Fundamental, Not Absolute: Implications of the Minnesota Supreme Court’s Ruling in Schroeder v. Simon
By John Leiner*
Minnesota Governor Tim Walz recently signed into law Senate Bill SF 26, which restored the franchise of over 55,000 formerly incarcerated individuals with felony convictions who lacked the right to vote until their sentences had ended. These individuals will have their right to vote “restored during any period when [they are] not incarcerated for the offense.” Therefore, they will not have to wait until their sentence’s expiration, the date of which may be decades into the future. Following the Minnesota House’s passage of HF 28 in early February, SF 26, coined Restore the Vote, will take effect on July 1. Minnesota will join 21 other states in allowing franchise restoration after felony convictions. The state joins North Dakota, Illinois, Indiana, and Michigan as Midwestern states allowing restoration following incarceration for all types of felonies.
Restore the Vote’s passage arrived on the heels of the Minnesota Supreme Court’s ruling in Schroeder v. Simon, which addressed an issue the legislation ought to resolve by allowing formerly incarcerated individuals with felony convictions to vote. The state legislature passed Minnesota Statute §609.165 in 2015 to permit restoration of certain civil rights after criminal conviction. Subdivision one states that after discharge of the conviction the “discharge shall restore the person to all civil rights and to full citizenship, with full right to vote and hold office.” Since subdivision one only calls for restoration of voting rights after “discharge” of the entire sentence (including supervised release and parole), not release from prison, appellants in Schroeder argued in 2019 that § 609.165 violated Article VII, Section 1 of the Minnesota Constitution. That constitutional provision states that a person convicted of a felony may not vote in the state “unless restored to civil rights.” Appellants claimed that “being released or excused from incarceration following a felony” constituted “restor[ation] to civil rights,” and therefore § 609.165’s discharge requirement ran afoul of the constitutional right to vote embodied in Article VII. They also argued that § 609.165 violates the equal protection provision of Article I, Section 2 of the Minnesota Constitution.
In the first stage of its analysis, the Court disagreed with appellants’ contention that the constitution provides for the franchise’s automatic restoration upon release from incarceration, holding that under Article VII, Section 1, a person’s right to vote may only be restored “with an affirmative act or mechanism of the government.” The Minnesota Constitution does not specify a precise timeline for when a person released from prison may have their voting rights restored. However, notwithstanding the absence of such language, the Court reasoned that Article VI’s text is unambiguous. A person’s “convict[ion] of…[a] felony” is a governmental act because the government prosecutes and convicts a felony. The exception to the felony voting prohibition—”unless restored to civil rights”—immediately follows language enacting the prohibition. Since the “government has taken away [the franchise] by its affirmative decision to prosecute and convict a person of a felony ” it follows that the government alone can “restor[e]” the franchise through legislation.
The Court considered § 609.165’s viability in its second stage of analysis under the equal protection principle of Article I, Section 2. The Court remarked that the principle “does not forbid the Legislature from treating similarly situated persons differently,” but rather limits “the circumstances and extent to which [it] can do so.” The crux of the issue was whether § 609.165 could justifiably treat differently formerly incarcerated people “who have not been discharged” from those who “have been discharged” by restoring the former’s franchise” but not the latter’s. Since section § 609.165 does not “demonstrably and adversely affect[t] one race differently from other races” by allowing more people to vote than previously could, the Court utilized the rational basis standard to determine whether § 609.165 was “one rational means” for the legislature to meet its “legitimate policy goals.” It reasoned that the statute was a “rational way, albeit perhaps an incomplete way” to accomplish the Legislature’s goals of “removing stigma and promoting rehabilitation” for formerly incarcerated individuals; thus, the Court affirmed the court of appeal’s decision.
The Court’s decision in Schroeder has implications for the legislature’s power to control the franchise. It affirms the immense—if not unlimited—power of the legislature to both re-enfranchise and disenfranchise. The Court gives crystalline deference to the legislature to “respond to [the] consequences” of disenfranchisement’s “disparate racial impacts.” This shows the Court’s unwillingness to stretch the meaning of unambiguous constitutional text limiting the franchise’s exercise to fashion a policy outcome the legislature could reach on its own. Indeed, Reform the Vote, once signed into law, will inevitably render § 609.165, subd. 1 moot and expand the franchise by allowing formerly incarcerated people to vote upon release from prison as opposed to sentence completion. Yet there is nothing in the Court’s opinion to suggest that the legislature could not freely repeal Reform the Vote in the future with a different legislature.
Using the same aforementioned “discharge” language, a new law repealing Restore the Vote by installing new exceptions for certain felonies would be permissible so long as incarcerated people with felonies are still unable to vote under Article VII, Section 1 of the constitution. To this point, the Court accentuates the legislature’s power to restore or not restore the right to vote. Since the constitution does not say formerly incarcerated people with felonies may not vote “until restored to civil rights” or that they “must be restored to the right to vote,” the legislature has no “obligation or mandate” to restore the right to vote to these individuals according to the Court.
The Court’s decision to forgo strict scrutiny review of § 609.1565, subd. 1 is also noteworthy. When a Minnesota statute “classifies based on a suspect class or impinges on fundamental rights, the classification must meet strict scrutiny, meaning that it must be narrowly tailored to serve a compelling government interest.” In Schroeder, the Court avoided strict scrutiny review by positing that § 609.1565, subd. 1 “[did] not implicate the fundamental right to vote.”  Since the statute allowed for franchise restoration after discharge of one’s sentence, it expanded the franchise for formerly incarcerated people convicted of felonies who could not otherwise vote “unless restored to civil rights” by an affirmative act of the legislature. Section 609.1565, subd. 1 thus did not “imping[e]” on the fundamental right of formerly incarcerated people convicted of felonies whose franchise was not absolute to begin with.
With this reasoning, the Court affirms the meaning of fundamental within the franchise context. A fundamental right does not always mean an absolute right. Whereas the fundamental right for those formerly incarcerated for felony convictions is a more restricted right, the fundamental right of those outside this group is less restricted. That fundamental in the franchise context does not mean absolute is not earth-shattering. Indeed, the franchise is restricted not only for formerly incarcerated people with felonies but also for individuals of certain “[age], [residence], [and] mental capacity.” However, a slightly different reading of “fundamental” could have led the Court to a much different outcome. If the fundamental right to vote was implicated it would have required the government to state a compelling government interest for restoring the franchise only after discharge—for which the government may have lacked compelling evidence.
* Staff Member; J.D. Candidate, UMN Law School – Class of 2024
 Sydney Kashiwagi, Minnesota governor signs bill expanding voting rights for ex-felons CNN (Mar.. 3, 2023, 1:32:00 PM), https://www.cnn.com/2023/03/03/politics/tim-walz-minnesota-voting-rights/index.htmlFor helpful background on discourse surrounding felon disenfranchisement laws and reform, see, e.g., Michael Morse, The Future of Felon Disenfranchisement Reform: Evidence from the Campaign to Restore Voting Rights in Florida, 109 Cal. L. Rev. 1143 (2021); Erin Kelly, Do the Crime, Do the Time – And Then Some: Problems with Felon Disenfranchisement and Possible Solutions, 51 U. Tol. L. Rev. 389 (2020); Jaylen Amaker, Danielle M. Lyn & Marquan Robertson, Mass Incarceration & The Minority Vote: The Case for a Federal Ban on Felon Disenfranchisement, 36 Notre Dame J.L. Ethics & Pub. POL’y 731 (2022).
 SF 26, 93rd Leg., Reg. Sess. (Minn. 2023), available at https://www.google.com/url?q=https://www.revisor.mn.gov/bills/text.php?number%3DSF26%26version%3Dlatest%26session%3Dls93%26session_year%3D2023%26session_number%3D0&sa=D&source=docs&ust=1680135751949432&usg=AOvVaw2wPNb4ysH4_qpXSqsjoP8C.
 See Minnesota Felony Disenfranchisement Challenge, Democracy Docket, (Feb. 15, 2023, 11:52:00 AM), https://www.democracydocket.com/cases/minnesota-felony-disenfranchisement-challenge/.
 HF 28, 93rd Leg., Reg. Sess. (Minn. 2023). This is the Minnesota House of Representative’s companion statute to SF 26.
 Kashiwagi, supra note 1.
 Fredreka Schouten, With newfound powers, statehouse Democrats race to expand voting rights, CNN (Jan. 25, 2023, 7:04:00 AM) https://www.cnn.com/2023/01/25/politics/statehouse-democrats-push-voting-rights-bills/index.html; Disenfranchisement & Rights Restoration, Voting Rights Lab, https://tracker.votingrightslab.org/issues/disenfranchisement-and-rights-restoration?law=65#issues_map.
 Disenfranchisement & Rights Restoration, supra note 6..
 Schroeder v. Simon, No. A20-1264, 2023 Minn. LEXIS 36 (Minn. Feb. 15, 2023).
 Minn. Stat. § 609.165, subd. 1 (2015).
 Id.; Schroeder, 2023 Minn. LEXIS at *4; Minn. Const. art. VII, § 1.
 Minn. Const. art. VII, § 1.
 Schroeder, 2023 Minn. LEXIS at *4; Id.; Minn. Const. art. VII, § 1; Minn. Stat. § 609.165, subd. 1 (2015).
 Schroeder, 2023 Minn. LEXIS at *28, n.12 (citing Kahn v. Griffin, 701 N.W.2d 815, 829 n.13 (Minn. 2015)).
 Schroeder, 2023 Minn. LEXIS at *4-5; Minn. Const. art. VII, § 1.
 Minn. Const. art. VII, § 1.
 Schroeder, 2023 Minn. LEXIS, at *13-15.
 Id. at *14.
 Id. at *14-15.
 Minn. Const. art. I, §2.
 Schroeder, 2023 Minn. LEXIS, at *32–33.
 Id. at *41.
 Id. at *48-51.
 Id. at *52 (citing Fletcher Props, Inc. v. City of Minneapolis, 947 N.W.2d 1, 27-29 (Minn. 2020).
 Id. at *53.
 Id. at *17-19; Lindsay Dreyer, Felon Disenfranchisement: What Federal Courts Got Wrong and How State Courts Can Address It, 48 Mitchell Hamline L. Rev. 1, 21 (2022).
 Schroeder, 2023 Minn. LEXIS, at *56.
 Id. at *44–45.
 Id. at *29.
 Id. at *29 (emphasis included).
 In re Welfare of the Child of R.D.L., 853 N.W.2d 127, 133 (Minn. 2014) (citing Greene v. Comm’r of Minn. Dep’t of Human Servs., 755 N.W.2d 713, 725 (Minn. 2008)).
 Schroeder, 2023 Minn. LEXIS, at *47.
 Minn. Const. art. VII, §1.
 Schroeder v. Simon, 2023 Minn. LEXIS, at *31, n.11.
 Schroeder v. Simon, 2023 Minn. LEXIS, at *32.
 See, eg., Dreyer, supra note 26, at 26.; Mark Haase, Civil Death in Modern Times: Reconsidering Felony Disenfranchisement in Minnesota, 99 Minn. L. Rev. 1913 (2015).