we
worked out of this State the Ku- Klux business, and it could not be reached until that was

done.”

Recent allegations and federal charges against local officials for election fraud in the state
offer modern day support for the convention delegates’ concern about election fraud on the part

of public officials. In 2008, the Associated Press reported on a case of alleged widespread

bribery of voters in Clay County that had been ongoing over the past several decades.

Folks in the hardscrabble town (of Manchester) tucked into the Appalachian hills do not
seem to have much hope when they talk about the latest bunch of officials accused of
masterminding crooked county elections. Residents say votes could be bought for years,
underscored by the March indictment of eight officials accused of rigging elections in
Clay County. Federal prosecutors say they were part of a scheme to extort undisclosed

amounts of cash allegedly used to bribe voters at the polls...

“Politics in Clay County have been crookeder than a barrel of fish hooks,” said Ronnie
Cottongim, a 60-year-old disabled coal miner. “When people are trying to make ends

meet, they'll do whatever they can to put groceries on the table...”

Public corruption cases are not a novelty in Manchester. In 2007, a former longtime
mayor, an ex-assistant police chief and two former city councilmen were sentenced to
prison in another corruption case. Among those charged in the most recent case are a
judge known for his toughness and a school superintendent.... They are accused of being
‘political bosses’ who recruited candidates and then tried to swing elections in their favor.
Those two, along with a county clerk accused of doling out cash to voters at the polls,

have pleaded not guilty. Five alleged accomplices also pleaded not guilty...

Many say buying and selling votes has simply been a way of life in eastern Kentucky,
and Clay County has hardly been immune. Little has changed over time—except,
perhaps, the tactics. “Used to, you could see them shell the money out in the open, right
at the polls,” said Carl Hubbard, 75, a retired farmer and coal truck driver. “They kind of

hide it now.”

Authorities say elections have not been ‘clean’ in Clay County for years. Prosecutors
claim that longtime judge Russell Cletus Maricle and school Superintendent Douglas C.
Adams led a group that recruited slates of candidates and then tried to rig elections in

their favor in 2002, 2004 and 2006.

While his fellow defendants were released after arraignment, Maricle was ordered to stay
in jail until trial... Federal officials alleged at the detention hearing that Maricle had tried

to sway a witness testifying before the grand jury investigating the case...

% Tbid., Delegate Bullitt, p. 1897.

11
Clay County Clerk Freddy Thompson allegedly provided money for election officers to
buy votes, the indictment claimed. Thompson also told election officers how to change
votes at the machines, it said. Some voters were bribed at the voting booths, the
indictment said, and some officials allegedly told voters to use booths incorrectly so they
could go back and change the tallies.

Doug Abner, a community activist and senior pastor at the nondenominational
Community Church in Manchester, has prayed for years with his congregation for “God
to expose the darkness” of the manipulated system. But he knows clearing out corruption
won't be easy. “We have an element of people who don't think there's even a problem
with selling or buying votes,” he said. “Obviously, when you get in that shape, you're
headed in the wrong direction.” 2s

Ex-Felon Statutes Adopted in Many Southern States
To Disenfranchise African Americans

In contrast to the Constitutional proceedings in Kentucky, explicit racist language and
motivations are observed in the proceedings, minutes, and commentary at other late 19" century
Constitutional conventions of other former slave states with respect to the adoption of ex-felon
voting prohibitions. These conventions include: Alabama, Florida, Mississippi, Virginia, South
Carolina, and even Oregon in the far west.

In 1901 Alabama adopted a Constitutional criminal disenfranchisement provision. Article
VIII, §182, of the state Constitution provided for the disenfranchisement of persons convicted of
certain enumerated felonies and misdemeanors, including “any crime involving moral turpitude.”
The president of the convention, John Knox, made it clear at the start of the convention that the
dominant purpose of the assembly was “to establish white supremacy in the State.”?° Another
delegate, John Fielding Burns, made it clear that his intent in adding numerous specific crimes to
the list of disqualifying offenses was to target African Americans.”

In 1984, when county registrars in the state disenfranchised individual African Americans
under §182 because they had previously been convicted of presenting worthless checks, the
aggrieved citizens brought action in federal court on a claim that the misdemeanors encompassed
within §182 were intentionally adopted to disenfranchise blacks on account of their race.”* The
case ultimately went before the Supreme Court, and in a unanimous opinion the Court found that
the disenfranchisement of blacks was a major purpose for the convention at which the Alabama
Constitution of 1901 was adopted, and that the section as applied to misdemeanants violated the
Fourteenth Amendment.”

Similar to Kentucky, both Mississippi and South Carolina held constitutional conventions
late in the nineteenth century, Mississippi in 1890 and South Carolina in 1895. Both conventions
modified their criminal disenfranchisement provisions in ways that contemporaneous accounts
indicate were clearly motivated by racial animus, primarily by expanding the list of disqualifying

25 Bruce Schreiner, “Election Fraud Case Stirs Disgust in Clay County,” Associated Press, Apr. 13, 2009.
26 John Dinan, “The Adoption of Criminal Disenfranchisement Provisions in the United States: Lessons from State
Constitutional Convention Debates,” Journal of Policy History, vol. 19, no. 3, 2007.
Tee
Ibid.
. Hunter v. Underwood, 471 U.S. 222 (1985).
Id.

12
crimes to include crimes for which African Americans were thought to be more prone to
prosecution.*°

Regarding the Mississippi Convention of 1890, the Mississippi Supreme Court in Ratliff
v. Beale noted: “Restrained by the federal constitution from discriminating against the negro
race, the (Mississippi) convention discriminated against its characteristics, and the offenses to
which its weaker members were prone... Burglary, theft, arson, and obtaining money under false
pretenses were declared to be disqualifications, while robbery, and murder, and other crimes in
which violence was the principal ingredient, were not.”! As for the South Carolina convention
of 1895, a delegate moved to add to the to the list of disenfranchising, crimes that included
housebreaking, receiving stolen goods, fornication, sodomy, assault with intent to ravish,
miscegenation, incest, and larceny, and to strike out theft and the middle class crime of
embezzlement. The conventioneers agreed, as they did to another member’s proposal to include
wife-beating. Murderers, however, were allowed to vote.”

The historical record shows Florida, too, using ex-felon statutes to limit the franchise of
African Americans. Immediately after the Civil War, Florida initially refused to allow blacks to
vote and denied African Americans the right to vote in its 1865 Constitution. The following year,
Florida also rejected the 14" Amendment and established additional crimes, including a new,
expansive type of larceny, in order to address the altered condition of free blacks living in the
state. It was only in 1868 that the state convened a second post-war constitutional convention,
which ultimately guaranteed universal suffrage to all males, including blacks. However, although
the 1868 constitution did comply with the First Reconstruction Act of 1867 and guaranteed
universal suffrage to all males, Section 4 of the Constitution contained a provision for the
disenfranchisement of ex-felons.*®

In 2000 a class action suit was filed in federal court in Johnson et al v. Governor of
Florida on behalf of all Florida citizens who had been convicted of a felony and had completed
all terms of their incarceration, probation, and parole but who were barred from voting under the
state’s felon disenfranchisement law. The 11" Circuit noted in Johnson that a reasonable fact-
finder could conclude that a discriminatory animus was behind the felon disenfranchisement
provision adopted in 1868. In particular, the court noted that the 1868 constitutional convention
proposed a new suffrage article that automatically disenfranchised those persons convicted of
infamous crimes while restoring suffrage to ex-Confederates. Then, at the last moment, the
delegates substituted yet another, arguably even more stringent suffrage article that changed the
disenfranchisement provision’s scope from infamous crimes to all felonies and specifically
enumerated in the list of crimes that of larceny, which the 1865 legislature had expanded to

°° In a discernibly different temper from Mississippi, the delegates at the Kentucky Convention demonstrated a
concern that an ex-felon voting prohibition statute might serve to have an unintended effect in the future, i-c., the
legislature might at its discretion declare any certain crimes felonies or high misdemeanors with the intent to limit
the franchise of certain citizens. An amendment was offered and rejected that would have limited ex-felon
disenfranchisement to the ‘felonies as now defined by law.’ In the end, the delegates acted to allow the Legislature
the latitude to define a felony, and with it the exclusion from the right of suffrage. See Kentucky Convention
Proceedings, pp. 1883-1904. °°

3! Ratliff v. Beale, 20 So. 865, 868 (Miss. 1896).

2 J. Morgan Kousser, “The undermining of the first reconstruction: lessons for the second,” working paper,
California Institute of Technology, Pasadena, CA, p. 35 at http://resolver.caltech.edu/CaltechAUTHORS:200908 14-
110251466 (last accessed April 14, 2009).

33 Section 4 provided: No person under guardianship, non compos mentis, or insane, shall be qualified to vote at any
election, nor shall any person convicted of felony by a court of record be qualified to vote at any election unless
restored to civil rights.

13
address the emancipation of blacks.** In 2007, at the urging of Governor Crist, the Florida
Clemency Board issued revised rules of executive clemency for ex-felons. All released non-
violent offenders may now have an executive order issued that automatically and immediately
grants a restoration of civil rights signed by the Clemency Board without a hearing. All other
individuals not determined to be Level-1 or Level-2 must petition the Clemency Board to have
their civil rights restored.** .

4
Id.
35 ELA. PAROLE COMM’N, RULES OF EXEC. CLEMENCY §5E (2007).

14
Kentucky Constitution Provides for Executive Clemency
Estimated 185,000 Citizens Currently Disenfranchised

The Kentucky Constitution allows for ex-felons to have voting rights restored by executive
pardon. It is estimated that approximately 185,000 persons are currently disenfranchised in the
state of Kentucky. Legislation has been introduced into the General Assembly that proposes the
electorate vote to amend state Constitution to implement a simplified process for the restoration of
civil rights to eligible felony offenders,

Kentucky Constitution Allows For Ex-Felons To Have
Civil Rights Restored Through Executive Pardon

Despite the state Constitutional ban on voting rights for persons convicted of a felony,
persons convicted of a felony may again obtain the right to vote. Section 145 of the Constitution
allows a convicted felon who has completed his or her sentence to apply for an executive pardon
in order to have his/her civil rights restored. For many years, the process to apply for an
executive pardon was considered an unwieldly and cumbersome process. Reacting to such
concerns, in 2001 the state Legislature passed legislation intended to expedite the process as well
as increase the number of persons having their voting rights restored. The new legislation
required the state Department of Corrections to “implement a simplified process for the
restoration of civil rights for eligible felony offenders.” *°

The legislation had an immediate impact, and in the two years following its passage the
number of persons who had their civil rights restored sharply increased to more than 1,000 in
each of the next two years. In 2003, under new policies instituted by former Governor Ernie
Fletcher, additional requirements were established for ex-felons for having their civil rights
restored. The new procedures required all applicants, as part of the application, to submit: (1) a
written statement, (2) three character references, and (3) a processing fee.” In addition, the new
procedures required that the application be presented to prosecutors, both in the jurisdiction
where the applicant lives and where the felony was committed, for an opinion on whether voting
rights should be restored.*®

After implementation of the new policies the number of former felons regaining the
right to vote fell to just over 250 per year, and the average approval rate for requests for
clemency plummeted from 99 to 28 percent.’® (See Table 3.) In March of 2008, Governor
Steve Beshear issued an executive order that removed some of the previously instituted
requirements in the application process. Under the new revised executive order, convicted
felons who have fulfilled the requirements of their sentences no longer have to pay a fee,
write an essay, or secure three character recommendations in order to receive an executive
pardon. In addition, the new executive pardon process requires notification to prosecutors
only in the jurisdiction where the felony was committed. Upon issuance, the
administration's general counsel began applying the new process to a backlog of more than
1,500 applications left over from the previous administration, as well as to newly
submitted applications.”

3° KY. REV. STAT. ANN. § 196.045 (1)(2009).

°7 KY, DEPT. OF CORR., POLICIES AND PROCEDURES § 27-26-01.

38 League of Women Voters Report.

* Press Release, Governor Steve Beshear, “Governor Beshear Helps Restore Rights to Kentuckians,” March 4,
2008.

* Ibid.

15
Table 3. Number of Applicants for Executive Pardon, Number of Persons with Civil Rights Restored,
Percentage of Successful Applicants 1999-2008

Number of Number of
Applicants for Persons with Percentage of

Executive Civil Rights Applicants
Year __ Pardon Restored Successful
1999) unavailable 699 unknown
2000) unavailable 572 unknown
2001) unavailable 958 unknown
2002) unavailable 1,278 unknown
2003) 1,202 1,193 99.2
2004) 1,108 316 28.5
2005) 640 253 39.5
2006 T7 274 38.2
2007, 617 255 413

Source: Kentucky Department of Corrections and Secretary of State.

In announcing the changes to executive pardon policy, Governor Beshear stated,
“This is not about being tough on crime. It is about treating people fairly and welcoming
back people trying to put their lives together again and become good citizens.” Secretary
of State, Trey Grayson added, “The ability to vote is a primary right and privilege afforded
to Kentuckians. Finding an efficient way to restore voting rights to individuals who
successfully pay their debt to society offers them a positive opportunity to fully
participate. Today's actions balance our responsibility to seek restitution for our
communities and families with our moral obligation to forgive.”*!

Estimated 185,000 Persons Are

Disenfranchised in Kentucky

It is estimated that about 185,000 persons are barred from voting in Kentucky due to a
prior felony conviction.” That translates into 1 of every 17 voting-age persons, or 6 percent of
the state’s adult population, that are ineligible to vote. Moreover, more than 90 percent of the
disenfranchised population is not in prison, but living in the community; and 70 percent of these
persons have completed all the terms of their sentence.*®

In addition to affecting a large segment of the voting population, the disenfranchisement
of former felons in the state has a disproportionate impact on African Americans. While blacks
are only about 7 percent of the state’s population, more than 30 percent of Kentucky’s total
prison population is African American. Kentucky’s disproportionately high rate of incarceration
of African Americans in turn results in a high rate of disenfranchisement, as presently 1 of 4
African American adults in the state is ineligible to vote.**

41
Ibid.
2M. Manza and C. Uggen, “Locked Out: Felon Disenfranchisement and American Democracy,” New York:
Oxford University Press (2006), Table A 3.3.
Brn:
Ibid.
“Ibid.

16
Table 4. Kentucky Felony Inmate Population by Class in 2008

Percentage of Current
Felony Offense Prison Population
Capital Offense 4%
Class A 3%
Class B 17%
Class C 31%
Class D 41%

Source: Kentucky Criminal Justice Council

Kentucky has three types of crimes: felonies, misdemeanors, and violations. The voting
prohibition for a criminal offense only applies to felonies. Felonies are criminal offenses with
penalties greater than one year in prison, and in Kentucky are broken down into four classes, A,
B, C, or D.* Felonies include violent crimes, such as murder, malicious wounding, armed
robbery, and rape and capital offenses as well as crimes for which the death penalty may be .
imposed. Felonies also include other, less violent crimes, such as drug possession and property
crimes such as burglary, larceny, and fraud. The vast majority of felonies and felony convictions
in Kentucky are not for violent crimes.

Misdemeanors are crimes with a maximum sentence of no more than one year in Jail.
Misdemeanors are divided into two classes: A and B. Class A misdemeanors carry a sentence of
90 days to 1 year, while Class B misdemeanors provide a sentence no greater than 90 days. Class
A misdemeanors are the most prevalent and the most serious, and include such crimes as
possession of marijuana, shop lifting, assault and battery, and misdemeanor bad check writing.
Also, some serious traffic offenses, for example driving under the influence or driving on a
suspended license, can also rise to the level of a Class A misdemeanor. Violations are the least
serious of the three types of crimes. Persons charged with violations are usually cited for minor
traffic offenses, failure to follow city or county ordinances, and alcohol intoxication in a public
place.

It should be noted that not all persons convicted of a felony are incarcerated. On average,
approximately two-thirds of all persons convicted of felony crimes are sentenced to a period of
confinement; the other third are sentenced to probation with no jail or prison time. Apart from
incarceration, persons convicted of felony crimes may also receive a variety of other
punishments as part of their sentences. Approximately one quarter of all persons convicted of a
felony are required to pay a punitive fine; another 15 percent are required to pay a restitution
fine, and about 5 percent are required to perform some sort of community service.

The vast majority of inmates incarcerated in Kentucky prisons for a felony offense,
almost 3 out of every 4 prison inmates, were convicted of Class C or Class D felonies. These
individuals constitute 31 and 41 percent respectively of the prison inmate population. Class B
felons are 17 percent of the state’s inmate population and Class A felons are 3 percent, while
persons convicted of capital offenses are 4 percent. (See Table 4.)

48 See KY. REV. STAT. ANN. § 532.020 (2009) for a designation of offenses.

17
House Bill 70 Proposes Vote To Amend
Constitution Regarding Ex-Felon Voting Rights
Since 2001 and the passage of KRS 196.035, there has been no new legislation directed
at the executive pardon process. However, in recent sessions of the General Assembly
legislation has been proposed to submit to the voters an amendment to Section 145 of the
Constitution that would allow for certain ex-felons to vote upon completion of their sentence. As
proposed, House Bill 70 would automatically restore the voting rights of ex-felons upon
completion of sentence, except for persons convicted of intentional homicide, sexual crimes
against minors, or manslaughter in the first degree.“
Proposed:
Section 1: Section 145 of the Constitution of Kentucky be amended to read as follows
(changes underlined):
Every citizen of the United States of the age of eighteen years who has resided
in the state one year, and in the county six months, and the precinct in which he offers to
vote sixty days next preceding the election, shall be a voter in said precinct and not
elsewhere but the following persons are excepted and shall not have the right to vote.
1. Persons convicted in any court of competent jurisdiction of treason, or any

felony which includes as an element of the offense the intentional killing of a human

being not done under the influence of extreme emotional disturbance for which there
exists_a reasonable explanation or excuse, sexual contact with a minor, sexual

intercourse, or deviate sexual intercourse, or bribery in an election, or of such high
misdemeanor as the General Assembly may declare shall operate as an exclusion from
the right of suffrage, but persons hereby excluded may be restored to their civil rights by
executive pardon. Persons convicted in any court of competent jurisdiction of any other
felony shall operate as an exclusion from the right of suffrage until expiration of
probation or final discharge from parole or maximum expiration of sentence, but
persons hereby excluded may be restored to their civil rights earlier by executive

pardon.
2. Persons who, at the time of the election, are in confinement under the

judgment of a court for some penal offense.

3. Idiots and insane persons.
Section 1. This amendment shall be submitted to the voters of the Commonwealth for
their ratification or rejection at the time and in the manner provided for under Sections
256 and 257 of the Constitution and under KRS 118.415.

In 2008, the legislation overwhelming passed in the House by a vote of 80 yes, 14 no, 0
abstentions, and 6 not voting. It was referred to the Senate, where it was not given a hearing. In
2009, the legislation was again introduced, and again passed by a wide margin in the House: 83
yes, 14 no, 0 abstentions, and 3 not voting. In the Senate, the bill was referred to the State and
Local Government Committee.

46 H.R. 70, Reg. Sess. (Ky. 2008).

18
General Support in State for Restoration of
Voting Rights for Ex-Felons

A poll conducted by the University of Kentucky Survey Research Center in 2006
indicates that a majority of Kentuckians favor a restoration of voting rights for ex-felons. The
survey of 901 adult citizens asked respondents if they supported the restoration of the right to

vote for convicted felons who have completed their sentences, including probation and parole.

Among the respondents, 56 percent favored restoring the right to vote for ex-felons, while 40
percent were opposed and 4 percent were undecided.*”
In Kentucky, the American Civil Liberties Union (ACLU) and the League of Women
Voters have made support for ex-felon rights a priority issue. Michael Aldridge, executive
director of the ACLU Kentucky, told the Committee:
Voting is a fundamental rights and a civic duty. As the U.S. Supreme Court stated
in its landmark 1964 decision Reynolds v. Sims, ‘the right to vote freely for the
candidates of one’s choice is of the essence of a democratic society, and any
restrictions on the right strike at the heart of representative government. ...Felony
disfranchisement runs counter to the goal of public safety. Restricting voting
rights does not prevent crime, provide compensation to victims, or help
people released from prison re-integrate into their communities. In contrast,
voter participation actually increases public safety: research has found that
people with criminal records who vote are half as likely to be re-arrested as
their non-voting counterparts.

Voting also demonstrates an individual's commitment to the institutions of
American democracy, and people who have completed their sentences should
be encouraged to participate in the life and concerns of their communities by,
among other things, exercising their right to vote. ... The swell of applications,
particularly in the run-up to the 2008 presidential election, indicates that there is
significant interest among disfranchised individuals in civic participation. This
phenomenon is borne out by research. In a 2006 study of disfranchised
individuals in Kentucky, more than half of respondents had voted prior to their
convictions, and more than two thirds of those who had not previously voted
expressed interest in voting. Despite this interest, hardly any of the respondents
had a correct understanding of the rights restoration application process. People
with past criminal records should be encouraged to rejoin their communities as
full and productive citizens. Reforming Kentucky's disfranchisement law to
simplify re-enfranchisement would do just that.“

Teena Halbig, president of the League of Women Voters of Kentucky, expressed a
similar unqualified support for full restoration of voting rights for ex-felons. Halbig told the
Committee, that “not only does the League of Women Voters of Kentucky hold that former
felons should have voting rights, but the national League of Women Voters and all of the 850

a University of Kentucky Survey Research Center, “The Summer 2006 Kentucky Survey.” The survey had a margin

of error of + 3 percentage points.

48 Michael Aldridge, letter to the Kentucky Advisory Committee to the U.S. Commission on Civil Rights, Nov. 17,

2008, Southern Regional Office files.

19
local affiliates came to that consensus position four years ago and have as an official position of
the organization ‘to restore voting rights to all ex-felons.””*

In addition, Carl Wedekind, executive director of the American Probation & Parole
Association headquartered in Lexington, Kentucky, recently affirmed the importance of
restoring the right to vote to ex-felons.

As the executive director of the national association that represents the probation and

parole agents who supervise more than 4 million people across the country, I

understand the importance of connecting people released from prison with positive

institutions in the community, including employment, education, housing, and also
voting. There is absolutely no credible evidence showing that continuing to
disenfranchise people after they have returned to the community serves any legitimate

law enforcement purpose. To the contrary, when people feel they have a stake in their

community they are less likely to engage in antisocial behavior. We would all be better

served if people living in the community have both the rights and obligations expected of

all citizens?”

Some public persons, however, have reservations about an automatic restoration of
voting rights for ex-felons. For example, John McCarthy, assistant to former Governor Emie
Fletcher expressed support for ex-felons having the right to vote, but was hesitant about allowing
voting rights restoration to be automatic although he did believe the process needed to be de-
politicized. McCarthy told the Committee,

On the issue of voting rights for ex-felons, I think generally that if a person is going to be
a contributing citizen, and be a part of society, and work and pay taxes then the right
thing to do is give that person the right to vote. So I am in favor generally of allowing
ex-felons the right to vote. But that said, I do not think the state Constitution needs to be
amended, nor do I believe that the restoration of voting rights for ex-offenders should be
automatic. Voting is both a privilege and a right that is given to a citizen, and in a society
one must follow the rules or there are consequences.

It is my position that a person who has been convicted of committing a felony should
have to go through some application process to regain his or her rights. I also understand
that the restoration process has recently changed and that three letters of recommendation
are no longer required. I think that is a mistake, and that the requirement of letters of
recommendation should be a part of the application process, Ex-felons are persons who
made bad choices, and they should have to demonstrate to the general society that there
are others in the community willing to stand and vouch for them as they make their return
to society before their rights are fully restored. After doing something that is wrong, one
has to earn the people’s trust, and letters of recommendation are a way of doing this.

I also believe that the process for executive clemency should also be as un-political as
possible. Presently, the executive clemency process in Kentucky is governed by only
executive order. When I worked for Governor Fletcher, I encouraged him to put together
a 3-person panel of former judges to make recommendations to the Governor about
granting executive clemency. That, I thought, would take the politics out of the process.
The Governor at the time was reluctant to implement that proposal out of distaste for
expanding the bureaucracy, but some other process might be useful. Presently, there is

* Teena Halbig, interview by Simajah Jackson, Southern Regional Office, U.S. Commission on Civil Rights, Feb.
25, 2009, Southern Regional Office files.
Carl Wedekind, “Restoring felons’ right to vote sensible, fair,” Lexington Herald-Leader, Mar. 23, 2008.

20
neither a statute nor a regulation that must be followed, and I think it would make for a
better system if there was at least a regulation to be followed.”

In support of voting rights for ex-felons, solicited comments by the Committee from the
Kentucky Council of Churches, the Catholic Conference of Kentucky, and the African Methodist
Episcopal Church were united in their support for allowing ex-felons to vote. Nancy Jo Kemper,
executive director of the Kentucky Council of Churches, told the Committee that “ex-felons
should have their voting rights restored because it helps restore people. It is a rehabilitation
process. Ex-felons have paid their debt to society, and they—like any other person—deserve this
right as any other member of society.”>?

Rev. Troy Thomas, pastor of the St. Paul African Methodist Episcopal Church, said that
he believed that “if ex-felons have completed their time of sentence then their voting rights
should be restored.” He also added that he thought the current executive pardoning procedure
was biased as it had a mostly negative effect on African Americans.

Rev. Patrick Delahanty, associate director, Catholic Conference of Kentucky, expressed a
similar view citing the catechism of the Catholic Church. “The Catechism of the Catholic Church
teaches that voting is a moral obligation, and the United States Catholic Bishops in a policy
statement regarding criminal justice have called for former felons to have the right to vote.
Responding to the guidance of the bishops, the Catholic Conference of Kentucky has
consistently advocated for changing Kentucky’s antiquated Constitution so the right to vote is
automatically restored when the term of the court sentence are completed. The current executive
pardoning procedure is open to arbitrary decision-making and should be removed.**

During the comment period of this study, members of the public also provided comments
to the Committee regarding ex-felon voting rights. All were in support of ex-felons being
provided the right to vote. The comment of Jerry Newmorning was typical of many comments
received by the Committee. “My younger brother passed away a few years ago. Mike, that was
his name, was a former felon. After he got out of jail he did his best to stay out of trouble. But
the one thing that ate at him was that society would not really forgive him and restore his voting
tights. I am not saying that it was this along thing that pushed him back to drugs. But is was one
the things that kept him feeling like an outsider.”*° Mike Barry, from People Advocating
Recovery, was more direct in his support for ex-felon voting rights. “Ex-felons should have the
tight to vote because they have paid their debt to society. They have been reintegrated into
society and are paying taxes as other citizens, so they should therefore have the same rights as
other citizens.”**

* John McCarthy, interview by Peter Minarik, Apr. 10, 2009, Southern Regional Office, U.S. Commission on Civil
Rights, Nov. 11, 2008, Southern Regional Office files.

2 Nancy Jo Kemper, interview by Simajah Jackson, Southern Regional Office, U.S. Commission on Civil Rights,
Nov. 11, 2008, Southern Regional Office files.

3 Troy I. Thomas, interview by Simajah Jackson, Souther Regional Office, U.S. Commission on Civil Rights, Feb.
2, 2009, Southern Regional Office files.

* Patrick Delahanty, interview by Simajah Jackdon, Feb. 25, 2009, Southern Regional Office, U.S. Commission on
Civil Rights, Nov. 11, 2008, Southern Regional Office files.

5 Jerry Newmorning, letter to the Kentucky Advisory Committee to the U.S. Commission on Civil Rights, Nov. 17,
2008, Southern Regional Office files.

56 Mike Barry, letter to the Kentucky Advisory Committee to the U.S. Commission on Civil Rights, Apr. 1, 2009,
Southern Regional Office files.

21
Findings
1. The most fundamental civil right of a citizen is the right to vote.

2. Kentucky is one of nine states that has a lifetime voting ban for persons convicted of a felony.
The state’s restriction on ex-felon voting rights is established in section 145 of the state
Constitution, adopted in 1891. The permanent voting ban also applies to treason and bribery in
an election.

3. The Kentucky Constitution allows for ex-felons to have their voting rights restored through
executive pardon granted by the Governor. The granting of executive pardon, however, is not
subject to any established statute or regulation and varies in its application dependent upon the
Governor.

4. In the ensuing decades after the Civil War, ex-felon statutes were adopted in a number of
states for the expressed purpose of limiting the right to vote of African Americans. In contrast to
those actions, the adoption of the ex-felon voting statute by Kentucky during that period was
done without a motive of racial animus and primarily out of concern to ensure the integrity of the
electoral process.

5. Asa result of the Constitutional ex-felon voting prohibition, it is estimated that approximately
185,000 persons in Kentucky are currently disenfranchised, and males and minorities are
disproportionately affected.

6. Legislation has been introduced into the General Assembly that proposes the electorate vote
to amend the state’s Constitution to restore voting rights to most ex-felons who have completed
all terms and conditions of their sentences.

7. Other states with Constitutional bans on ex-felon voting rights have undertaken efforts to
restore voting rights to non-violent offenders. Similar to Kentucky, Florida has a Constitutional
ban on ex-felons voting, and in 2007 the Governor of Florida with the concurrence of a majority
of the Cabinet issued revised rules for executive pardon that automatically restore civil rights and
voting rights to most ex-felons. Under the new rules, upon completion of their sentences, ex-
offenders are reviewed by the state’s Parole Commission. For non-violent offenders who have
completed all terms of their sentence, a pardon is automatically granted that restores their civil
rights without the need for a petition or hearing. Offenders determined to have committed more
serious crimes must still undergo a formal petition and hearing process to have their rights
testored.

22
Committee Recommendation

It is the opinion of the Kentucky Advisory Committee to the U.S. Commission on Civil
Rights that ex-felons who have completed all terms of their sentence and made full restitution
should be entitled to having their right to vote restored.

Presently the executive clemency process in Kentucky is governed only by executive
order, and there is neither statute nor regulation that must be followed by the Governor in the
granting of clemency. To ensure that the right to vote—one of the most fundamental civil right
of a citizen—is protected, that should be corrected.

Under the previous administration, a proposal was drafted—though not enacted—to de-
politicize the process by the appointment of a 3-person panel of former judges to review
clemency petitions and make recommendations to the Governor. Other proposals have been
made to de-politicize the process.

Similar to Kentucky, Florida has a Constitutional ban on ex-felons voting. That state has
revised its procedures for clemency so that beginning in 2007 non-violent offenders who have
completed all terms of their sentence are automatically granted a pardon that restores their civil
rights without the need for a petition or hearing.

The Committee does not recommend any specific procedure to de-politicize the process.
The Committee does recommend, however, that—similar to Florida—the current process be
regulated and standardized both to ensure the process is consistent from one administration to
another as well as work to allow for the largest number of ex-felons to again have the right to
vote and be restored to full citizenship.

To that end, the Kentucky Advisory Committee to the U.S. Commission on Civil Rights
calls upon the Governor to initiate a review of the executive pardon process, and to work with
the Legislature as necessary to put in place by statute, rule, and/or regulation an established
process to be followed that will be fair, just, expeditious, and non-political in granting ex-felons
in the State of Kentucky the right to vote.

23
Appendix 1 -- Official Report of the Proceedings and Debates in the Convention Assembled
at Frankfort, on the eight day of September 1890, to Adopt, Amend, or Change the

Constitution of the State of Kentucky.
Suffrage and Elections
Saturday, December 6, 1890

The Committee reported and recommended to the Committee of the Whole the following:

Every male citizen of the United States of the age of twenty-one, who has resided in the State one
year, and in the county six months, and the precinct in which he offers to vote sixty days, next preceding
the election, shall be a voter in said precinct and not elsewhere; but the following persons are excepted

and shall not have the right to vote:

Subsection 1. Persons who may be convicted in any Court of competent jurisdiction of treason or
felony, or of such high misdemeanors as the General Assembly may declare, shall operate as an exclusion

from the right of suffrage.

Subsection 2. Persons who, at the time of the election, are in confinement under the judgment of a

Court for some penal offense.
Subsection 3. Idiots and insane persons.

Committee of the Whole

The CHAIRMAN. The Clerk will report the
matter under consideration.

The CLERK. When the Committee arose the
following amendment was being considered, being
that proposed by the Delegate from Hopkins:
“Amend section 1 of the report of the Committee by
inserting in line 8, after the word “felon,” these
words, “bribing or receiving a bribe in the matter of
the elective franchise.”

Mr. McDERMOTT. As I am a member of the
Committee and as I have no purpose, to make
elections as pure as they can be made, I feel called
upon to say that, in my judgment, though the
gentleman has the very best motive, he is in danger of
destroying the very reform he seeks to further. I say
this with reluctance, because I have the highest
respect for him, and for the motives that are
prompting him; but this is a case of a man hurting his
friends more than his enemies. If any one wanted to
encourage the buying and selling of votes, he would
like this sort of amendment to be put in the report.
The statute now in place is complete, and in spite of
this, bribery goes unpunished. The law is severe
enough, but it is not enforced.; and it is not enforced
because the Legislature has sought to punish both
persons to the corrupt bargain, and has never been
able to get testimony against either; and now you are
not giving the Legislature any chance for trying
experiments to correct the evil we deplore.

Before you tie up the Legislature completely,
and hand us over to persons who thrive by
corruption, you should be sure of your ground. It
would be a pity to see this report hampered by
language that cannot be understood by this House in
all its bearings. I do hope that you will trust the

Legislature somewhat in this matter, when you find
on the statute book evidence of the fact that the
Legislature has given you laws enough, but you have
not had evidence or public spirit enough to execute
them.

Mr. STRAUS. In 1886 the Legislature passed a
statute substantially embodying this section, thereby
excusing one of the parties to the transaction from the
penalties prescribed by law in consideration of his
testifying against the other party. Since that time
there have been several convictions for bribery,
whereas, before that time there were none.

Mr. GOEBEL. How would the insertion of the
words hamper the Legislature?

Mr. STRAUS. I do not know that the Legislature
could exempt them from the penalties.

Mr. GOEBEL. The language of the section, as it
now stands, is not that those who are guilty of
treason or felony shall be excluded from the right of
suffrage, but those who are convicted. Those words
prevent the Legislature from providing that where
one party testifies against the other he shall not be
convicted.

Mr. STRAUS. There is a great deal of doubt
about that. That may be the gentleman’s construction
of those words.

Mr. GOEBEL. It leaves it to the discretion of the
Legislature to say who shall be convicted and who
not.

Mr. McDERMOTT. Do you not know that you
must deal with witnesses, and every witness, before
he comes forward give testimony, must be satisfied
that he is safe? Otherwise, do you not know that you
not get them to testify under any circumstances?

Mr. GOEBEL. That is not the question. The
provision of the Constitution says that persons who

24
are convicted of a specific crime shall suffer a
particular penalty. How does that prevent the
Legislature from saying this or that person, if he
gives testimony, shall not be convicted?

Mr, McDERMOTT. Then you agree with the
Delegate from Hopkins in part. The Delegate from
Hopkins is trying to catch both, and you are giving,
as an argument is support of his amendment, that the
Legislature should discharge one.

Mr. GOEBEL. He is giving the Legislature
power to provide that both shall be convicted, or
either let off.

Mr. McDERMOTT. He says you shall punish
both the giver and the receiver. You are differing
from him motive, but agreeing in the language. The
Legislature could not fairly disregard the Constitution
which would seem to demand the punishment of the
briber and the bribed.

Mr. BOURLAND. It is my purpose to detain the
Committee but a few moments. The member of the
Committee from Louisville seems to think that the
reason we cannot convict a man for a violation of the
election laws is from the fact that we have not that
healthy public sentiment behind us that will enable us
to reach the parties accused. It is my opinion that the
action of the members of this Convention, in this
matter, as representatives of the people of the State,
will have a very great influence in molding public
sentiment, and if we, as the representatives of the
people, put the seal of our condemnation upon this
pernicious practice, we will, to a very great extent,
build up a healthy public sentiment in the minds of
the people that will cause them to rise up in their
might and declare that the pernicious practice of
bribery at elections must and shall be stopped.

The distinguished and eloquent Delegate from
the city of Lexington designated the effort that we are
making here in this Convention to make the crime of
bribery odious in the State of Kentucky as a spasm of
virtue. I do not believe it is a mere spasm of virtue. I
believe it is the reflection of a healthy public
sentiment that is being built up in this State in
advocacy of a pure ballot; and I believe the matter is
of such vital importance that the members of the
Convention cannot afford to put themselves on record
against a measure calculated to purify the ballot. If it
is necessary that the present law of the State in
reference to bribery be incorporated into my
amendment, in order to make it effective.

I am ready to accept that law as an amendment.
If it is a fact that my amendment will deprive the
Legislature of the power to enact laws of evidence
necessary to establish the guilt or innocence of the
parties accused, then I stand ready to accept an
amendment from any gentleman which will
accomplish the end so much desired, and let it take

the place of my amendment. I am desperately in
earnest about this matter; and I feel that the health
and perpetuity of our free institutions in this State and
in the nation depend, to a very great extent, upon the
purity of the ballot in the State and in the Nation. I
believe that we, as the representatives of the people
of the State of Kentucky, owe it to the people we
represent, and we owe it to ourselves, to put
ourselves on record as against the pernicious practice
of indiscriminate bribery at national, State and county
elections.

My purpose is to purify the ballot; and, if my
language can be made stronger; if any gentlemen on
this floor think the guilty parties can escape, and they
can put into my amendment any thing that will
perfect it and make it stronger, I stand ready to accept
it. My motive is to purify the elective franchise, and
to protect the people against the great wrongs being
perpetrated by bribe-givers and bribe-takers in our
State. I hope some gentleman will draw up an
amendment embodying the principles set forth in the
statute in reference to compelling either party to
testify in prosecutions for a violation of these
provisions; and, as I said before, I am ready to accept
it as an amendment.

Mr. RODES. | regard this measure as one
indicating the spirit of the Convention and of the age.
In all movements of this kind, whether in making
Constitutions or otherwise, there are certain
significant signs appertaining to and attached to every
body of this kind, which, in some way, indicate the
age in which we live. Now, if there is any danger in
the world to our institutions, it must grow out of
impure elections. If the ballot-box is once thoroughly
corrupted, it leads, of course, to misunderstanding.
The people will not submit to corruption in their
elections, if they can prevent it. Misunderstandings
lead to collisions, collisions lead to bloodshed,
bloodshed produces conflagrations, conflagrations
produce earthquakes. You might say, if there is any
thing in the world, out of which danger may arise to
our institutions, it will come from this.

I deny, emphatically, that there is any reason or
plausibility in the idea, if we put bribery and bribing
in this Constitution, that there is any reason why we
cannot enforce that law. The State is not only the
parent, but the authoritative parent. It has the right to
punish, and if we exercise the authority of a parent,
and act the part of a tutor in administering discipline,
and set forth a good moral basis for our action, it will,
in and of itself, have a strong tendency to mould
public sentiment. Public sentiment is a great
controller of our age, and if we have only a modicum
of public sentiment-pure, incorruptible and undefiled,
it will some time manifest itself. Corruption grows. It
is a germ. The germ theory in this age is the one now

25
pervading medical circles. Let this germ enter into
social system, and it will grow and spread. Louis
XIV, at one time, announced this great proposition,
that he gave alms by spending liberally. Say, the
great political economist, said that that principle was
tuin reduced to a proverb, That shows that that age
was marked by that characteristic. Out of that grew
the immense corruption which at last culminated in
that furor of eruption nearly one hundred years
thereafter.

Do not let us be afraid to announce the proper
principle. Let us lay down the law correctly; let us
understand what we are doing. Is bribery corruption?
Undoubtedly it is. Does it enter us a deadly poison
into our system? It does. Does it injure our system?
We all acknowledge it does. Then will you
discriminate, and say one part is corrupt, and one part
is incorruptible or pardonable? Will you allow one to
go free, while you punish the other? Do not let your
vote go down that way in this Convention. Let it go
down broadly and emphatically. Public sentiment is
rising to-day. The time will come when it does in the
State of Kentucky as a tutor. The fundamental law is
the guide of political sentiment; it is the standard by
which you measure values, just like gold and silver.
Make your yard-stick correct, and let your weights
and measures be correct. Do not let them be false, if
they are correct. Shape them correctly, and every
thing has to be tested and tried by them; and you can
leave it to Providence and the ripening of that high
moral sentiment in the minds of men to attend to that;
but if you fail, and, admitting all is corrupt, say that
one part should be punished and the other part is
licensed, you strike down a great deal of the
confidence of the people.

We are now at a period in history when we
cannot afford to blink at crime. We must protect the
people. We cannot modify our feelings and
convictions on these subjects. No man ever
accomplished much in this age unless he had
convictions, and when you have convictions act upon
them. I admit the doctrine of expediency. I admit we
should not always attempt to carry out the full letter
of what we can carry out in part. We should not stick
in the bark either, when we attempt to get rid of an
evil of this kind, but we can, at all events, indicate, by
our action here, what our moral convictions are upon
this subject; and if we lay it down unmistakably in
our Constitution, or our Conventional proceedings,
that this is an evil, that it is dangerous, that it is
corrupting, that it is disease concealed within the
body-politic, let us make it known and assert it one
way or the other.

No man ever had in his physical system a germ
that lie did not have to throw it off, and any disease in
the body-politic will kill it unless it is thrown off.

Now, we must try to throw it off, and how shall we
do it? We have various methods and systems
suggested to get rid of these germs of disease. The
corruption has to come out. When the plague
commences in your system it is there, and it will,
eventually, like a corroding cancer, cat you up unless
you can extract it. You must exercise a surgeon's
power, or some other power incident to the moral
medical profession, to get rid of it. This is an evil
admitted by all, recognized by all, denounced by all,
and now, shall we close one eye to one offense and
open the other eye as to another, and say that our
system, although injuring us, although corruption is
glaring us in the face, yet, for some reason or other,
we choose to say one part of it shall be passed over,
connived at, while the other is absolutely denounced.
I think, as I said before, we had better open both eye.
T look the evil in the face, and march up to it and trust
hereafter the consequences to providential signs and
tokens as to what we shall do.

Mr. STRAUS. I cannot agree with the argument
of the gentleman from Warren. While I agree with
him in the germ theory, the question is how to get at
this germ. Now, it is laid down by all tutors that we
must kill the tissue in which it lives in order to
destroy it. We all agree that bribery in elections is a
very great offense against the body-politic. We all
agree that it is a menace to our institutions.

Mr. ASKEW. Will the gentleman yield for an
amendment?

Mr. L. T. MOORE. Read mine too.

The amendment offered by the Delegate from
Boyd was read as follows:

Amend by adding: “But this shall not prevent the
Legislature from exempting one or the other of the
parties from punishment, for the purpose of obtaining
evidence in such cases.”

Mr. BOURLAND. I am willing to accept that
amendment. The amendment offered by the Delegate
from Scott was read, and is as follows: As an
additional subsection to section 1:

“The Legislature shall pass laws for the
punishment of bribery in elections, and may punish
either the one who receives the bribe or the one who
participates in making file bribe-one or both, as may
be deemed most efficacious to suppress the evil ; and
the laws on the subject shall remain in force till the
General Assembly shall otherwise provide."

Mr. STRAUS. We are not here in my judgment,
to deal with the abstract proposition, as advocated by
the Delegate from Warren. Everybody agrees that
bribery in an election is wrong; everybody feels that
it is a deadly germ that has fastened itself on the
body-politic. Everybody agrees we should kill that
germ, in some way or other; we only differ as to the
method. We ought, therefore, to deal with this

26
question in a practical way. The Delegate says the
briber is just as bad as the man who takes the bribe.
In the abstract, that is true. But the question is, how
can we prevent bribery in elections? What is the
practical way? Mr. Buckle says, it is not the part of a
statesman to anticipate the future, but to deal with the
practical present, and that is the question before us.

The argument of the Delegate from Warren
would apply equally to a proposition to repeal the
sixth section of the statute, which is conceded by
everyone to be the most wholesome statute ever
passed in Kentucky. That section, which was passed
in 1886, excuses the briber and compels him to
testify, and yet, under the argument of the
distinguished Delegate from Warren, that section
should be repealed, because, as he says, one is as bad
as the other.

Now, the Delegate from Hopkins will not agree
with him. They are in direct conflict with each other.
He has accepted the amendment, by which it would
seem that he is in favor of the sixth section of the
statute, which excuses the briber in order that the
State may procure testimony so as to prevent this
great offense against the elective franchise. Having
accepted that amendment, he has conceded the whole
argument, because if you read the report of the
Committee further on we provide that the Legislature
shall pass all needful laws for the suppression of
bribery. Not only do we seek to provide that a man
shall be punished for that offense, but in section 7 of
the report we say:

“Every person shall be disqualified from holding
any office of trust or profit for the time for which they
shall have been elected, who shall be convicted of
having given, offered or promised any money, or
other thing of value, to procure his election. All
persons shall he excluded from office who have been,
or shall hereafter be, convicted of a felony, or such
high misdemeanor as may he prescribed by law. The
privilege of free suffrage shall be supported by laws
regulating elections, and prohibiting, under adequate
penalties, all undue influence from power, bribery,
tumult, or other improper practices.”

The only question we have to deal with is this:
Shall we go tie the hands of the Legislature as to
prevent them from dealing with the practical question
of securing testimony upon which convictions can be
had ? We may stand here for ages and indulge in
glittering generalities and denunciations of the crime
of bribery, but unless we provide some practical way
to reach this germ, we accomplish nothing. The
question before us is a question of method, not a
question of principle.

Everybody agrees with the distinguished
gentleman from Warren in the abstract, but, as a
practical proposition, it would repeal the very best

statute on the books against bribery, and I hope all
the amendments will be voted down. Some think the
bribe-giver is the worse man; others the bribe-taker.
However that may be, let us leave it to the
Legislature to enact laws that will insure the
prosecution and conviction of persons charged with
these great offenses against the elective franchise. 1
am not prepared to say which is the worse. In the
abstract, one may be as bad as the other; but, as a
practical proposition, no man can contend that the
bribe-giver is as bad as the bribe-taker, but we are
dealing with a practical question, and we ought not to
hamper the Legislature in ferreting out this great evil
and providing adequate remedy for it. Mr. JONSON.
1 am surprised at the arguments of the Delegate from
Bullitt. What would be the result of it?

Mr. GOEBEL. I would like to offer an
amendment, so that the gentleman can discuss this
while he is on the floor. Amend, by adding at the end
of subsection | the following:

“Persons giving testimony against others in
prosecutions for bribing or receiving a bribe, shall be
exempt from the penalty here denounced.”

Mr. JONSON. The idea that a man who would
deliberately go into the market and corrupt five
thousand, or a hundred thousand citizens, is less an
offender than the poor wretch who accepts the bribe,
is perfectly monstrous. That is the position gentlemen
occupy on this floor. They come boldly and announce
that proposition. Will he tell us that, when the arch-
fiend entered into Paradise and tempted our mother
with the apple, that he was less an offender than she?
Yet, that is the position they occupy. Away with it. It
is not the poor, insignificant, illiterate wretch who,
perhaps, for a morsel of bread, will sell his vote, that
is the danger to our community, but it is a man with
great wealth at his back, and power and influence,
that is the portentous danger looming up.

Go upon the streets of this city today, and what
do you find? You find intelligent gentlemen in the
capital city of the State so familiarized with vice that
it is bruited abroad that bribery is open-handedly
walking the streets today. I have heard it in the
hotels, I have heard it on the street, and have heard no
denial of it; and yet, we are told, that the testimony
on which to correct this vice and punish the criminal
is to be filched out of the consciences of these
debauched wretches themselves. I never heard of
such a proposition entering the mind of any
intelligent attorney on earth, that you have to resort to
the slums and cesspools of corruption to get
testimony to correct society.

Mr. WHITAKER. Today that suffrage is a
matter of merchandise—a matter of business. Now,
as that is the present state of affairs, do you not think
it would be proper to buy witnesses upon which to

27
punish other offenders? The buying of witnesses is
exempting them from the punishment of the same
crime that the other man commits.

Mr. JONSON. I have heard, all of my life, that
you must fight the devil with fire, but I have never
recognized the sentiment, and I could not advise the
great Commonwealth of Kentucky to go into
subormation of perjury. If, in the future, the
Commonwealth of Kentucky should engage in that
business, I would come to the conclusion that at that
time we bad lost our liberty.

Mr. MOORE. I would like to ask the gentleman
a question. Have you ever had any experience or
observation in the purchase of votes?

Mr. JONSON. I must say that I never have.

Mr. MOORE. Those who have know there are
but two parties to the transaction, one the purchaser
and the other the seller. Unless you make terms with
one of them, how can you secure the conviction of
the other?

Mr. JONSON. I am not familiar with bribe-
giving or taking; and I say, as an abstract fact-not
only as an abstract fact, but as my experience as a
lawyer-that whenever you come to deal with these
corrupt parties, and get one of them who has violated
the law to testify against the other, and put him upon
the witness stand, he will violate the law again, and
swear to protect himself and his associates. There are
few exceptions to that rule. If the proposition is true,
that no one under the sun, except those two, are
cognizant of the fact, and in condition to testify as to
it, you will never reach the evil by tempting either. I
had not intended to say any thing, having expressed
my views on this subject yesterday; but it is passing
strange to me, that gentlemen of great intelligence in
these matters, and especially those standing here and
telling us they have seen this thin?, are willing to
connive at it in some degree. It is a connivance. I
agree with the Delegate from Warren, that we should
open both our eyes and look the evils squarely in the
face like men that we say we are.

Mr. APPLEGATE. I do not suppose that it is the
province of the Convention to determine, this
morning, which is the guilty party, the one who
offers, or the one who takes the bribe. The question
the Convention is trying to solve, is how can we
purify our ballots? I do not believe that there is a
gentleman in this Convention who is not anxious to
know how to solve that problem. I take it for granted
that everyone here is willing to concede it is one of
the great evils of the day, and it needs no argument to
convince us that something should be done. A mind
which is so distorted as to believe that bribery is
right, is not worthy of an argument. Let it alone in its
darkness. As this clause of the Constitution is framed,
and as the amendments proposed to-day would leave

it as to the question of bribery, it would be as
sounding brass and tinkling cymbals if the
Legislature did not vitalize it and set it in operation.
Every person convicted of the offense has a certain
penalty imposed on him. Everyone knows you cannot
have a conviction until there is a common law or
statutory penalty for that offense. Until the
Legislature provides a penalty for bribery, there can
be no conviction for bribery.

Mr. BRONSON. I presume that the Delegate is
thoroughly familiar with the decision of the Court of
Appeals of Kentucky in the case of Commonwealth
vs. Jones, which is in effect this: That even if you
undertake, by amendment to this Constitution, to
make a self-acting law that it would be construed that
such law could not be enforced until after judgment
of conviction; so that if you do incorporate into the
Constitution the amendment offered by the
gentleman, “that whoever receives, or gives a bribe,
directly or indirectly, should be disqualified from
suffrage and office.” Under that decision, which is
approved by the highest Courts in the country, it will
not be operative until after trial, judgment and
conviction.

Mr. APPLEGATE. That is the point I was
proceeding to, and thank the gentleman for the
suggestion and for the reference to the decision. If the
Legislature is so debased that it would not reserve
upon the statute book the existing laws or provide
better ones for punishing bribers, then our
Constitutional provision is inoperative. If the
Legislature comes up to the standard of the morals of
the people whom we represent, it will preserve that
law or give us a better one, and we should trust it,
that it, from time to time, as experience teaches it,
will give us such laws as it thinks in its wisdom will
accomplish the result desired. Bribery in the elective
franchise affects only the people directly, and until
the people are prepared, and the Legislature is ready
to give us a law upon that question, there would be
no controversy about bribery. We have seen enough
of it, and the Legislature has already acted in that
direction, and given us a good law. There would be
no reason for such law, éxcept abuses in that line.

Now, the other classes of offenses, named in the
Constitution, which we say shall disqualify a man,
have an effect upon society in every respect. Treason
is so odious that we will convict a man for treason.
All felonies affect individuals directly. So we need
not entertain any apprehension about the Legislature
passing wholesome laws to punish the offenses of
felony, when a man is punished for an offense he has
committed, which prescribes that ho shall be
disqualified from voting; but there is no motive in
punishing a briber, except that bribery is
demoralizing to the body-politic,; and whenever a

28
Legislature, influenced by popular sentiment, as it
has been in the past, to punish it, it will devise and
pass the laws its wisdom will deem advisable.

We shall never succeed in elevating the ballot by
statutory law, but we should throw it about all the
protection that the Legislature can, and every means
should. be resorted to possible to prevent bribery and
corruption. It matters not to me whether you say the
giver or the taker is the greater offender. We want to
be in a position in which we can punish either, as the
Legislature may see fit. We know what the language
reported by the Committee means. It has been
carefully considered by them and compared with
existing statutes, and decisions of the Court of
Appeals construing those statutes, and we know the
Legislature has absolute power to do what they have
done. This line of decisions and this experience
began with the inability to punish gambling, which
the people in this State a good many years ago
attempted to do. But it was not until the Legislature
provided that one of the parties to the transaction
might be exempted, if he gave evidence against the
other, that they succeeded in punishing them. Do not
let us, by hastily considered amendments and by ill-
advised amendments, mar the provision of the
Constitution under which we propose to live.

If the Legislature would refuse to punish under
this provision of the Constitution, it would refuse to
enact a law giving vitality to it. 1 would support any
measure to suppress bribery; but are we not tying up
the Legislature? Are we not putting in language that
will be the subject of judicial construction. The report
(section 7) says the Legislature shall do these things.
And should we not better leave it that way than to tie
on to it this proposed amendment, and destroy the
vitality and force of it ? It is for this reason that I will
vote against the amendment-not that I am against the
spirit of it, for I am heartily in accord with that spirit;
but I believe the Legislature can and will accomplish
all that is practicable to be accomplished under this
provision; and it is a well-considered and worded
report, and do not let us destroy it. One suggestion is
made: that this crime may become so prevalent that
the election officers and supervisors may have to call
to their assistance men who are skilled in detecting
crime, known as detectives. They may have to
practically engage with the violators of law, in the
perpetration of these offenses, in order to expose it;
and we do not want to limit the Legislature so that
these men themselves would have to suffer the
penalty. I do trust that the Committee's report will
remain intact, for I believe it is most effectual.

Mr. BIRKHEAD. What amendment is it that
proposes to tie up the hands of the Legislature?

Mr. APPLEGATE. I mean all of them, They
have not been so carefully considered as this report

has been. They are all hastily drawn.

Mr. ASKEW. I have sent up to the Clerk's desk
to be read an amendment saying that the laws we
have now shall remain in force until the Legislature
enacts other laws.

Mr, APPLEGATE. Can they not repeal them?

Mr. ASKEW. No, sir; I say they shall remain in
force until they provide others.

Mr. APPLEGATE. But they can provide
ineffectual ones. That whole thing will depend on
whether we have a good Legislature or a corrupt
Legislature. All changes are dangerous. We do not
know how the Courts will construe them. Why not
stand where we are safe?

Mr. MACKOY. Does not the Constitution, in
distinct terms, say that the Legislature shall pass laws
with reference to this subject?

Mr. APPLEGATE. Yes; and so does this report.

Mr. MACKOY. No, sir.

Mr. APPLEGATE. Why, here it is.

“Every person shall be disqualified from holding
any office of trust or profit for the time for which they
shall have been elected, who shall be convicted of
having given, offered or promised any money, or
other thing of value, to procure his election, All
persons shall be excluded from office who have been,
or shall hereafter be, convicted of a felony, or such
high misdemeanor as may be prescribed by law. The
privilege of free suffrage shall be supported by laws
regulating elections, and prohibiting, under adequate
penalties, all undue influence from power, bribery,
tumult, or other improper practices.”

Mr. MACKOY. Does it refer in express terms to
this offense of bribery?

Mr. APPLEGATE. Yes, sir; it is the seventh
section I have just read. It seems to me, that when the
Committee have brought in such an excellent report,
and after it has considered it for several weeks, we
should be careful as to what we change.

Mr. GRAHAM. It scems to me that this
proposition has resolved itself into the germ theory. If
there is a germ in it, somebody has injected it into the
body-politic. And I think it was not in or among the
people. Now, the question is, who induced it? I say
the man who had the germ first did it. The man who
had the germ and innoculated it, he is the guilty
felon. We all agree as to that. Now, America when
formed was formed by men of purity, patriotism,
philanthropy and economy. We all agree that
Jefferson, Washington and their co-workers formed a
good government, and it was designed by them that it
should be perpetual in that form, uncontaminated.
But a healthy government did not satisfy a certain
class of men, and, in order that it might be changed
into a corrupt and venal government, they brought the
germ with them, and that that germ is money.

29
You may talk about whisky and dry goods and
other things, but the bottom of the whole evil is
money. If one man does a thing, and another man has
it done, who, I want to know, is the guilty man? You
drag out the poor fellow who receives the money, and
make an example of him, and say that he is rotten and
corrupt. I tell you, the corruption is higher up. Now,
if I wanted to inject small-pox virus into a man; I
have the germ in my pocket, and I say, I will give
you five hundred or a thousand dollars if you will let
me inject this into you, so that you can propagate the
disease and let the whole government have it. and I
can get rich.

Now, take the President here; he has these
germs, and he starts it floating among the people, and
innoculates them with it; but he does not go down
among the people himself. He hires a man standing
high, and he steps down to do the work. He says to
him, J want to innocu- late you; and that man goes
down and goes to the boss, and he proposes to
innoculate him. With what does he innoculate him?
Nothtng but that germ which was injected from the
highest circles. He starts that germ, and distributes it
among the voters. He got it from a high place .. Now,
you all see the drift of that.

Mr. APPLEGATE. Will you allow me to ask a
question? ,

Mr. GRAHAM. | am like brother Rodes; I would
rather tell you things than to answer your questions.
There is one class of men here who say you should
catch the serf, the poor fellow who permits himself to
be bought. This thing of buying votes is like the
small-pox virus, it is injected all along the line; and
here you are after the last poor fellow. You should
punish the fellow who is high up, and send him to the
Black Hole of Calcutta, or to the Siberian mines, and
make him work forever because of the outrage he
does. I have no doubt that some of the men in this
grand body, if I am properly informed, have done this
great wrong, and they are here today, unless they are
lied on, by the same means, injecting that virus into
the voter. I hope I have been wrongfully informed,
that they have not been guilty of this great wrong; but
if there are any of them here, I advise them to take an
indefinite leave of absence, and, for God’s sake,
never come back. I tell you, you have to go to the
high political circles to get at the infection. You talk
about punishment. I tell you, you should put the man
who injects the virus at hard labor, and under
hygienic treatment, so that be will live a long time to
suffer his just punishment. We want stringent laws
and penalties, that men will be frightened at crime in
high political circles. I tell you it is the money people
who are the source of all corruption. There is no
infection that can ever come into this great nation if
you will keep the influence of money out of it. I

challenge contradiction in that saying. As I said
yesterday, we are gathered here, and our combined
wisdom, knowledge, intelligence and patriotism,
should advise the best adequate means to catch the
man who propagates the infection into the body-
politic. This is true, and you cannot get behind it.
You have this infection descending from the highest
places, and you cannot stop it by dragging the poor
devil who commits the less offense to punishment.
You will have to go higher.

Mr. J. L. PHELPS. I offer an amendment.

The amendment was read, and is as follows:
“Amend the amendment offered by the Delegate from
Hopkins by striking there from these words: ‘or
receiving a bribe.’”

Mr. BULLITT. I dislike to have to differ with
my neighbor, the Delegate from Marshall, but I will
ask him if, in the practice of his profession, they do
not sometimes have to administer poison to get rid of
severer poison? That seems to me is just what we do
here.

Mr. GRAHAM. When you want to arrest any
thing, you have to use a remedy more powerful, or
you will not do it.

Mr. BULLITT. You administer poison to get rid
of the poison?

Mr. GRAHAM. One neutralized the other.

Mr, BULLITT. That is a good lesson to instruct
the Convention. Here is an evil we all admit. We are
all striving to get rid of the evil of bri in
elections. We are but human, and we have to deal
with human methods. It matters not what the
religious or scientific theories may be. We are
dealing with men, and we ought to take into
consideration human experience in our efforts to get
rid of it. We have tried by punishing both the buyer
and seller of votes. The experience of twenty years
shows that we have never secured a single solitary
conviction; yet no man will doubt that bribery has
gone on during the whole of that time. No
convictions were ever attained until since we adopted
the method of excusing one side. I do not care which
side you excuse, whether you excuse the buyer or
seller. I do know this, that, ordinarily, the buyer has a
higher degree

of credit before the juries as a witness than the
seller. You have to get the testimony either of the
buyer or the testimony of the seller.

If we succeed in convicting some one, either the
buyer or seller, we succeed in stopping the traffic. It
would be well for us to convict both, if we could.
Both ought to be convicted; but as we find it
impossible to convict, unless we excuse one or the
other, the only question for us to inquire is, which is
the best for society to excuse? Which will furnish us
the best witness? Will the seller be a better witness to

30
convict the buyer, or will the buyer be a better
witness to convict the seller? If a gentleman who
stands high in society were forced to testify that he
bought a colored, or any other man, I think the jury
would believe him, and would convict the seller. This
evil is upon us. How can we eradicate it ? It is to be
eradicated for the benefit of society in the shape of
punishment, not vengeance, because vengeance
belongs not to man, but to God alone.

And when we punish, we punish for the benefit
of society, and whoever we do punish, it is to
redound to the benefit of society; and if we believe it
does not redound to the benefit of society, we have
no right to inflict the punishment. Then it is simply a
practical question. How are we to meet it ? We are to
meet it by practical means. The only practical method
is to punish one of them, and let the other go
unpunished. As long as we say that they are both
punishable, .either can refuse to testify, and the
Courts are powerless to force them to testify, not only
under our State Constitution, but they are protected
by the Federal Constitution from testifying against
themselves. So that we are bound by those
restrictions, and we cannot get around them. Hence,
we are now to consider a practical method by which
to reach it.

The only practical method to reach it is to excuse
one or the other of the parties, because nobody
knows, and nobody can testify truthfully in relation to
it, except one or the other of the parties. As my friend
here says, it looks a little bit like the Commonwealth
is hiring witnesses. That may be. If the preservation
of society requires that treatment, we will have to
resort to it. I do not care whether it is buying a
witness, by excusing him from punishment because
he testifies; all Governments practice that system of
bribery for their own protection. We do excuse one
conspirator who testifies against another conspirator
for the protection of society. In the Ku-Klux law we
had to use it—it was the only remedy to reach the
disease, and after the system was adopted to allow
witnesses to go scot free, we worked out of the State
the Ku- Klux business, and it could not be reached
until that was done. So that these methods have to be
resorted to sometimes for the benefit and relief of
society. I think, if we have to pass any thing on the
subject, let us adopt the amendment offered by the
Delegate from Scott compelling the Legislature to
pass laws. I am reminded that this is done in section 7
of the report, compelling the Legislature to pass laws
that may seem to them most efficacious to eradicate
the evil.

Mr. GRAHAM. You will agree that political
bosses down on the street have money to buy votes.
The price of votes is two dollars. You have twenty
dollars and buy ten votes, five white and five black.

Which is the meaner, the negro who sells his vote or
the white man who buys?

Mr, BULLITT. I think the white man who buys;
but can we make as efficacious use of the negro man
to convict the white, as the white to convict the
negro? It matters not who we convict, so we convict
one or the other. If we convict one or the other, that
stops the evil. I am as anxious to break up the evil as
any man in the State, and I hope that some measure
will be adopted by the Convention that will eradicate
the evil; and hope nothing be done in this Convention
that will hamper the power of the Legislature to break
it up. But, on the contrary, we will make it the
coercive duty on the part of the Legislature to pass
laws for the purpose of breaking it up.

Mr. AUXIER. We all agree that this practice of
buying and selling votes exists. It is a condition, and
not a theory, that confronts us. We have to deal with
it practically, as with all other questions. I differ with
the Delegate from McLean, when he objects to going
into the slums for evidence to convict those guilty of
a violation of the law. If an offense is committed in
Mulberry street, in New York, you have to go into
Mulberry street to get the evidence; and we all know
that the Commonwealth's Attorney frequently, with
the consent of the Judge, dismisses a prosecution as
to one in order to procure testimony to convict the
other. That is the practical way of destroying it. If we
go among the sandbaggers, shop-lifters, bummers
and sluggers of a city, we have to select from that
character of men such witnesses as will testify
against the other.

Therefore, there is a practical way of getting
evidence, and, while we all admit this selling of the
birthright, as Esau did, one of the greatest of crimes
known to national existence, the selling of this
inalienable right of self- government by one party
and the buying of it by another, it is not necessary to
designate which of the two is the greatest criminal,
the buyer or the seller. The purchaser buys that which
belongs to another for a price, and the seller, for a
consideration given in money, sells his own
inalienable and sovereign right to govern himself and
help govern the State. Now, let us look at that for a
moment. The question is met by the report of the
Committee, as, I think, just as completely as need be,
because it provides that a person who may be
convicted in any Court of competent jurisdiction of
treason or felony, or such high misdemeanors as the
General Assembly may declare, shall operate us an
exclusion from the right of suffrage.

I suppose the Committee drew that clause,
knowing at the time the statute upon our books
against bribery. This question is not a new one.
Ample provision i» made upon our statute books for
the punishment of bribery, and I do not believe there

31
is a State in the Union that has better laws to suppress
this iniquitous practice than there is on the statute
books of Kentucky. Ample provision is made to
punish those that buy and those who sell this high
privilege and prerogative. It was said by one able
writer, that the criminal law is public sentiment, and
there never was a truer expression made by any law
writer. Public sentiment is not in the direction of
punishing people for this offense, and, although we
may write clause after clause on the statute books,
unless public sentiment is worked up to the
enforcement of the law, it becomes a dead letter. If
the amendment proposed by the Delegate from
Hopkins is to be adopted, in my judgment, it certainly
becomes necessary to adopt the amendment offered
by the Delegate from Boyd, or the one offered by the
Delegate from Newport, either one of which is good,
but it does seem to me that this clause is just right as
it is. If public sentiment was in accord with the
statute, there would be no corruption or bribery in
elections. It is not the fault of the organic law, or the
fault of the Legislature. The fault is that the public
sentiment is not up to it. Then, if the Legislature has
done its work so well, and has not been in fault, why
is it necessary to put any thing in the Constitution
which would obstruct the Legislature in enacting
these beneficial laws. The section, as it seems to me,
is amply sufficient, and if we adopt the amendment
of the Delegate from Hopkins, then the other
amendment would necessarily have to follow, and, I
think, it would be better to reject all the amendments
and take the Committee's report as it is. Parties in
pari delicto are frequently given immunity and
suffered to turn State's evidence in order to secure the
conviction of the guilty.

A vote being taken, the amendment of the
Delegate from Russell was rejected.

The amendment of the Delegate from Hopkins
was then read,

The CHAIRMAN. The motion would be in
order.

Mr. MACKOY. I cannot see how the insertion of
the words “bribing or receiving a bribe, in the matter
of the elective franchise,” will hamper the
Legislature. They simply provide, that when there is
a conviction for that matter, the person convicted
shall not thereafter exercise the elective franchise.

Mr. KENNEDY. Does this aid the Legislature to
any extent in passing laws?

Mr. MACKOY. I think it does.

Mr. KENNEDY. Will you tell me how?

Mr. MACKOY. It shows the Legislature what is
the sense of this Convention in regard to the matter.

Mr. McDERMOTT. I would ask you whether
subsection number | does not show what the sense of
this Convention is ?

Mr. MACKOY. Certainly; but section 1 does not
go as far as subsection 1 of section 1 will, if these
words are inserted. Section 1 provides only that the
Legislature shall pass Jaws in order that bribery may
be prevented, and the Legislature may not make
bribery a disqualification for the exercise of the
elective franchise.

A vote being taken, the amendment of the
Delegate from Covington was rejected.

A vote being taken, the amendment of the
Delegate from Hopkins was adopted.

The READING CLERK. The next amendment
in order is that proposed by the Delegate from
Owsley:

Amend by adding in line 10 of first section, after
the word “suffrage,” at the close of subsection 1,
these words: “But after five years from his release,
the General Assembly may restore the right of
suffrage to said person.”

A vote being taken, the amendment was rejected.

The READING CLERK. The next amendment is
that proposed by the Delegate from Nelson: After the
word “suffrage,” in the tenth line, add these words:
“Unless restored to their civil rights by Executive
pardon.”

Mr. MACKOY. I think it is proper that I should
call the attention of the Convention to a decision
upon that point. We should, in my opinion, adopt the
amendment of the Delegate from Nelson in order that
there may be no doubt as to the effect of an Executive
pardon. I know that in some cases the rule is stated
very broadly in the language read by a member of the
Committee from McCreary on Elections; but, at the
same time, there is a difference of opinion upon that
point, and the matter is too important to permit this
Convention to leave it in any doubt whatever.

It is important that a person who has once been
disqualified by conviction, if he has reformed—and
we have instances of the complete reformation of
persons who have suffered imprisonment in the
penitentiary—should not be cut off from exercising
the elective franchise, but should be left free to
indulge the same aspirations and ambitions as those
who have never been convicted. That the matter is in
doubt, is evident from a decision in 24th Illinois, in
the case of Foreman et al. vs. Baldwin; and I desire to
read a portion of the decision in order that the
Convention may see the view taken by that Court. A
witness had been offered in the case, and objection
was made to his testifying, upon the ground that he
was not a competent witness, having been convicted
of a crime; and the Court says:

‘Upon the remaining point, the rejection of Katz
as a witness, we are satisfied the Governor's pardon
did not restore his competency. It could not over-ride

32
that express provision of the statute which declares,
most emphatically, that each and every person
convicted of larceny shall be deemed infamous, and
shall forever thereafter be rendered incapable of
holding any office of honor, trust or profit, of voting
at any election, of serving as a juror, and of giving
testimony.’

The rule contended for by the defendant's
counsel, that a pardon restores the competency, is
limited to cases where the disability is a consequence
of the judgment. But where the disability is annexed,
by the express words of the statute, to the conviction,
the pardon will not, in such case, restore the
competency. It can only be done by act of the
Legislature. At every session there are applications of
this character.

In that case, the disability was in consequence of
the statute. In this case, the disability is in
consequence of the Constitution, and cannot be
removed by the pardon of the Governor; and the
pardon cannot restore the competency. No matter
what may be the opinion upon the other side, the
matter will, some time or another, come before the
Court of last resort of this State for decision, if we
leave the report of the Committee in its present
condition, and adopt it. The amendment proposed by
the Delegate from Nelson is short. It is well worded.
It frees the question of all doubt, and it puts the
matter where it should be.

Mr. STRAUS. I simply want to say, that the
Committee investigated that question very
thoroughly, and we did not run across the isolated
case in Illinois during our investigation. I read from
McCreary on Elections, and he refers to some forty-
odd cases, in various States of the Union and in the
Supreme Court of the United States, from which he
deduces the following text:

“A general and absolute pardon granted by the
Governor of a State, by virtue of power conferred
upon him to grant the same, relieves the person to
whom it is granted, not only from the punishment
provided by his sentence, but from all the
consequential disabilities of the judgment of
conviction, and restores such person to the full
enjoyment of his civil rights, including the right to
vote.”

He does not refer to the case cited by the
gentleman, but does refer to some forty-odd cases in
the Union, as well as to a case decided by the United
States Supreme Court, in 16 Wall. These disabilities,
that operate upon the party by virtue of the judgment,
are part of the judgment; and whenever a pardon is
granted, it restores a man to his civil capacities.

Mr. PUGH. As there seems to be some doubt,
why is not the gentleman willing to accept an
amendment that will obviate all question.

Mr. STRAUS. | do not think the matter is open to
trouble, simply because you may find a stray case,
here and there, in opposition.

Mr. MACKOY,. Has the Court of Appeals of this
State ever decided the question?

Mr. STRAUS. They have had no occasion to

pass upon it.

Mr. MACKOY. I would ask the gentleman if the
Court of Appeals is bound by the decisions of Courts
of other States, which may turn upon different
statutory or Constitutional provisions, and would it
not be a new matter altogether if it came before the
Court of Appeals of this State, and would the
decisions of other Courts be binding upon the Court
of Appeals of this State, or would they be any thing
more than persuasive?

Mr. STRAUS. It would be impossible in the
organic law of the State, to undertake to provide
against every possible case decided (continuing to
read):

“The power thus conferred is unlimited with the
exception stated. It extends to every offense known to
the law, and may be exercised at any time after its
commission, either before legal proceedings are
taken, or during their pendency, or after conviction
and judgment. This power of the President is not
subject to legislative control. Congress can neither
limit the effect of his pardon, nor exclude from its
exercise any class of offenders. The benign
prerogative of mercy reposed in him cannot be
fettered by any legislative restrictions. Such being the
case, the inquiry arises as to the effect and operation
of a pardon, and on this point all the authorities
concur. A pardon reaches both the punishment
prescribed for the offense, and the guilt of the
offender; and when the pardon is full, it releases the
punishment and blots out of existence the guilt, so
that, in the eye of the law, the offender is as innocent
as if he had never committed an offense.”

The Supreme Court of the United States says
that, and all the authorities concur in that that Court
did not find the Illinois case.

Mr. HARRIS. Have you examined those forty-
odd cases and found in anyone of them where it is
stated by the Court that the Governor can relieve
from a disability imposed by the Constitution?

Mr. STRAUS. The Mississippi case, the Oregon
case, and Michigan case, were all of them
Constitutional cases.

Mr. MONTGOMERY. On yesterday I offered an
amendment similar to the amendment of the Delegate
from Nelson, and submitted some few remarks,
giving my views upon this question, at which time I
said that I thought this question to be, at least, a
doubtful one, and gave it as my opinion that the
Governor would not have the authority to relieve by

33
pardoning a party from a disability prescribed by the
Constitution, unless that power was delegated in the
Constitution. 1 made that statement without having
consulted any authorities on the subject, and merely
as my opinion. I have since that time very heartily
undertaken to examine that question. I have had very
little time and opportunity to do so; but, in my
investigation, I have found enough on the subject to
convince me that the question is sufficiently doubtful
to require that it should be admitted in the
Constitution. I find in the American and English
Encyclopedia of Law the following:

“A pardon restores the party to all former right,
and is said to make the witness a new creature, and
give him a new capacity is the consequence of
conviction and judgment. The pardon removes the
incapacity only when it is a consequence of the
judgment according to the common law, and not
annexed to a conviction by express word but where
the disability is annexed [“the conviction of a
particular offense, by the express words of a statute,
the general rule is that a pardon will not restore his
competency. Thus, if a man be found guilty on an
indictment for a felony at common law, a pardon will
make him a good witness; but if he be convicted of
perjury, or subornation of perjury, he will not be
rendered competent by a pardon, if the statute
expressly provides that he shall sever be admitted to
give evidence in any Court of record.”

I find a good many references to sustain this text.
I have not been able to hunt up the authorities and
read them, but they are even here-some eight or ten
from New York and Pennsylvania. I find further on
that subject in the case of Edwards vs. The
Commonwealth (17 Reporter, Va.). I have not found
the reported case itself, but I find a syllabus in the
third American and English Encyclopedia of Law, as
follows:

“The effect of a pardon granted by the Governor
is to relieve the accused of the punishment annexed to
the offense for which he was convicted, and of all
penalties and consequences, except political
disabilities, growing out of the conviction and
sentence.” Edwards vs. Commonwealth, 17 Kept.
(Va.), 286.”

Mr. MUIR I ask leave to withdraw the
amendment offered by me, and substitute language
offered by the Committee in lieu of it, which is
acceptable to me.

The CHAIRMAN. Without objection, it can be
done.

The READING CLERK. The Delegate from
Nelson withdraws the amendment offered by him,
and in lieu thereof offers the following:

“But persons hereby excluded may be restored to
their civil rights by Executive pardon.”

The READING CLERK. The next amendment is that
proposed by the Delegate from Covington, First
District:

Amend by adding at the end of line 10, section 1:
“Persons giving testimony against others in
prosecutions for bribing or receiving a bribe shall be
exempt from the penalty here denounced.”

The READING CLERK. The next amendment is
that proposed by the Delegate from Woodford as a
substitute for subsection | of section 1:

Any person convicted by a Court of competent
jurisdiction of giving or receiving a bribe at any
election, or of corruptly making a false return of any
election, of forgery, perjury, false swearing, or of any
felony, as now defined by law, shall be disqualified
to vote or hold office in this State, unless pardoned
by the Governor. The General Assembly shall enact
suitable laws to carry this section into effect.

Mr. BLACKBURN. With the indulgence of the
Committee, I will try to give my reasons for offering
the above as a substitute for the section as reported
by the Committee. We are all agreed that the purpose
of this discussion and this work is to protect the
ballot-box from fraud and corruption. The Committee
unquestionably had that purpose in view when they
made this report, and the only difference between us
is as to the best mode of accomplishing that purpose.
1 think there is a serious objection to the subsection
as reported by the Committee. The wording is as
follows:

“Persons who may be convicted in any Court of
competent jurisdiction of treason or felony, or of such
high misdemeanors as the General Assembly may
declare, shall operate as an exclusion from the right
of suffrage.”

It is the uncertainty of the language employed in
the report of the Committee to which I object. It
occurs to me that that report, if adopted and made a
part of our Constitution, fails to define the offenses
which will debar one from the right of suffrage. It is a
delegation, or an attempt on the part of this
Convention to delegate, not only the power to the
Legislature to define those offenses or to denominate
them, but it is a delegation of that power so us to
relieve this Convention of what, I believe, it is our
duty to do. It is necessary, it occurs to me, that we
should so discharge the duty required of us here, that
when we return to our homes, to make a report to the
people as to how we have discharged that duty, we
will be able to give them a satisfactory answer to
such inquiry as they may make of us.

Suppose, when this work is finished, so far as we
are concerned, and submitted to the voters of
Kentucky for their adoption or rejection, some citizen
should ask you or any of us: “Well, what about our

34
franchise that we hold so dear, and is so held by all
who love our form of government? What have you
done about it?” “Here is our section,” you say, “Well,
but I do not exactly understand about these ‘high
misdemeanors.” You answer: “That simply means
we have delegated to the Legislature the duty of
fixing that matter.” “Then you do not know, you
cannot tell me, when you are back from that
Convention after the time you have been there, what
act of mine it is that is to rob me forever of the most
sacred right of an American citizen?” “No, sir, I have
delegated that power to the Legislature.” “Why. did
you do it?”

Can it be, sir, that any Delegate here is willing to
say, “I was afraid of the responsibility?” I take it not.
Are we willing to admit that we were unable to vote
on that question, and determine it in a plain and
intelligible manner? I say not.

This Convention, with its wisdom and
experience in legislative matters, can do what any
Legislature in the Commonwealth of Kentucky may
do. Therefore, we are cut off from that excuse, and
we are unable to answer the citizen why it is we have
left any doubt and uncertainty around this most
sacred of all rights of an American citizen. I have no
more interest in the work of this Convention than any
other Delegate. It is a pride to do our work so as to
meet the approval and endorsement of the people of
this Commonwealth when we send it to them; and I
do hope that, before we pass from this question, we
will make it so clear and so unmistakably plain, that
the humblest and simplest citizen in this
Commonwealth may understand what the penalty
shall be for every violation of the law. It occurs to me
that that settles the question. I may be mistaken about
that. I only submit it as the best I could offer.

It may be objected that the word “felony” may
be changed by the Legislature. It was, for that reason
I added there, “as now defined by statute or by law,”
and thereby the citizen will know whether he has
committed such felony, or crime denominated by the
Legislature as felony, as will rob him of this right of
suffrage. He has but to turn to the statute of 1890, and
to the decisions of the Court, as to what felony is
now; and, if he has committed that offense, and is
convicted of it, he loses his franchise. If it is not one
of those crimes, this Constitution of ours guarantees
and protects him in the right of suffrage. I hope the
Committee will pardon me if | refer, for a moment, to
their treatment of this question. They insist, now, that
the Legislature must have some latitude; that we may
safely trust the Legislature to fix this question. I
remember a day or two ago, when this other
provision was discussed with reference to this secret
ballot system, and that, all must admit, is an
experiment with us to-day, they would hear nothing

of that sort, but urged it should be fixed definitely
and beyond question in this Constitution.

When some of us suggested we had, perhaps,
better provide in this Constitution for a fair election,
and leave it to the Legislature to try to see which was
the best, try the secret ballot for three, four, five or
ten years, and if they found that corruption still
creeps in under it, and that it was a failure, they then
could return to the rira roce system, or the
Legislature might in their wisdom, and after
experience, devise some other means of securing the
ballot-box from fraud and corrupt practices. The
Committee would hear nothing of that. They insisted
that the secret ballot was right; that we should fix it in
the Constitution, and it is questionable whether they
will agree that the Legislature may change it after
awhile, if they find this ballot system not only fails to
do what they hoped it will accomplish, but absolutely
be a cloak and shield for the very men who would
violate the election laws of this Commonwealth. If it
was right to put that in the Constitution, certainly we
ought to define, as far as possible, and make plain
those offenses, the violation of which shall forfeit to
the citizen his right to vote.

Mr. STRAUS. I merely want to ask the
gentleman, as I heartily concur in every thing he said,
in what respect does his amendment differ from the
amendment now adopted by the Committee? I
understand the entire ground is covered in the
Committee’s amendment.

Mr. BLACKBURN. I think the difference is this;
that the word “felony” is defined by law today, and
therefore, my amendment does not leave it to the
Legislature hereafter to denominate some act as
felony, and thereby deprive a citizen of the right to
vote.

Mr. STRAUS. I do not care to make any
argument; but I think the entire ground has been
covered in the Committee’s report, as amended. The
discretion of the Legislature, under that provision, “or
of such high misdemeanor as the General Assembly
may declare shall operate as an exclusion from the
right of suffrage.” I have tried to get rid of that. It is
an attempt to give a certainty, a fixedness to the
provision, so that we may be able to tell the people
what act will deprive them of the right of suffrage.

Mr. STRAUS. The gentleman’s substitute reads,
“felonies as now defined by law.” Suppose there are
quite a number of felonies made hereafter. Your
provision would not cover them.

Mr. BLACKBURN. I take it there is no question
now about what a felony is. I thought all you lawyers
understood it. | have heard it so often explained that I
thought I even understood it.

Mr. BRENTS. There is another difference
between the report of the Committee and the

35:
substitute offered by the gentleman from Woodford.
The provision of the report leaves it to the Legislature
to define what a “high misdemeanor” is, and with
power to disfranchise all persons who may be found
guilty of violating the law. The substitute removes
that objection, and does not leave to the Legislature
the right to disfranchise citizens of this
Commonwealth for such offenses as they may
prescribe.

The READING CLERK. The next amendment is that
proposed by the Delegate from Washington:

Amend subsection 3 of section 1 by striking out
the words, “idiots and insane persons,” and substitute
the following words: “Persons who are adjudged to
be idiots or lunatics by a Court of competent
jurisdiction.”

Mr. McCHORD. The motive that prompted me
to offer that amendment was this: It is a question to
be determined, as to whether a person is a lunatic or
idiot. The sanity of a person is always presumed; and
shall election officers, while elections are going on,
stop the election and hear proof as to the sanity or
insanity of a person? In other words, to hold an
inquest as to the sanity or insanity of the proposed
voter.

Mr. BRONSTON. I would suggest to the
gentleman a change in the phraseology, and say
“have been,” instead of “who are.”

Mr. McCHORD. My idea in couching the
amendment in that language was this: that a person
may have been adjudged to have been a lunatic, but
by a subsequent trial he may have been adjudged to
be restored to his mental faculties. While a judgment
of the Court is in full force and effect, adjudging him
to be insane, he ought not to be entitled to vote, and
that judgment should be conclusive. After having
been restored by the judgment of the Court to his
proper condition of mind, he would be entitled to
vote, notwithstanding, by the previous judgment, he
has been adjudged to be of unsound mind.

Mr. McDERMOTT. I do not think the
amendment of the gentleman is necessary, and I hope
it will not be adopted. This language, as used here,
has been used again and again in other Constitutions
exactly as it is here; and I wish to read, for the
instruction of the Committee, without taking up any
of their time unnecessarily, what Mr. McCreary on
Elections says on this very section.

“The vote of an idiot or person non compos
mentis ought not to be received; and, if such a person
has voted, his vote may be rejected upon a contest,
without a finding in lunacy. Thompson vs. Ewing.
But the vote of a man otherwise qualified, who is
neither a lunatic nor an idiot, but whose faculties are
merely enfeebled by old age, is not to be rejected.

When a vote is attacked on the ground that the voter
who cast it was non compos mentis, it is necessary to
establish satisfactorily, by competent evidence, the
alleged want of intelligence; and the test would
probably be about the same as in cases where the
validity of a will is attacked on the ground that the
testator was not of sound mind when it was executed.
If the voter knew enough to understand the nature of
his act—if he understood what he was doing—that is
probably sufficient.”

The better opinion seems to be, that idiots and
lunatics are, by the common political law of England
and this country, disqualified from voting. But these
unfortunate persons are expressly excluded from the
right to vote by the Constitutions of Delaware, Iowa,
Kansas, Maryland, Minnesota, Nevada, New Jersey,
Ohio. Oregon, Rhode Island, West Virginia,
Wisconsin, and perhaps by other States.

These other States use the same language used
by the Committee in this report. You ought to leave
something to the judges or officers of election, and, 1
think, that you ought not to require in all cases that
there should be an inquest of lunacy before an
election. There are a great many lunatics never tried
at all. Their families keep them at home, where they
can protect them and look after them; and yet in an
emergency, at an election, some man so afflicted
might, if you put this in the Constitution, be allowed
to vote. Hitherto they have been rejected, because it
was the understanding that they were not competent
to discharge their duties, and as the Constitution did
not use any language similar to that offered by the
gentleman from Washington, they would not have
been received; but if you put in his words, will not
persons whose minds are impaired be accepted at the
polls as lawful voters, unless they have been
previously decided to have been idiots or lunatics by
a Court—and this when they are in fact utterly unable
to tell what they are doing? I think, therefore, the
amendment is unnecessary and unwise; that the
language ought to be allowed to remain as it is. You
let your judges of election decide on the question of
age, and on the question of residence, and on many
other questions of great importance; and, I think, you
can safely trust them with this.

Mr. J. L. PHELPS. How would the Delegate
have the judges of election to ascertain that question,
that fact?

Mr. McDERMOTT. Like they do any other
question of fact or law. The judges of elections are
really judges, and are called upon to decide many
complicated questions.

Mr. J. L. PHELPS. How would they ascertain the
condition of the voter's mind ?

Mr. McDERMOTT. By asking him questions,
and by taking the testimony of the members of his

36
family, and the testimony of experts, or otherwise;
and if you have registration in all the cities, and have
small precincts in the country, as I believe you will
have, there will be no trouble whatever in giving the
judges of election time to decide these important
questions.

Mr. J. L. PHELPS, Has it been the experience of
the Delegate from Louisville that the ordinary judges
of election would be capable of telling whether a man
was a lunatic or not, if he, at the time, was in a lucid
interval ?

Mr. McDERMOTT. I have no doubt they could
decide it, like they decide any other question. 1 am
very sorry the gentleman from Russell did not
advance these arguments in our Committee, of which
he is a member, so that we might have had the benefit
of his valuable assistance; but it seems we have lost
it.

Mr. J. L. PHELPS. I desire to say to the Delegate
that I am authorized by the saying of the wise man to
change my mind. Solomon says a wise man changes
often.

Mr. McDERMOTT. I am sorry the gentleman
did not change his mind in time to enlighten the
benighted Committee. It is a pity he did not devote a
little study to this subject before the making of the
report.

Mr. J. L. PHELPS. I would like to ask the
gentleman if it is not a fact that I did offer
suggestions to the Committee?

Mr. McDERMOTT, Undoubtedly, and all of
them were very valuable, and as we relied on his
unerring judgment and native shrewdness, we offered
this report with the greatest feeling of security.

Mr. J. L. PHELPS. Did I not say in the
Committee that there were some things in the report
that I could not support in the Convention?

Mr. McDERMOTT. Yes; but the gentleman
never gave us a note of warning of the fate to be
visited upon us when he should arise and make an
attack on this section. We felt that if there was one
section which would receive the hearty support of the
gentleman from Russell, and would be sustained by
his great ability and carried through successfully by
his efforts, it was this one section.

Mr. J. L. PHELPS. The gentleman has learned
that idea by attending political conventions, which
require a man to vote for a candidate of his party
whether he is for him otherwise or not.

Mr. McDERMOTT. I do not understand the
point exactly.

Mr. McELBOY. I understood the gentleman
from Louisville to assume that the wording of this
was taken from other Constitutions?

Mr. McDERMOTT. I did not say that. What I
did say yesterday was, that whenever a gentleman
offered any new proposition here, there were some
other gentlemen on this floor who immediately,
without a moment’s hesitation, and apparently
without a moment’s thought, would rush up and grab
a copy of the old Constitution and copy off some
section of it and offer it as an amendment. I did not
say that we should not study and profit by the
Constitutions of other States; nor did I mean that we
should condemn our own. All I beg for is fair
consideration of new things. I had not expected,
either, that the gentleman who has done so much
thinking in this Convention would rise in defense of
the idiots and lunatics of Kentucky. I do not know
what he can mean, unless it is that he, too, is in favor
of giving full latitude to the idiots and lunatics of the
State. I do not know how many of them constitute the
constituency which has the honor to send him here.
(Laughter. )

37