1
STATE OF MINNESOTA

IN SUPREME COURT

A20-1264

Court of Appeals Thissen, J.
Concurring, Anderson, J., Gildea, C.J.
Dissenting, Hudson, J.
Jennifer Schroeder, et al.,

Appellants,

vs. Filed: February 15, 2023
Office of Appellate Courts
Minnesota Secretary of State Steve Simon,

Respondent.

________________________

Craig S. Coleman, Jeffrey P. Justman, Kirsten L. Elfstrand, Faegre Drinker Biddle & Reath
LLP, Minneapolis, Minnesota;

Teresa J. Nelson, David P. McKinney, American Civil Liberties Union of Minnesota,
Minneapolis, Minnesota; and

Julie Ebenstein, American Civil Liberties Union, New York, New York, for appellants.

Keith Ellison, Attorney General, Angela Behrens, Jason Marisam, Assistant Attorneys
General, Saint Paul, Minnesota, for respondent.

Jenna K. Johnson, Ballard Spahr LLP, Minneapolis, Minnesota; and

Louis Petrich, Ballard Spahr LLP, Los Angeles, California, for amicus curiae American
Probation and Parole Association.

Lyndsey M. Olson, Saint Paul City Attorney, Anthony G. Edwards, Megan D. Hafner,
Assistant City Attorneys, Saint Paul, Minnesota; and

Kristyn Anderson, Minneapolis City Attorney, Minneapolis, Minnesota, for amici curiae
City of Saint Paul and City of Minneapolis.
2

Katherine M. Swenson, Amran A. Farah, Greene Espel PLLP, Minneapolis, Minnesota,
for amici curiae District of Columbia, et al.

Anthony B. Sanders, Institute for Justice, Minneapolis, Minnesota; and

Adam Shelton, Anya Bidwell, Institute for Justice, Arlington, Virgini a, for amicus curiae
Institute for Justice.

Tara Kalar, ISAIAH, Saint Paul, Minnesota, for amicus curiae ISAIAH.

Marc A. Al, Andrew J. Pieper, Riley A. Conlin, Emily C. Atmore, Stoel Rives LLP,
Minneapolis, Minnesota, for amici curiae League of Women Vot ers Minnesota, Common
Cause Minnesota, and Minnesota Second Chance Coalition.

Bradford Colbert, Legal Assistance to Minnesota Prisoners and Reentry Clinic, Saint Paul,
Minnesota; and

Joshua Esmay, Legal Rights Center, Minneapolis, Minnesota; and

Emily Hunt Turner, All Square, Minneapolis, Minnesota, for amici curiae Legal Assistance
to Minnesota Prisoners and Reentry Clinic, Legal Rights Center, and All Square.

Mark R. Bradford, Maria P. Brekke , Bassford Remele, P .A., Minneapolis, Minnesota, for
amicus curiae Minnesota Association of Black Lawyers.

John J. Choi, Ramsey County Attorney, Jeffrey A. Wald, Assistant County Attorney, Saint
Paul, Minnesota, for amicus curiae Ramsey County Attorney’s Office.

Joseph Plumer, Plumer Law Office, Bemidji, Minnesota; and

Riley Plumer, Hobbs, Straus, Dean & Walker , LLP, Washington, D .C., for amicus curiae
Red Lake Band of Chippewa Indians.

Henry Allen Blair, Volunteers of America Minnesota and Wisconsin, Saint Paul,
Minnesota, for amicus curiae Volunteers of America Minnesota and Wisconsin.

Tara K alar, World Without Genocide, Saint Paul, Minnesota, for amicus curiae World
Without Genocide.
________________________

3
S Y L L A B U S
1. Under Article VII, Section 1, of the Minnesota Constitution, a person
convicted of a felony cannot vote in Minnesota unless the person’s right to vote is restored
by some affirmative act of the government including a law passed by the Legislature .
Article VII, Section 1, does not provide that a person deprived of the right to vote due to a
felony conviction is automatically restored to that right upon release from incarceration.
2. Minn. Stat. § 609.165 (2022) does not violate the fundamental right to vote.
3. Plaintiffs have not offered sufficient evidence to prove that Minn. Stat.
§ 609.165 violates the equal protection principle contained in the Minnesota Constitution.
Affirmed.
O P I N I O N
THISSEN, Justice.
Article VII, Section 1, of the Minnesota Constitution provides that “a person who
has been convicted of treason or felony” shall not be entitled or permitted to vote in any
election in this state “ unless restored to civil rights . . . .” Minnesota Statutes section
609.165 (2022) provides a statutory mechanism to restore civil rights of persons convicted
of a felony. Under the statute, the civil rights of a person convicted of a felony, including
the right to vote, are restored upon “discharge” of the felony sentence. Id., subd. 1.
Appellants—each of whom was convicted of a felony but is now living in the
community while on probation or supervised release—filed an action for declaratory relief
and injunctive relief against respondent Steve Simon in his official capacity as Minnesota
Secretary of State. Appellants sought a declaration “that individuals are restored to civil
4
rights and possess the fundamental right to vote guaranteed by Article VII of the Minnesota
Constitution by virtue of being released or excused from incarceration following a felony.”
Appellants also claimed that section 609.165 violates the fundamental right to vote and the
guarantee of equal protection embedded in the Minnesota Constitution. The district court
granted the Secretary of State’s motion for summary judgment and dismissed the lawsuit.
The court of appeals affirmed. Schroeder v. Simon, 962 N.W.2d 471, 487 (Minn.
App. 2021).
We granted review to determine whether Article VII, Section 1, requires that
persons convicted of a felony be restored to the right to vote upon being released or excused
from incarceration and whether section 609.165 is contrary to the fundamental right to vote
or the equal protection principle embodied in the Minnesota Constitution. We conclude as
follows: First, under Article VII, S ection 1, of the Minnesota Constitution, a person
convicted of a felony cannot vote in Minnesota unless the person’s right to vote is restored
in accordance with an affirmative act or mechanism of the government restoring the
person’s right to vote, such as an absolute pardon or a legislative act that generally restores
the right to vote upon the occurrence of certain events. We disagree with appellants that
the constitution provides that the right to vote is aut omatically restored upon release from
incarceration. Second, because Article VII, Section 1, of the Minnesota Constitution,
defines the scope of the right to vote in Minnesota and appellants do not challenge the
validity of Article VII, Section 1, Minnesota Statutes section 609.165 does not violate the
fundamental right to vote. Third, appellants have not offered sufficient evidence to prove
5
that section 609.165 violates the equal protection principle contained in the Minnesota
Constitution. Therefore, w e affirm.
FACTS
Appellants Jennifer Schroeder and Elizer Eugene Darris were each convicted of a
felony but are now living in the community while on probation or supervised release. 1
Schroeder was convicted of first -degree sale of a controlled substance, Minn. Stat.
§ 152.021, subd. 1(1) (2022). T he district court stayed e xecution of a presumptive
98-month prison term and placed her on probation for 40 years. Schroeder chose not to
appeal her sentence. She will remain on probation until 2053 unless the district court issues
an order discharging her from probation before t hat date or she receives a pardon or other
executive clemency . During her probation, Schroeder earned a degree in addiction
counseling and is now an addiction counselor. She also volunteers in her community, pays
taxes, and is active in her church. But because she remains on probation, she cannot vote.
Darris was convicted of second -degree intentional murder, Minn. Stat. § 609.19,
subd. 1(1) (2022). The district court sentenced Darris to 306 months in prison. In 2016,

1 The court of appeals dismissed the claims of co -plaintiffs Christopher James
Jecevicus-Varner and Tierre Davon Caldwell as moot because they regained the right to
vote when their felony sentences expired. Schroeder, 962 N.W.2d at 478 n.2. Schroeder
and Darris attested to the ir conviction and sentence in affidavits filed at summary
judgment. We also take judicial notice of the public court record of their conviction and
sentence. See In re Reissuance of an NPDES/SDS Permit to U.S. Steel Corp., 954 N.W.2d
572, 581 n.8 (Minn. 2021).

6
the Department of Corrections placed Darris on supervised release.2 His supervised release
is scheduled to expire in 2025. While on supervised release, Darris has worked at the
American Civil Liberties Union of Minnesota as an organizer among other jobs. He also
volunteers as a mentor, reentry coach, and campaign staffer. But because he remains on
supervised release, he cannot vote.
In 2019, appellants filed an action for declaratory and injunctive relief. Appellants
sought three declarations. First, they sought a declaration “that individuals are restored to
civil rights and possess the fundamental right to vote guaranteed by Article VII of the
Minnesota Constitution by virtue of being released or excused from incarceration following
a felony.” Second, they sought a declaration that the denial of the right to vote “to
individuals who live in the community while subject to parole, probation, or another form
of supervised release” violates the fundamental right to vote in Article VII, Section 1, and
the equal protection principle embodied in the Minnesota Constitution.
3 Third, appellants
sought a declaration that the restoration statute, Minn. Stat. § 609.165, “shall not be read

2 “Supervised release is the current term for the release practice formally known as
parole.” State v. Schwartz , 628 N.W.2d 134, 139 (Minn. 2001). “Generally, a prison
sentence in Minnesota consists of two terms. The ‘term of imprisonment’ is typically the
first two -thirds of the sentence, with a supervised -release term comprising the remaining
one-third of the se ntence.” State ex rel. Ford v. Schnell , 933 N.W.2d 393, 396–97
(Minn. 2019); see also Minn. Stat. § 244.05, subd. 1 (2022) (“every inmate shall serve a
supervised release term upon completion of the inmate’s term of imprisonment”).

3 As we observed in Fletcher Properties, Inc. v. City of Minneapolis , 947 N.W.2d 1,
20 n.13 (Minn. 2020), “[t]he Minnesota equal protection guarantee is found in the Rights
and Privileges Clause in Article 1, Section 2 of the Minnesota Constitution. We have also
applied the pr inciple under the Uniformity Clause found in Article 10, Section 1, and the
Special Legislation clauses now found in Article 12 of the Minnesota Constitution.”
(citations omitted).
7
to preclude restoration of voting rights prior to discharge.” 4 Accordingly, appellants
requested an orde r requiring the Secretary of State “to immediately and permanently take
steps to ensure that all individuals who have been convicted of a felony but live in the
community shall have their right to vote restored.”
To support their claim, a ppellants submitted statistical data that show that at the
beginning of 2018, roughly 1 percent of white Minnesotans, 6 percent of Black
Minnesotans and 9 percent of Native American Minnesotans who are old enough to vote
in Minnesota could not do so becaus e they had been convicted of a felony but not
discharged from their sentence. See Minn. Just. Rsch. Ctr., Felon Disenfranchisement in
Minnesota 1 (Feb. 21, 2019) (hereinafter Felon Disenfranchisement in Minnesota),
https://e038407e-8024-4a7f-8f8c-
ce70d24cbc8c.filesusr.com/ugd/d2a74f_d6009880598a476ab2e596337f500731.pdf (last
visited Feb. 13, 2023) [opinion attachment]. And the evidence suggests that if the right to
vote were restored by virtue of being released o r excused from incarceration, those
percentages would drop to 0.1 percent, 1.5 percent, and 2 percent, respectively. Id. at 2.

4 Appellants relatedly challenge the constitutionality of Minn. Stat. §§ 201.014 and
.145 (2022). Appellants argue that these statutes unconstitutionally revoke their right to
vote. But section 201.014 merely repeats the language of Minn. Const. art. VII, § 1, by
denying the fundamental right to vote to individuals “convic ted of treason or any felony
whose civil rights have not been restored . . . .” Minn. Stat. § 201.014, subd. 2(1). The
statute then creates a felony offense for individuals who know they are ineligible to vote
but vote anyway. Id., subd. 3. Section 201.145, subd ivision 3, requires state officials to
track individuals who are not eligible to vote due to felony convictions. In other words,
these statutes are the mechanisms for enforcing the disenfranchisement provision of
Article VII, Section 1, of the Minnesota Constitution. Because the statutes simply enforce
the disenfranchisement provision of the Minnesota Constitution, appellants’ contention
that they are unconstitutional is unsound.
8
Both appellants and the Secretary of State sought summary judgment. The district
court granted the Secretary of State’s motion for summary judgment and denied appellants’
motion for summary judgment. The court of appeals affirmed the district court’s order.
Schroeder, 962 N.W.2d 487. We granted review.
ANALYSIS
“We review a grant of summary judgment de novo.” City of Waconia v. Dock ,
961 N.W.2d 220, 229 (Minn. 2021). Summary judgment is appropriate when “there is no
genuine issue as to any material fact and the movant is entitled to judgment as a matter of
law.” Minn. R. Civ. P. 56.01. In evaluating a grant of summary judgment, we must view
the evidence “in the light most favorable to the nonmoving party.” Justice v. Marvel, LLC,
979 N.W.2d 894, 898 (Minn. 2022).
I.
We start with appellant’s argument that Article VII, Section 1, of the Minnesota
Constitution provides that a person convicted of a felony is restored to the right to vote
when released or excused from incarceration. This assertion requires us to interpret the
language of Article VII, Section 1.
Issues of constitutional interpretation are questions of law, which we review
de novo. Shefa v. Ellison, 968 N.W.2d 818, 825 (Minn. 2022). “ ‘The rules applicable to
the construction of statutes are equally applicable’ to the construction of the Minnesota
Constitution.” Id. (quoting Clark v. Ritchie, 787 N.W.2d 142, 146 (Minn. 2010)). When
interpreting our constitution, we start with the text itself. Schowalter v. State , 822 N.W.2d
292, 300 (Minn. 2012).
9
When the text of the constitution is clear, we go no further and “there is no room for
the application of rules of construction.” Kernan v. Holm , 34 N.W.2d 327, 329
(Minn. 1948); see also Shefa, 968 N.W.2d at 825 (explaining that “[w]hen we determine
that the language of a constitutional provision is unambiguous, the language is ‘effective
as written and we do not apply any other rules of c onstruction’ ” (quoting Kahn v. Griffin,
701 N.W.2d 815, 825 (Minn. 2005))); State v. Brooks, 604 N.W.2d 345, 348 (Minn. 2000)
(explaining that we may consider “other indicia of intent” only when the language of the
constitution is ambiguous). But when the text of the constitution is ambiguous, meaning
that it is susceptible to more than one reasonable interpretation, we try to resolve the
ambiguity by “look[ing] to the history and circumstances of the times and the state of things
existing when the constitutional provisions were framed and ratified in order to ascertain
the mischief addressed and the remedy sought by the particular provision.” Kahn,
701 N.W.2d at 825.
A.
Article VII, Section 1, defines who can vote in Minnesota elections. It state s as
follows:
Every person 18 years of age or more who has been a citizen of the United
States for three months and who has resided in the precinct for 30 days next
preceding an election shall be entitled to vote in that precinct. The place of
voting by one otherwise qualified who has changed his residence within
30 days preceding the election shall be prescribed by law. The following
persons shall not be entitled or permitted to vote at any election in this
state: A person not meeting the above requireme nts; a person who has been
10
convicted of treason or felony, unless restored to civil rights ; a person under
guardianship, or a person who is insane or not mentally competent. 5

(Emphasis added. ) The constitutional language is straightforward. It means that a person
convicted of a felony (just like a person younger than 18 years of age or a non-citizen) is
excluded from the set of persons who have a right to—who are “entitled to” —vote. Under
this provision, a person convicted of a felony could be permanently prohibited from ever
being allowed to vote. In fact, such a person is permanently prohibited from voting “unless
restored to civil rights.”
There may be many compelling reasons why society should not permanently
prohibit—or perhaps prohibit at all —persons convicted of a felony from voting. But the
people of Minnesota made the choice to establish a constitutional baseline that persons
convicted of a felony are not entitled or permitted to vote, and the people of Minnesota
have not seen fit to amend the constitution to excise the felon voting prohibition. See Minn.
Const. art. IX (providing for amendment to the Minnesota Constitution). 6 And appellants

5 The original text of the Minnesota Constitution provided that “no person who has
been convicted of treason or any felony, unless restored to civil rights , . . . shall be entitled
or permitted to vote at any election in this State.” Minn. Const. of 1857, art. VII, § 2. The
text was revised as part of general revisions in 1974 to reform the Minnesota Constitution’s
structure, style, and form. We focus in the first instance upon the current language of the
constitution.

6 One solution that would address appellants’ concerns would be an amendment
eliminating the felon v oting prohibition from the constitution. The people of Minnesota
have used the constitutional amendment process many times to eliminate constitutional
provisions that excluded groups of people —such as non- white men, women, and Native
Americans—from voting. See Act of Mar. 6, 1868, ch. 106, 1868 Minn. Laws 149, 149–
51 (codified at Minn. Const. of 1857, art. VII, § 1 (1868)) (expanding the franchise to
non-white males otherwise authorized to vote); Act of Mar. 4, 1875, ch. 2, 1875 Minn.

11
do not argue that the constitutional provision on felon voting is itself unconstitutional
because it conflicts with other values—like equal protection—embedded in the Minnesota
Constitution. That question is left for another day. 7
The real dispute about the constitutional language centers on the meaning and effect
of t he phrase “unless restored to civil rights.” On this point, the parties’ most basic

Laws 18, 18–19 (codi fied at Minn. Const. of 1857, art. VII, § 8 (1875)) (authorizing
women to vote in school affairs); Act of Apr. 21, 1897, ch. 175, 1897 Minn. Laws 331,
331–32 (approved by voters in 1898 and codified at Minn. Const. of 1857, art. VII, § 8
(1898)) (authorizing women to vote for and serve on library boards); Act of Apr. 24, 1959,
ch. 696, 1959 Minn. Laws 1359, 1359–60 (approved by voters in 1960 and codified at
Minn. Const. of 1857, art. VII, § 1 (1960)) (eliminating obsolete provisions on voting rights
of “persons of Indian blood”); Act of June 6, 1969, ch. 996, 1969 Minn. Laws 2000, 2000
(adopted by voters in 1970 and codified at Minn. Const. of 1857, art. VII, § 1 (1970))
(reducing the voting age requirement from age 21 to age 19, which was later reduced to 18
by operation of the Twenty-Sixth Amendment to the United States Constitution ratified in
1971). Between 1942 and 1944, the official published versions of the Minnesota
Constitution removed the word “male” from Article VII, § 1, in recognition of the
Nineteenth Amendment to the United States Constitution.
The people of Minnesota have also approved constitutional amendments that
constrict the right to vote. For instance, the original constitution allowed non- citizen
immigrants to vote under certain circumstances: “White persons of foreign birth, who shall
have declared their intention to become citizens, conformably to the laws of the United
States upon the subject of naturalization.” Minn. Const. of 1857, art. VII, § 1. That
provision was eliminated fr om the constitution in 1896. See Act of Mar. 2, 1895, ch. 3,
1895 Minn. Laws 7, 7–8. Minnesota’s constitution currently prohibits from voting persons
who are not United States citizens and persons who have been United States citizens for
less than 3 months. Minn. Const. art. VII, § 1.

7 In Richardson v. Ramirez, 418 U.S. 24, 56 (1974), the United States Supreme Court
held that restrictions on the right of persons convicted of a felony to vote do not violate the
Fourteenth Amendment to the United States Constitution. Of course, that decision does
not bind us in any way in our as sessment of whether a restriction on the voting rights of
persons convicted of a felony violates the equal protection principle of the Minnesota
Constitution—particularly if Minne sota’s unique heightened rational basis review applies.
See State v. Russell , 477 N.W.2d 886, 889–90 (Minn. 1991) (recognizing heightened
rational basis review).
12
disagreement is over the functional meaning of those words: What is required to restore a
person convicted of a felony to civil rights? The Secretary of State understands that
language to mean that a person is barred from voting absent some affirmative act of the
government expressly stating that the person convicted of a felony now has the right to
vote (as the Legislature did when it enacted section 609.165) or that the felony conviction
underlying the constitutional deprivation of the right is nullified (as in an absolute pardon,
see Minn. Const. art. V, § 7 (establishing the Board of Pardons )); Minn. Stat. § 638.02,
subd. 1 (2022) (authorizing the Board of Pardons to “grant an absolute or a conditional
pardon, but every conditional pardon shall state the terms and conditions on which it was
granted”). In contrast, appellants read the language “unless restored to civil rights” to mean
that the right to vote is automatica lly restored when a person convicted of a felony is
“restored to life in the community” —i.e., when the person is released or excused from
incarceration in prison.
We first observe that the language of Article VII, Section 1, does not use the words
“restored to life in the community” or “restored upon release from prison” as one might
reasonably expect if the constitutional convention delegates and the voters who approved
the constitution intended restoration to occur upon one of those events. That certainl y
raises textual doubt about the reasonableness of appellants’ interpretation. See Buzzell v.
Walz, 974 N.W.2d 256, 265 (Minn. 2022) (rejecting a statutory interpretation argument on
the basis that, had the Legislature intended a particular meaning, it wo uld have chosen a
more direct textual path).
13
Moreover, the Secretary of State’s reading is reasonable. The words “unless
restored to civil rights” are compatible with the notion that rights are restored only in
accordance with a mechanism established by the government (as opposed to the occurrence
of an event not identified in the constitution or in any other law).
Further, the Secretary’s position is consistent with the broader text and structure of
Article VII, Section 1. The constitutional provision is structured to first define broadly
who is eligible to vote (“[e]very person 18 years of age or more who has been a citizen of
the United States for three months and who has resided in the precinct for 30 days next
preceding an election”). Next, it creates exceptions to the general rule that prohibits certain
persons from voting (including “a person who has been convicted of treason or felony” as
well as persons under guardianship or persons who are “insane or not mentally competent”)
even if those persons otherwise fall within the class of eligible voters.
The particular exception at issue here starts out with a clear statement of who is
excepted from entitlement and permission to vote —“a person who has been convicted of
treason or felony”— due to an act of the government (prosecution for and conviction of a
felony) and then, in a subordinate clause, provides an exception to the exception—“unless
restored to civil rights.” The felon voting prohibition turns on an act of government. It is
also the only exception that allows for restoration of civil rights. A reasonable conclusion
to draw from th ese textual features is that an affirmative act of government is required to
restore what the government has taken away by its affirmative decision to prosecute and
convict a person of a felony.
14
To be sure, the language of Article VII, Section 1, does not explicitly say that civil
rights are restored only in accordance with a mechanism established by the government.
But this omission only gets appell ants so far. The specific conclusion that appellants ask
us to reach —that persons convicted of a felony are automatically restored to civil rights
upon a quite specific and particular event (release from prison)—does not follow from the
absence of explici t language requiring restoration by some affirmative act of a public
official. Indeed, appellants do not cite any authority that expressly states that “restored to
civil rights” means “restored to life in the community.”
B.
Appellants turn to the history of the adoption of Article VII, Section 1, to support
their position. They note that the delegates to the 1857 constitutional convention ultimately
had before them two language choices related to restoring the right to vote to persons
convicted of a felon y: the language that ultimately made it into the constitution—“unless
restored to civil rights” and language expressly providing that the Governor and Legislature
may restore a person convicted of a felony to civil rights. 8 From that fact, appellants infer
that the delegates to the constitutional convention did not intend to limit restoration of the
right to vote to affirmative acts by the Governor or Legislature. We do not agree. Even if
we were to find the language of Article VII, Section 1, ambiguous, the history generally
supports the Secretary’s construction, rather than that of appellants.

8 Split over policy concerns, the Democratic and Republican parties of the time
separately produced draft constitutions. See Fred L. Morrison, An Introduction to the
Minnesota Constitution, 20 Wm. Mitchell L. Rev. 287, 295–99 (1994) (laying out the
history of the Minnesota Constitution).
15
The Democratic delegates spent no time debating the language prohibiting persons
convicted of a felony from voting. They passed a draft constitution that included the phrase
“unless restored to civil rights.” Francis H. Smith, rep., The Debates and Proceedings of
the Minnesota Constitutional Convention 422–37 (Earl S. Goodrich, printer, 1857)
(hereinafter Democratic Debates) .
The R epublican delegates took up the report on the Elective Franchise on
August 21, 1857, and debated the following felon voting provision:
No person shall be qualified to vote at any election who shall be convicted
of treason—or any felony—or of voting, or att empting to vote, more than
once in any election—or of procuring or inducing any person to vote illegally
at any election; Provided, That the Governor or the Legislature may restore
any such person to civil rights.

T. F. Andrews, rep., Debates and Proceedi ngs of the Constitutional Convention for the
Territory of Minnesota 540 (George W. Moore, printer, 1858) (hereinafter Republican
Debates). The Republican delegates first considered a motion by David Morgan to delete
the provision altogether on the ground that it was “sweeping,” “difficult of application,”
and “would work great hardship.” Id. Morgan argued that it would be better to address
the parameters of felon disenfranchisement through the legislative process rather than
enshrining the prohibition in the constitution. Id. The motion was rejected without further
discussion. Id. This rejection at least shows that the delegates accepted some limits on the
ability of persons convicted of a felony to vote.
Later, St . Andre Durand Balcombe moved to strike out everything after the word
“felony” so that the provision would read: “No person shall be qualified to vote at any
election who shall be convicted of treason —or any felony.” Id. Nathan Pierce Colburn
16
opposed the amendment “for the reason that it would cut off the power of the Legislature
to restore civil rights . . . .” Id. And in response to the assertion that “[ a] pardon always
restores a person to his legal civil rights,” Colburn stated:
That is usually the case under the laws of the various States; but where there
is a Constitutional provision, that no person shall vote at any election who
shall have been convicted of a particular offense, it is not in the power of the
Legislature or Governor to restore him.

Id. at 540–41. In response to Colburn’s argument, the amendment was amended to leave
in the restoration proviso so that the provision read: “No person shall be qualified to vote
at any election who shall be convicted of treason—or any felony; Provided, That the
Governor or the Legislature may restore any such person to civil rights.” Id. at 541. The
Republican convention adopted that language. Id.
This exchange conveys important information about whether a person convicted of
a felony was automatically restored t o civil rights upon release. First, the common and
uncontested understanding was that a gubernatorial pardon was an affirmative act that
would restore civil rights, and the delegates understood that is how civil rights were
restored. More importantly, the delegates understood that without the restoration proviso,
there would be no mechanism to restore a person’s right to vote. In other words, at the
very least, the Republican delegates understood the first portion of the provision—that no
person convicted of any felony shall be qualified to vote —as a permanent bar. There was
no discussion at all to suggest that anyone believed that persons convicted of a felony
would be restored automatically to the right to vote upon release from incarceration.
17
The draft constitutions were combined by a conference committee that adopted the
more passive phrasing proposed by the Democratic delegates: “unless restored to civil
rights.” See Democratic Debates at 423, 614 –15; Republican Debates at 583. There is no
record of how or why the Democratic language was chosen over the Republican proposal.
See William Anderson & Albert J. Lobb, A History of the Constitution of Minnesota 115–
16, 123–24 (1921). Thus, we have no information about why the Democrat ic language
was adopted. More to the point, nothing in the historical record suggests that it was because
the delegates to the convention believed that persons who lost the right to vote due to a
felony conviction would be restored to the right to vote upon release from incarceration.
Perhaps the only thing we know is that the language ultimately adopted into the
constitution mirrors Minnesota’s territorial statutes that, since 1851, had prohibited persons
convicted of a felony from voting “unless restored to civil rights.” Minn. Rev. Stat. (Terr.)
ch. 5, § 2 (1851). And those same territorial statutes also authorized the restoration of civil
rights through the affirmative act of a gubernatorial pardon. The 1851 territorial statutes
provided that “[i]n all cases in which the governor is authorized to grant pardons, he may
upon the petition of the person convicted, grant a pardon, upon such conditions, and with
such restrictions, and under such limitations, as he may think proper . . . .” Minn. Rev.
Stat. (Terr.) ch. 131, § 233 (1851); see also Organic Act of Minnesota § 2 (1849) (granting
the Governor of the Territory of Minnesota the power to “grant pardons for offenses against
the law of [the] Territory”).
The delegates to the 1857 constitutional convention understood that the pardon
power could be used to restore civil rights. For instance, during the convention, delegates
18
debated a constitutional provision that deprived a person who fought a duel with deadly
weapons from holding any office of profit or trust. Republican Debates at 109. David
Morgan objected and asserted:
A man may be guilty of manslaughter, or highway robbery, and be in State
prison as a punishment for the offense, yet if he is pardoned out one day
before the expiration of his sentence, he is restored to all his civil rights; but
a man who has been connected in any way with a duel, cannot, if this section
is adopted, be restored to his civil rights without a change of the Constitution.

Id. at 110. This discussion reflects a general understanding that the pardon power could be
used to restore civil rights, and that understanding is in tension with a conclusion that
voting rights were automatically restored upon release from incarceration.
The territorial statutory scheme—a provision t hat prohibited persons convicted of a
felony from voting “unless restored to civil rights” and a provision granting the Governor
the power to restore civil rights through the pardon power —carried over into the first set
of Minnesota state statutes enacted in 1858, which included legislation governing the
pardon power. Minn. Gen. Stat. ch. 117, § 233 (1858) (stating that “[i]n all cases in which
the governor is authorized to grant pardons, he may upon the petition of the person
convicted, grant a pardon, upon such conditions, and with such restrictions, and under such
limitations, as he may think proper”). Until 1867—9 years after the constitutional
provision was adopted —the Legislature enacted no other statutory provisions to restore
civil rights or voting rights to persons convicted of felonies. This indicates that the
constitutional delegates understood restoration of civil rights to include an affirmative act
by a public official, such as a pardon by the Governor .
19
Appellants also rely on an 1867 statute that automatically restored the civil rights of
some convicted felons following release from prison. See Act of Feb. 19, 1867, ch. 14,
§ 82, 1867 Minn. Laws 18, 19 (codified at Minn. Gen. Stat. ch. 120, § 85 (1878)). The
1867 statute provided that:
[I]f any convict shall so pass the whole term of his service, or the remainder
of his sentence after the passage of this act, (provided he shall have the term
of one year yet to serve,) [without any recorded prison rules infractions], he
shall be entitled to a certificate thereof from the warden, and, upon the
presentation thereof to the governor, he shall be entitled to a restoration of
the rights of citizenship, which may have been forfeited by his conviction.

Id. In other words, if a person completed his sentence and was released from incarceration
(returned to the community) and the person did not have any record of infractions of prison
rules, the person would be entitled to automatic restoration of his “rights of citizenship”
(including the right to vote). If the language “until restored to civil rights” means, as
appellants assert, that the right to vote is automatically restored when a person is released
and returned to the community without any additional affirmative act, then the 1867 statute,
which was enacted less than a decade after the constitution was adopted, makes no sense.
Stated another way, if civil rights were restored immediately upon release, there would be
no need for the warden to certify the lack of rules infractio ns or for the Governor to act to
restore the person being released to rights of citizenship. Because felons who received
disciplinary infractions remained ineligible to vote on release, the 1867 statute undermines
rather than supports appellants’ argument that the phrase “unless restored to civil rights”
means “unless released from incarceration.”
20
Later legislatures also understood that persons convicted of felonies were not
automatically restored to civil rights upon return to the community. While these later
enactments, further removed in time from the adoption of the constitution, may be less
persuasive, they nonetheless show a consistent understanding over time of the meaning of
the felon voting limitation in Article VII, Section 1. In 1887, the Legislature passed a law
establishing a reformatory in St. Cloud. Act of Mar. 2, 1887, ch. 208, 1887 Minn. Laws
329, 329–35. The law directed that courts sentencing a person convicted of a felony to the
reformatory impose “a general sentence to imprisonment” and that courts “shall not fix the
limit or duration [of the sentence].” Id. at § 11, 331. Section 16 of the law provided:
When it appears to [the reformatory’s board of] managers that there is a
strong or reasonable probability that any prisoner will li ve and remain at
liberty without violating the law, and that his release is not incompatible with
the welfare of society, [the board] shall issue to such prisoner an absolute
release from imprisonment, provided that the minimum term prescribed by
law has e xpired, and shall certify the fact of such release and the grounds
thereof to the governor. The governor may thereupon in his discretion restore
such person to citizenship.

Id. at § 16, 334. Once again, if the constitution means that civil rights are re stored
automatically upon a person’s release from incarceration and return to the community, then
there would be no reason to authorize the Governor to act to restore the person to
citizenship upon release, and there would be no basis to leave the question of restoring that
right to the Governor’s discretion. Put another way, if the constitution is read to mean
“[t]he following persons shall not be entitled or permitted to vote in any election in this
state: . . . a person who has been convicted of treason or felony, unless returned to the
21
community/unless released from prison,” then the Governor would have no constitutional
discretion to withhold civil rights from the person upon release from incarceration. 9
In 1907, the Legislature passed a law establishing a different judicial process for
restoring full rights and citizenship to all persons convicted of a felony and sentenced to
jail or to pay a fine who ha d completed their sentence. Act of Mar. 12, 1907, ch. 34, 1907
Minn. Laws 40, 40–41. The provision states:
All persons . . . who have heretofore been convicted of a felony and
sentenced by a court of this state to pay a fine for such offense or to be
confined in a county jail, for s uch offense, and who have paid and satisfied
such fine or served such sentence shall be restored to all their civil rights and
to full citizenship with full right to vote and hold office, the same as if such
conviction and sentence had not taken place, in the manner hereinafter
provided. Before such restoration to civil rights shall take effect such person
or persons shall at the end of one year from the date of the judgment thereof
or at any time thereafter first apply to the district court where such per son or
persons may reside and produce before such judge three
10 witnesses to testify
to his or her good character during the time since such conviction, and if said
judge shall be satisfied of such good character he shall issue an order

9 This same approach for restoring civil rights was adopted in 1911 when Minnesota
passed a general indeterminate sentencing law and created a parole board with authority to
determine when persons convicted of felonies shoul d be released on p arole or released
absolutely. Act of Apr. 20, 1911, ch. 298, 1911 Minn. Laws 412, 412–17. The law
provided that “[w]henever said [parole] board shall grant an absolute release it shall certify
the fact and the grounds therefore to the governor, who may in his discretion restore the
prisoner released to citizenship.” Id. at § 7, 415. Importantly, the statute authorized the
parole board to release a person into the community on parole, but the power to restore a
person to civil rights was limited to prisoners granted absolute release. Id. at, §§ 6–7, 414–
15.

10 The requirement that three witnes ses testify to good character was reduced to two
witnesses in 1913. Act of Apr. 7, 1913, ch. 187, § 1, 1913 Minn. Laws 238, 238.
22
restoring such party to all civil rights, which order shall be filed with the clerk
of said court; thereupon said restoration to civil rights shall take effect and
be in full force.

Id. at § 1, 40.
This 1907 provision tells us several things. First, like the statutes d iscussed above,
if the constitution means that civil rights are restored automatically upon a person’s release
from incarceration and return to the community, then there would be no reason for this law.
Second, the statute plainly contemplates that some i ndividuals living in the community
were not yet restored to civil rights. Under this provision, even if a person convicted of a
felony were never jailed or incarcerated but solely ordered to pay a fine, that person could
not seek to be restored to civil rights for at least 1 year. And third, the statute clarifies that
in 1907, the Legislature equated the restoration of civil rights with the right to vote and
hold office.
In 1919, the Legislature enacted a law providing for restoration of civil rights of
persons convicted of a felony and sentenced to the state reformatory or state prison. Act
of Apr. 17, 1919, ch. 290, 1919 Minn. Laws 299, 299–300. As with the provisions
discussed above, the statute left it to the Governor “in his discretion” to restore civil rights.
Id. at § 1, 299.
In summary, each of these legislative enactments require an affirmative act of the
Governor (or a judge in the case of persons convicted of a felony who are sentenced to pay
a fine or serve time in county jail) to restore the person’s civil rights upon completion of a
sentence and release from incarceration. In each case, the Governor or a judge has
discretion to refuse to restore civil rights to the person. If appellants are correct that the
23
constitution means that voting and other civil rights are automatically restored upon release
from prison, these statutes, which were passed over the course of several decades, make no
sense and are unconstitutional to the extent they leave restoration of civil rights to the
discretion of the Governor or a judge. Once again, all of these later legislative
understandings are not dispositive as to the meaning of Article VII, Section 1, of the
Minnesota Constitution when enacted. But they are more compelling clues than the
historical argu ments offered by appellants, which seem based on conjecture and
speculation alone.
C.
Appellants also offer another line of reasoning to support their position that the
passive language “restored to civil rights” means that those rights are restored when a
person convicted of a felony is not incarcerated. They argue that Article VII, Section 1,
does not envision that persons convicted of a felony be permanently barred from voting
because the constitutional language offers the possibility of restoration. From that
observation, appellants claim that release from incarceration is the time tha t possibilit y
becomes manifest, particularly because concepts like probation and conditional release did
not exist when the constitution was adopted. At that time, a person convicted of a felony
would go to prison, and a sentence was completed when the pe rson was released from
incarceration. Consequently, appellants argue, we should equate release from incarceration
with restoration of civil rights. We disagree.
First, as discussed above, appellants’ argument is inconsistent with the historical
record. I n 1858—just 1 year after the constitutional convention—persons convicted of a
24
felony were not automatically restored to civil rights upon release from prison; some act of
the Governor affirmatively restoring civil rights was required. See Minn. Gen. Stat .
ch. 117, § 233 (1858). And even in 1867, after the first restoration statute was enacted, it
only restored the right to vote upon release from prison to some, but not all, persons who
committed a felony. Act of Feb. 19, 1867, ch. 14, § 82, 1867 Minn. L aws 18, 19 (codified
at Minn. Gen. Stat. ch. 120, § 85 (1878)).
Second, the very fact that probation and conditional release did not exist in 1858
means that release from incarceration was the completion of a sentence. Accordingly,
even if we were to acc ept appellants’ argument that the constitutional possibility of
restoration means that restoration is constitutionally mandated, one way to interpret the
framers’ understanding of the phrase “unless restored to civil rights” is that restoration
occurs upon completion of the sentence. And that is precisely what section 609.165
provides: restoration upon completion of sentence.
Third and more fundamentally, while it is true under any reading that Article VII,
Section 1, of the Minnesota Constitution envisions that a person convicted of a felony could
be restored to the right to vote, the provision does not mean that a person convicted of a
felony must be restored to the right to vote. The constitution provides that a person
convicted of a felony “shall not be entitled or permitted to vote . . . unless restored to civil
rights;” it does not say “until restored to civil rights.” In other words, the fact that the
constitution states that restor ation of the right to vote to persons convicted of a felony is a
possibility does not mean that it is an obligation or mandate. Indeed, under Article VII,
Section 1, the Legislature could choose to never enact any statute restoring to a person
25
convicted of a felony the right to vote. Accordingly, the language of the constitution does
not support appellants’ interpretation that all persons convicted of a felony who are living
in the community are entitled and permitted to vote.
Appellants also assert that persons released from prison have broader rights than
persons in prison. Consequently, they argue, if a person is automatically restored to some
greater freedom that incarcerated persons do not have —automatically restored to some
civil rights like the right to m ove about the community, speak freely, and politically
associate—by virtue of release from imprisonment, then individuals released from prison
must be restored to all “civil rights,” including the right to vote.
Appellants’ argument proves too much. Even if we assume that the words “civil
rights” as used in Article VII, Section 1, were intended to broadly include any right that a
person has, it does not follow from the fact that some of those rights may be restored upon
release from incarceration that all civil rights must be restored. Different rights may be
restored at different times (and may be limited in different ways at different times). Indeed,
the premise of appellants’ argument is flawed because the constitutional rights of parolees
and probationers may be limited in ways that the rights of persons who have completed
their sentences may not be. 11

11 Federal courts have upheld numerous conditions impinging on a probationer’s
constitutional rights, including conditions that limit a probationer’s freedom of speech,
United States v. Turner , 44 F.3d 900, 903 (10th Cir. 1995) (restricting protest in front of
family planning facilities); freedom of association, United States v. Pabon, 819 F.3d 26,
30–33 (1st Cir. 2016) (restricting association with minors after sex crime); United States
v. Schiff, 876 F.2d 272, 276–77 (2d Cir. 1989) (restricting association w ith advocates of
tax evasion); United States v. Schave , 186 F.3d 839, 843–44 (7th Cir. 1999) (restricting

26
For the reasons stated above, we conclude that the rule under Article VII, Section 1,
of the Minnesota Constitution is as follows: a person convicted of a felony cannot vote in
Minnesota unless the person’s right to vote is restored by some affirmative act of, or
mechanism established by, the government. For instance, that affirmative act could be an
absolute pardon that nullifies the felony conviction upon which the constitutional
deprivation of the right to vote is based or a legislative act that generally restores the right
to vote upon the occurrence of certain events. The constitution does not provide that the
right to vote is automatically restored upon release from prison.
II.
With this background in mind, we turn to the appellants’ argument that the civil
rights restoration statute, Minn. Stat. § 609.165, subd. 1, violates their constitutional rights.
We first briefly discuss in this part the fundamental right to vote and then turn to the equal
protection principle in the Minnesota Constitution in part III. We review the question of
whether a statute is unconstitutional de novo. State v. Casillas , 952 N.W.2d 629, 635
(Minn. 2020).

association with white supremacists); see also James M. Binnall, Divided We Fall: Parole
Supervision Conditions Prohibiting “Inter-Offender” Associations, 22 U. Pa. J.L. & Soc.
Change 25, 41–43 (2019); freedom of religion, United States v. Ofchinick , 937 F.2d 892,
898 (3d Cir. 1991) (affirming a restitution payment plan despite hardship to pay monthly
church donation); and freedom from warrantl ess searches, United States v. Knights ,
534 U.S. 112, 122 (2001) (holding that a warrantless search, “supported by reasonable
suspicion and authorized by a condition of probation,” did not violate a probationer’s
Fourth Amendment rights). We do not mean t o forecast how we may address any specific
limitations on the rights of parolees or probationers in the future, but only observe that the
interests in deterrence and public protection may play out differently for persons on parole
or probation than for per sons who have completed their sentences. See United States v.
Crandon, 173 F.3d 122, 127–28 (3d Cir. 1999).
27
There is no doubt that the right to vote is fundamental. See, e.g., Erlandson v.
Kiffmeyer, 659 N.W.2d 724, 730 (Minn. 2003); Ulland v. Growe , 262 N.W.2d 412, 415
(Minn. 1978). That is one principle that every member of this court signs onto today.
But the people of Minnesota have the power to define in the constitution who can
and cannot vote—who has the right to vote. And in the Minnesota Constitution, the people
established who can participate in the civic life of this state through the power of the
franchise and restricted the right to vote in several ways: by age, by residence, by mental
competency, and by status as someone convicted of treason or felony. As long as those
limitations do not violate the United States Constitution (e.g., the Fifteenth, Nineteenth,
and Twenty-Sixth Amendments to the United States Constitution, which respectively
prohibit denying or abridging the r ight to vote on account of race, sex, or age for those
older than 18) or the Minnesota Constitution (e.g., art. 1, § 1, or the equal protection
principle set forth in the Minnesota Constitution) —and there is no allegation that
Article VII, Section 1’s limitations do—we do not understand how a statute denying
persons convicted of a felony the entitlement or permission to vote can violate the
fundamental right to vote.
Appellants do not contend that Article VII, Section 1, of the Minnesota Constitution
is itself unconstitutional. Accordingly, we conclude that section 609.165 does not deny
appellants’ fundamental right to vote.

28
III.
We turn, then, to the question of whether the mechanism chosen by the Legislature
to restore the civil rights of those otherwise constitutionally prohibited from voting due to
a felony conviction violates the equal protection principle in the Minnesota Constitution. 12
In answering this question, we first analyze in greater detail the statutory mechanism for
restoring voting rights in section 609.165, before then summarizing the equal protection
principle under the Minnesota Constitution. We then apply the equal protection analysis,
first addressing whether appellants have satisfied the threshold similarly situated test,
before then addressing which standard of review applies, and then, finally, applying it to
section 609.165.
The statutory mechanism for restoring voting rights (aside from a gubernatorial
pardon) is set forth in Minn. Stat. § 609.165, subd. 1. That section provides:
When a person has been deprived of civil rights by reason of conviction of a
crime and is thereafter discharged, such discharge shall restore the person to
all civil rights and to full citizenship, with full right to vote and hold office,
the same as if such conviction had not taken place, and the order of discharge
shall so provide.

Accordingly, the mechanism that the Legislature has chosen for restoring the right to vote
to persons convicted of a felony is “discharge” from the conviction. Minn. Stat. § 609.165,

12 In Kahn v. Griffin, 701 N.W.2d 815, 829 n.13 (Minn. 2005), a redistricting case, we
explained that Article I, Section 2, of the Minnesota Constit ution, which reads in relevant
part that “[n]o member of this state shall be disfranchised or deprived of any of the rights
or privileges secured to any citizen thereof, unless by the law of the land or the judgment
of his peers,” is similar to the E qual Protection Clause of Section 1 of the Fourteenth
Amendment. We further noted that Article VII, Section 1, of the Minnesota Constitution—
the constitutional provision at issue here—“establishes the criteria that citizens must fulfill
in order to be eligible to vote in Minnesota.” Id.
29
subd. 1. “Discharge” is defined in the statute. For those persons whose sentences for a
felony conviction were executed, discharge occurs upon “expiration of sentence .” Minn.
Stat. § 609.165, subd. 2(2). This means that the person has completed the sentence,
including any period of supervised release following release from prison. For persons who
received stays of imposition or execution of their sentence, discharge occurs upon “order
of the court following stay of sentence or stay of execution of sentence.” Minn. Stat.
§ 609.165, subd. 2(1).
By its plain terms and against the background of Article VII, Section 1, which
permanently prohibits a person convicted of a felony from voting in the absence of some
affirmative act of the gov ernment restoring the person’s right to vote, section 609.165
expands the voting rights of those convicted of a felony. Indeed, as enacted in 1963,
section 609.165 was the most expansive restoration of voting rights for persons who have
committed a felony that Minnesota had adopted up to its time.13

13 The 1963 version of section 609.165 was broader than the current version of the
statute. Compare Minn. Stat. § 609.165 (1965), with Minn. Stat. § 609.165 (2022). As
part of the same legislation that created section 609.165, the Legislature changed the
process for paroling or releasing persons committed to prison under indeterminate
sentences. Minn. Stat. § 609.12, subd. 1 (1965) . Among other things, the statute allowed
the adult corrections commission to fully release from sentence or to release on parole
persons convicted of a felony. Id. The adult corrections commission also had authority to
impose in its judgment conditions on paroled individuals with an eye to what “would be
most conducive to [the incarcerated person’s] rehabilitation and would be in the public
interest.” Id. In accordance with this authority, section 609.165 included in its definition
of discharge an “or der of the adult corrections commission . . . prior to expiration of
sentence.” Minn. Stat. § 609.165, subd. 2(2) (1965). Thus, under the 1963 version of the
civil rights restoration statute, the adult corrections commission could restore civil rights
to persons on parole but before expiration of their sentence. The Legislature repealed this
provision in the 1978 overhaul of the Minnesota sentencing statutes that eliminated

30
Immediately before the enactment of section 609.165 in 1963, restoration occurred
as follows: (1) the civil rights of a person convicted of a felony and sentenced to the state
reformatory or the state prison were restored only upon completion of a sentence 14 and
upon the act of the governor, who had full discretion to grant or deny the restoration of
civil rights, Minn. Stat. §§ 610.41–.43 (1961); (2) if a person convicted of a felony and
sentenced to prison completed his term of incarceration without violating prison rules, the
governor was required to restore his civil rights, Minn. Stat. § 243.18 (1961); and (3) the
district court restored the civil rights of a person convicted of a felony but sentenced only
to county jail or to pay a fine upon payment of the fine or completion of the jail term if the
court was satisfied of the person’s “good character.” Minn. Stat. §§ 610.45–46 (1961).

indeterminate sentencing, largely eliminated the power of the Department of Corre ctions
to parole and release prisoners, and created the Sentencing Guidelines Commission. Act
of Apr. 5, 1978, ch. 723, §§ 8, 9, 13, 15, 1978 Minn. Laws 761, 765–70.

14 In 1961, Minnesota continued the indeterminate sentencing system under which
judges would sentence offenders to an indefinite sentence up to a maximum length and the
adult corrections commission had authority to release the individual on parole or to final
discharge. Minn. Stat. §§ 243.01, 243.05 (1961). As part of the 1963 reforms, a new ,
albeit similar, system was put in place. The indeterminate sentencing system allowed
courts to sentence persons convicted of a felony (other than those sentenced to life in
prison) to a maximum sentence or indeterminate sentence in prison or to impose a fine
without imprisonment, but courts could not impose a minimum sentence in prison. Minn.
Stat. §§ 609.10–.11 (1965). Judges also had authority (except in cases where a life sentence
was mandatory) to stay imposition or execution of a sentence imposed on a person
convicted of a felony with the discretion to subject the person to supervision. Minn. Stat.
§ 609.135 (1965). The adult corrections commission retained the authority in its judgment
to parole or discharge most persons convicted of a felony and sentenced to prison. Minn.
Stat. § 609.12, subd. 1 (1965); see also Minn. Stat. § 243.05 (1965). The Adult Corrections
Commission’s exercise of judgment was focused on whether “parole or discharge would
be most conducive to [the incarcerated person’s] r ehabilitation and would be in the public
interest.” Minn. Stat. § 609.12, subd. 1 (1965). The adult corrections commission also had
authority to impose conditions on paroled individuals. Id.
31
These provisions were repealed in 1963 at the same time section 609.165 was
enacted. The purpose of the new law was summarized in an Advisory Committee
Comment:
It is believed that where a sentence has either been ser ved to completion or
where the defendant has been discharged after parole or probation his
rehabilitation will be promoted by removing the stigma and disqualification
to active community participation resulting from the denial of his civil rights.
The present practice it is understood is for the Governor to restore civil rights
almost automatically.

Minn. Stat. § 609.165 (Advisory Committee Comment 1963). The new law made
restoration of the right to vote automatic for all felons upon discharge, where previously,
such restoration required an affirmative act by the governor or a district court. Thus,
against the plain terms and background of both Article VII, Section 1, as well as the
predecessor restoration laws, se ction 609.165 expands the voting rights of those convicted
of a felony.
We understand the appellants’ and dissent’s perspective that because the Legislature
chose a method of restoring the right to vote to some persons convicted of a felony while
precluding other persons convicted of a felony from voting for a period of time (until
expiration of the sentence, rather than release from incarceration), section 609.165 in some
sense limits the right to vote. But Article VII, Section 1 of the Minnesota Constit ution
(which no party in this case contests is invalid), and not the statute, drives the deprivation
of the right of persons convicted of a felony. 15 The dissent’s framing of section 609.165

15 To frame this point in a different way: Imagine that Article VII, Section 1, did not
include a provision that disenfranchise d persons convicted of a felony. Imagine further

32
ignores the fact discussed more fully above that the Legislature could choose, in
accordance with Article VII, Section 1, to never enact a mechanism to restore the right to
vote to persons convicted of a felony. And, as discussed below, the appellants’ and
dissent’s position also disregards that the mechanism for rest oration of the vote that they
propose (restoration at release from incarceration) does not eliminate the disproportionate
adverse impact caused by the felon disenfranchisement enshrined in the constitution. For
instance, the appellants’ data suggests that continuing to prohibit persons who are
incarcerated from voting has a disproportionate racial impact.
In any event, as stated above, our difference with appellants and the dissent on this
point does not prevent us from engaging in an equal protection analysis. The equal
protection question is whether, in exercising its constitutional prerogative to restor e the
civil rights of persons convicted of a felony, the Legislature did so in a manner that is
consistent with the equal protection principle in the Minnesota Constitution. If the statute
is not consistent with that principle, the statute is constitutionally infirm. We now turn to
that analysis.
The equal protection principle does not forbid the Legislature from treating similarly
situated persons differently; it merely places limits on the circumstances and extent to

that the Legislature passed a statute that provided “a person who has been convicted of
treason or felony shall not be entitled or permitted to vote in any election in this state” or
“a person who has been convicted of treason or felony shall not be entitled or permitted to
vote in any election in this state until discharged.” In that circumstance, we would be
facing an entirely diff erent case. The statute would be the direct cause of the
disproportionate adverse impact on the voting rights of Black and Native American
Minnesotans caused by tying voting rights to an individual’s status as a person convicted
of a felony.
33
which the Legislature can do so. F letcher Props. Inc. v. City of Minneapolis, 947 N.W.2d
1, 20 (Minn. 2020). And the limits on the Legislature’s power turn on the level of scrutiny
we apply in reviewing the statute.
Generally, if a statutory classification on its face “impacts fundamental rights or
creates a suspect class, the scope of action of the legislative body is significantly
constrained and its decision is subject to less deference and heightened scrutiny by the
courts.” Id. (citing In re Welfare of Child of R.D.L., 853 N.W.2d 127, 133 (Minn. 2014)
(stating the test for strict scrutiny), and State ex rel. Forslund v. Bronson, 305 N.W.2d 748,
750 (Minn. 1981) (applying intermediate scrutiny to gender -based classifications)).
If a law does not impact a fundamental right or a suspect class, the law is generally
subject to rational basis review. We have stated:
[A] law subject to rational basis review does not violate the equal protection
principle of the Minnesota Constitution when it is a rational means of
achieving a legislative bod y’s legitimate policy goal. . . . [and], in the
absence of overwhelming evidence to the contrary, we will not second-guess
the accuracy of a legislative determination of facts.

Fletcher Props., 947 N.W.2d at 19.
Finally, under the equal protection principle in the Minnesota Constitution, even if
the lawmakers’ purpose in enacting a law was not to affect any suspect class differently,
“we hold lawmakers to a higher standard of evidence when a statutory classification
demonstrably and adversely affects one r ace differently than other races.” Id. In those
circumstances, we apply a so-called heightened (also known as active) rational basis review
test and “require actual (and not just conceivable or theoretical) proof that a statutory
classification serves the legislative purpose.” Id.
34
In applying these principles here, we address three issues. First, we address the
threshold issue of whether appellants are similarly situated to persons convicted of a felony
whose rights have been restored. We conclude appellants cleared the threshold inquiry
because they are similarly situated to persons convicted of a felony who have had their
right to vote restored. Accordingly, our analysis moves on to the next step in the equal
protection analysis: What standard of review applies? We conclude that strict scrutiny
does not apply. We also conclude that appellants have not provided suf ficient evidence
that we should apply heightened rational basis review. Finally, we conclude that
section 609.165 survives traditional rational basis review.16
A.
We typically start our equal protection analysis by assessing whether “the claimant
is similarly situated in all relevant respects to others whom the claimant contends are being
treated differently.” State v. Lee , 976 N.W.2d 120, 125–26 (Minn. 2022). The dissent
argues that under State v. Frazier, 649 N.W.2d 828 (Minn. 2002), the threshold sim ilarly
situated inquiry does not apply in heightened rational basis scrutiny cases. We need not

16 The concurrence and dissent both suggest that our analysis reaches issues not raised
by the parties. We disagree. The parties specifically debate the threshold similarly situated
issue in their briefs, and the district court and court of appeals directly addressed the issue.
It is an essential part of the equal protection analysis. And as part of our analysis in
concluding that appellants cleared the threshold inquiry, we explain why the Secretary of
State’s position on that issue is not in accordance with our wel l-established precedent on
the subject. Our analysis then moves on to the question of what standard of review applies,
and then applies section 609.165 against the standard of review . At each step, we explain
our rationale for why we reach our conclusion as one would expect. It is unclear to us
which of these steps the concurrence and dissent would have us skip over. Indeed, the
dissent also criticizes us for not reaching enough issues.
35
resolve that issue here because we conclude that appellants satisfy the threshold similarly
situated test. We also address the threshold similarly situated analysis because appellants
assert that section 609.165 violates the equal protection principle under the strict scrutiny
and rational basis tests.
To determine whether appellants are similarly situated in all relevant respects to
others whom the claimant co ntends are being treated differently, we must assess “whether
the law creates distinct classes within a broader group of similarly situated persons or
whether those treated differently by the law are sufficiently dissimilar from others such
that the law do es not create different classes within a group of similarly situated persons.”
Lee, 976 N.W.2d at 126 (quoting Fletcher Props., 947 N.W.2d at 22) (internal quotation
marks omitted).
With this background in mind, we turn to the statutory language and its broad
purposes. Section 609.165, subdivision 1, concerns the restoration of voting rights to the
group of persons who have been deprived of their voting rights by reason of a felony
conviction. Minn. Stat. § 609.165, subd. 1. The statute itself tells us what it is about and
what is relevant: What are the circumstances under which persons who lost the entitlement
and permission to vote under Article VII, Section 1, because they were convicted of a
felony, will have their civil rights restored?
The statute also answers that question: the only persons who have been convicted
of a felony who may vote are those persons who have been discharged —those who have
completed their sentences or who have been discharged by order of the court following
stay of sentence o r stay of execution of sentence. See Minn. Stat. § 609.165, subd. 2
36
(defining discharge). Of course, under the statute, the voting rights of those persons who
have not been discharged are not restored. It is that distinction that is challenged under the
equal protection principle of the Minnesota Constitution.
Thus, the broader group regulated by the statute are persons who in accordance with
Article VII, Section 1, lost their right to vote because they were convicted of a felony. See
Fletcher Props., 947 N.W.2d at 27–28 (concluding that, in an equal protection challenge
to a Minneapolis ordinance that regulated the circumstances under which a residential
landlord could refuse to rent because of housing voucher requirements, the relevant group
for the threshold similarly situated comparison was residential landlords); State v.
Holloway, 916 N.W.2d 338, 347–48 (Minn. 2018) (concluding that, in a statute that made
a mistake-of-age defense available to defendants who were 10 or fewer years older than
the minor victim of sexual assault but not available to a defendant who was more than
10 years older than the minor victim of sexual assault, the relevant group was persons
charged with sexual contact with a minor because the statute focused on criminalizing such
conduct).
For this reason, the appropriate broader group for the equal protection threshold
analysis is not all Minnesotans of voting age who are generally qualified to vote —those
18 years and older who are citizens of the United States and have lived in Minnesota for a
sufficient amount of time —regardless of whether they have been convicted of a felony.
Here, for voting el igibility purposes, the Minnesota Constitution treats persons who have
been convicted of a felony differently than those who have not been convicted of a felony,
and appellants are not challenging the legitimacy of that provision.
37
We disagree with the similarly situated analysis of the court of appeals. The court
of appeals accepted the Secretary of State’s argument that persons who have been
discharged from their sentence are not similarly situated to persons like appellants who are
not incarcerated but rather living in the community on supervised release, parole, or
probation. Schroeder v. Simon, 962 N.W.2d at 483. The court of appeals reasoned that
persons who have been convicted of a felony and not yet discharged from the conviction
are subject to greater restrictions on their liberty —conditions of release, the possibility of
being reincarcerated—than individuals who have been convicted of a felony and have had
their sentence discharged. Id. In so doing, the court of appeals fell into the trap we rejected
most recently in State v. Lee, 976 N.W.2d 120 (Minn. 2022).
Lee concerned Minn. Stat. § 609.2231 (2022), which criminalized a ssaults on
treatment facility employees. The statute imposed a mandatory 5-year conditional release
period on sexually dangerous persons (SDP) convicted of assaulting a treatment facility
employee, but imposed no conditional release period on persons comm itted as mentally ill
and dangerous (MID) who assaulted a treatment facility employee. Id. at 125. Because
the statute was about persons who committed assaults on treatment officers, we concluded
that the relevant focus of the similarly situated analysis was on the conduct of committing
assaults. Id. at 126–27. And in that “relevant respect,” SDP and MID patients were
similarly situated. Id. We rejected the State’s argument that a “broader relevance inquiry”
applied. Id. at 127–28. The State urged us to consider factors, like the different reasons
that the two groups are committed, the different commitment procedures in place for the
two groups, and that patients committed as SDP and patients committed as MID may reside
38
in different institutions subject to different programming. Id. We determined that those
distinctions were simply not relevant to the challenged government action—imposing
punishment on patients who commit assaults on treatment staff. Id. at 127 (noting that “the
fact that the Legislature created two different statutory classifications does not determine
whether the classifications pass constitutional equal protection muster”). The only relevant
question was whether the conduct that led to differential treatment was the same.
So too here. While it is true that persons who have not been discharged may be
subject to greater restrictions on liberty than those who have been d ischarged, those
differences are not at issue here. The fact that persons in a broader group may be treated
or classified differently for one purpose (e.g., persons convicted of a felony on conditional
release or probation may be subject t o greater restrictions and may face revocation of the
release or probation while those convicted of a felony who have completed their sentence
may not) does not mean that persons in the same broader group may be treated differently
for the relevant purpose being challenge d (here, restoration of voting rights). The whole
point of the equal protection inquiry is to determine if the challenged classification or
difference in treatment is justified. We cannot avoid that inquiry by simply saying, “Well,
we treat these similarly situated persons differently for one purpose so we can treat them
differently for another purpose.” Once again, the conduct that leads to differential
treatment under section 609.165 is being convicted of a felony.
We are not saying tha t greater limita tions on liberty—conditions of release that
restrict some constitutional rights or the possibility of being reincarcerated —are
completely irrelevant to the equal protection inquiry beyond the threshold step. Indeed,
39
those limitations may be quite relevant to the core equal protection inquiry of whether the
classification is justified—for instance, if a traditional rational basis test applies, whether
the Legislature’s choice in section 609.165 of discharge as the operative event for restoring
civil rights, including the right to vote to persons convicted of a felony, is a rational means
of achieving a legitimate policy goal. The lesson of Lee, Fletcher, and Holloway is that
we must not conflate those two inquiries. 17
Accordingly, when considering section 609.165, the threshold question of whether
the individuals treated differently are similarly situated is whether persons in both
classifications created by the statute (those discharged and those not discharged) engaged
in the same cond uct (here, conviction for a felony with the consequence of lost voting
rights) that is the subject of the law (restoring the right to vote to those persons who have
been convicted of a felony). The answer to that question is yes. There is no question tha t
the appellants, who fall within the category of persons who have not been discharged, are
similarly situated with the other category of persons, those who have been discharged, in
the relevant respect: persons in both categories have been convicted of a felony and lost
their right to vote. Accordingly, we cannot avoid conducting the distinct, substantive equal

17 Notably, according to the Secretary of State , the Legislature’s only purposes in
enacting section 609.165 w ere to remove the stigma of a felony conviction and promote
rehabilitation. The Secretary of State did not point to administrative concerns as
justifications for the statute. We express no opinion on whether, how , or at what point in
the period of time between felony conviction and being discharged as defined under current
law such reasons would serve to justify any potential disparate racial effects in some future
case.
40
protection analysis of appellants’ claims on the ground that section 609.165 does not make
a distinction among members of the same broader group.
B.
Having concluded that appellants are similarly situated to those persons whose
felony conviction has been discharged, we turn to the next step in the equal protection
analysis: What standard of scrutiny should we apply? Beca use we have concluded that
section 609.165 does not implicate the fundamental right to vote, strict scrutiny does not
apply. See Ul land, 262 N.W.2d at 415 (“Should we decide that the statute constitutes a
sufficiently direct infringement on fundamental franchise rights, the ‘strict scr utiny’ test
must be employed,” otherwise, “ ‘rational basis’ scrutiny is appropriate.”). No one argues
that intermediate scrutiny applies. Thus, the question becomes whether heightened rational
basis review applies or whether we should assess the constit utionality of section 609.165
under the traditional rational basis standard.
Once again, we apply the more rigorous heightened rational basis standard when the
“statutory classification demonstrably and adversely affects one race differently than other
races.” Fletcher Props. , 947 N.W.2d at 19; see State v. Russell , 477 N.W.2d 886, 889
(Minn. 1991). Accordingly, the first question we must answer is whether section 609.165,
in which the Legislature chose to use “discharge”—essentially, completion of the person’s
41
sentence—as the triggering event for restoration of civil rights, demonstrably and adversely
affects Black and Native American Minnesotans convicted of a felony. 18
Appellants’ claim starts with the fact that a disproportionately higher percentage of
Black and Native American Minnesotans are deprived of the right to vote due to a felony
conviction than white Minnesotans; a premise that is undoubtedly correct. But that fact
alone does not answer the question of whether heightened rational basis revi ew applies
here. Appellants must also demonstrate that section 609.165 is what caused those
disproportionate effects . See Fletcher Properties , 947 N.W.2d at 24 (explaining that
heightened rational basis review was applied in Russell because “[t]he
record . . . demonstrated that ‘the law ha[d] a discriminatory impact on black persons ’ ”
(quoting Russell, 477 N.W.2d at 887)).
In assessing whether we s hould apply heightened rational basis scrutiny to this
claim, appellants correctly observe that the criminal system disproportionately affects
Black and Native American Minnesotans. The simple fact that Minnesota denies the right
to vote to persons who have been convicted of a felony has disproportionate racial impacts.
That is a deeply disturbing reality in Minnesota. But it cannot (and does not) form the basis
for appellants’ argument that section 609.165 runs afoul of the equal protection principle

18 This case does not present the fundamentally different question of whether disparate
sentence lengths that may vary due to race violate the equal protection principle. Many
individualized considerations underlie the reasons for different average sentence lengths.
The question here is whether the Legislature’s choice to use discharge —completion of a
sentence—for the entirely independent purpose of restoring voting and other civil rights
(rather than punishing a person for the commission of a specific crime) violates the equal
protection principle. Of course, we leave other questions for a different case.
42
in the Minnesota Constitution. The choice to deny the right to vote to persons who have
been convicted of a felony, with its attendant disproportionate racial impacts, is set forth
in Article VII, Section 1. The appellants do not challenge this constitutional choice.
Section 609.165 restores the right to vote to Minnesotans convicted of a felony once
they have been discharged from their sentence. Thus, the question we must answer is
whether the decision to restore the right to vote to persons upon dischar ge demonstrably
and adversely affects one race differently from other races. It is beyond dispute that
section 609.165 reduces the raw numbers and percentages of persons previously convicted
of a felony who are deprived of the right to vote. In other wor ds, more people can vote
because of section 609.165.19
Appellants allege that section 609.165 nonetheless violates equal protection. To
support their argument, appellants present statistics comparing the difference between two
groups: (1) the percentage of white, Black and Native American Minnesotans of voting age
who are disenfranchised under section 609.165 because they have not been discharged ,
(2) and the percentage of white, Black and Native American Minnesotans of voting age
who would be disenfranchised had the Legislature chosen instead to restore voting rights
at a different moment —upon release or excuse from incarceration before discharge. By
definition, the first group does not include those persons who had been deprived of the
right to vote due to a felony conviction but who have been restored to the right to vote

19 Although we do not reach the core equal protection inquiry under heightened
rational basis review of whether the law serves the purpose to be achieved at the appropriate
level of fit, we observe that restoring the vote to persons convicted of a felony and who
have been discharged does in fact serve a rehabilitative purpose for discharged persons.
43
because their sentence has been discharged. Accordingly, absent from the analysis are
statistics showing the percentage of white, Black, and Native American Minnesotans of
voting age disenfranchised by Article VII, Section 1, itself—disenfranchised based on a
felony conviction alone before discharge . Ultimately, there is no informatio n about the
percentage of white, Black and Native American Minnesotans of voting age who were at
one point deprived of their right to vote under the constitution because of a felony
conviction nor any information about the comparative reduction in the per centage of the
white, Black and Native American Minnesotans of voting age who cannot vote caused by
section 609.165. Thus, we have no definitive evidence before us that restoring the right to
vote upon discharge itse lf, as section 609.165 does, demonstrably and adversely affects
Black and Native American Minnesotans compared to the status quo under Article VII,
Section 1.20
Accordingly, appellants’ evidence only tells us that had the Legislature chosen a
different mechanism under Article VII, Section 1, f or restoring the right to vote to those

20 For the same reason, we do not know how setting the mechanism for vote restoration
at release or excuse from incarceration would compare to the status quo under Article VII,
Section 1. This case is unique because the constitutional background rule set forth in
Article VII, Section 1, results in a constitutionally imposed racial disparity (wh ich is
unchallenged in this case) . Because appellants’ evidence is insufficient to support their
claim that it is section 609.165 itself that “demonstrably and adversely affects one race
differently than other races,” see Fletcher Props., 947 N.W.2d at 19, we do not address the
question of whether the heightened rational basis test applies to a remedial statute that
generally expands rights or benefits in the same way it applies to other statutes, like the
criminal statute at issue in Russell, 477 N.W.2d at 889. In Russell, we knew that in the
statute imposing punishment for sale of cocaine, Black Minnesotans were far more likely
to engage in the sale of a form of cocaine that resulted in a harsher punishment, and white
Minnesotans were far more likely to engage in the sale of the same amount of a different
form of cocaine that resulted in a lesser punishment. Id.
44
persons deprived of that right due to a felony conviction (release or excuse from
incarceration) rather than the mechanism the Legislature actually chose in section 609.165
(discharge), the disproportion between the percentage of Black and Native American
Minnesotans denied the right to vote due to a felony conviction, and the percentage of
white Minnesotans denied the right to vote due to a felony conviction would be different.21
In other words, the record does not include sufficient evidence to allow us to answer the
necessary question of whether section 609.165 (or for that matter appellants’ alternative

21 Appellants’ data show that the percentage of white, Black and Native American
Minnesotans of voting age who are disenfranchised because they committed a felony and
have not been discharged is roughly 1 percent, 6 percent and 9 percent respectively. The
data also shows that those disenfranchisement percentages would drop to roughly
0.1 percent for white Minnesotans, 1.5 percent for Black Minnesotans, and 2 percent for
Native American Minnesotans if the right to vote were restored not upon discharge but
rather when a person is released or excused from incarceration and allowed to live in the
community. See Felon Disenfranchisement in Minnesota at 2. As noted by the court of
appeals, appellants’ data (depending on the proper standard of measurement) may show
that, if persons convicted of a felony were prohibited from voting only while incarcerat ed,
racial disparities would increase, not decrease, in comparison with the current rule under
section 609.165 that persons convicted of a felony can vote only upon discharge. See
Schroeder, 962 N.W.2d at 476 n.1. Based on our resolution of this case, however, we do
not need to reach this issue.
Further, the mechanism chosen by appellants for restoration of the right to vote itself
does not eliminate the disproportionate adverse effect on Black a nd Native American
Minnesotans of denying the right to vote to persons convicted of a felony. Appellants’
position to choose release from incarceration as the mechanism to restore voting rights
may have a demonstrable and advers e effect on Black Minnesotans relative to another
choice that the Legislature could ha ve made consistent with Article VII, Section 1: to
restore voting rights to all Minnesotans immediately following their felony conviction, thus
allowing incarcerated Minnesotans to vote. Moreover, there is nothing in the record to
inform us whether allowi ng incarcerate d persons the right to vote would serve a
rehabilitative purpose or whether other justifications may support denying the right to
vote to incarcerated persons . Of course, because appellants do not challenge the
disenfranchisement of persons who remain incarcerated due to a felony conviction, we
express no opinion about whether and under what circumstances such disenfranchisement
may violate the equal protection principle in the Minnesota Constitution.
45
restoration mechanism) demonstrably and adversely affects Black and Native American
Minnesotans compared to the status quo established by the constitution itself in Article VII,
Section 1.22 Accordingly, because the burden of proving an adverse racial effect rests on
appellants, we cannot conclude on this r ecord that heightened rational basis revie w is
warranted. See Frazier, 649 N.W.2d at 836 (dismissing an equal protection claim where
the plaintiff did not carry his burden of showing a demonstrable and adverse effect based
on race).
C.
We thus turn to the rational basis standard. B oth appellants and the Secretary of
State agree that the Legislature’s only policy goals in enacting section 609.165 were to
foster rehabilitation and remove stigma. Section 609.165 satisfies the rational basis

22 The court of appeals concluded that the statutory mechanism in section 609.165 on
its face does not apply differently based on race precisely because discharge itself
eventually restores voting rights automatically to all people with felony convictions,
regardless of race. Schroeder, 962 N.W.2d at 485. The district court also used this
reasoning to reject the application of heightened rational basis review, stating that “[a]s an
automatic process, the re -enfranchisement under Minn. Stat. § 609.165 affects all persons
convicted of felonies equally, restoring their civil rights at the end of their felony sentence.”
The Secretary of State urges us to adopt that logic.
Due to the way we resolve this case, we do not need to resolve the issue. We merely
observe that we are not convinced that the question is so simple. At a high level, there is
something appealing about the analysis of the court of appeals and the district court. It is
certainly true that the ultimate act of discharge does not turn on race. All persons convicted
of a felony (aside from the small group of persons convicted of life in prison or whose term
sentences are so long that they will never be released from incarceration) ultimately will
be discharged regardless of race. On the other hand, using discharge as the mechanism for
restoring the right to vote may deprive Black and Native American Minnesotans of the
right to vote for a longer time compared to other Minnesotans, especially if all periods of
disenfranchisement—probation, parole, conditional release , and incarceration — are
considered.
46
standard if it is one rational means (not the only means or best means) of achieving a
legislative body’s legitimate policy goals. See Fletcher Props. , 947 N.W.2d at 27–29.
Moreover, the fact that the purpose of removing stigma and promoting rehabilitation might
equally or similarly apply to persons convicted of a felony who are living in the community
but have not been discharged is not of constitutional concern when analyzing a law under
the traditional rational basis standard: “[W]e will not interfere with a law solely on the
ground that it does not completely ameliorate a perceived evil.” Id. at 27, n.19. Restoring
the vote of those discharged of their crime is one rational way, albeit perhaps an incomplete
way, to accomplish the Legislature’s rehabilitation and removal-of-stigma purpose. 23 The
statute survives rational basis review.
* * *
In conclusion, Article VII, Section 1, of the Minnesota Constitution permanently
removes the entitlement and permission to vote when a person has been convicted of a
felony. The basic rule under the constitution is that a person convicted of a felony cannot
vote in Minnesota unless the person’s right to vote is restored by some affirmative act of
the government restoring the person’s right to vote. That affirmative act could take

23 Under rational basis review, we are not limited to considering the purposes of the
law expressly articulated by the Legislature when it enacted the statute . Here, one could
imagine other potentially legitimate purposes for section 609.165: the challenge of what to
do when a person on conditional release or probation has that status revoked and is
incarcerated as a result; or the administrative challenges facing prison officials in allowing
incarcerated persons to vote in that setting. The Secretary of State, however, has not
asserted that any of those other unstated purposes justify the Legislature’s decision to
restore civil rights upon discharge. In any event, becaus e we conclude that the statute
satisfies the ratio nal basis test regardless, we need not consider those other unstated
purposes.
47
different forms, including an absolute pardon that nullifies the felony conviction upon
which the constitutional d eprivation of the right to vote is based, an express order by the
Governor or some other public official restoring the right to vote short of a pardon, or a
legislative act that generally restores the right to vote upon the occurrence of certain events.
Article VII, Section 1, does not provide that the right to vote is automatically restored upon
release or excuse from incarceration. It is essential to our conclusion that appellants do not
claim that the limitation on the voting rights of persons convicte d of a felony is itself
unconstitutional because it conflicts with other provisions of the Minnesota Constitution.
Under Article VII, Section 1, the Legislature has broad, general discretion to choose
a mechanism for restoring the entitlement and permissio n to vote to persons convicted of
a felony, including the discretion to refuse to restore the right to vote at all. But that
discretion is not unbounded. Among other things, a statute that restores the right to vote
must comply with all provisions of the United States and Minnesota Constitutions. The
mechanism that the Legislature has chosen for restoring the right to vote to persons
convicted of a felony is “discharge” from the conviction. Minn. Stat. § 609.165, subd. 1.
Section 609.165 does not deny a ppellants’ fundamental right to vote because
Minnesotans can define in their constitution who may vote and who may not vote, subject
to the constraints of the United States Constitution and perhaps other provisions of the
Minnesota Constitution. Minnesota ns decided in Article VII, Section 1, that persons who
have committed a felony may not vote, subject to being restored to that right by the
Governor through the pardon process or by a different process approved by the Legislature.
Appellants do not contend that Article VII, Section 1, is itself unconstitutional.
48
With these underlying principles in mind, on the record in this case, appellants have
not proven that section 609.165 violates the equal protection principle of the Minnesota
Constitution. Appellants do, however, satisfy the threshold similarly situated inquiry.
Persons in appellants’ position—those persons who have been convicted of a felony, are
living in the community, and have not yet completed their sentence or satisfied the
conditions of their stay of sentence—are similarly situated to those persons who have been
convicted of a felony and have completed their senten ce or satisfied the conditions of their
stay of sentence. On this threshold question, we disagree with the district court and the
court of appeals. The question of whether section 609.165 violates the equal protection
principle cannot be dismissed at the threshold inquiry stage.
The next question is then what standard of scrutiny applies to the equal protection
analysis. Strict scrutiny does not apply. And because of the way the parties argued the
case, the record is insufficient to allow us to determine whether heightened rational basis
review applies. We also, of course, express no opinion on whether section 609.165 would
be subject to and survive heightened rational basis scrutiny if evidence were submitted. 24
We thus analyze section 609.165 under traditional rational basis review, which it survives.

24 Given our determination that appellants have not demonstrated that section 609.165
violates the equal protection principle of the Minnesota Constitution, we need not consider
what remedy would have applied had we arrived at a different conclusion. We observe,
however, that a n effective judicial remedy may not have been possible. Under our
jurisprudence, w hen an unconstitutional part of a statute cannot be severed, we must
completely invalidate the statute. In the Matter of A.J.B ., 929 N.W.2d 840, 848
(Minn. 2019); see Minn. Stat. § 645.20 (2022); Back v. State , 902 N.W.2d 23, 33
(Minn. 2017) (invalidating the statute when severance was not possible with the
consequence that we proceed as if the statute had never been enacted at all). If that course

49
At the same time, although section 609.165, on the claim raised here, passes
constitutional muster, we recognize the troubling consequences, including the disparate
racial impacts, flowing from the disenfranchisement of persons convicted of a felony. The
Legislature retains the power to respond to those consequences. The Minnesota
Constitution empowers the Legislature to address the public policy concerns raised by
appellants in this case; pu blic policy concerns that the Secretary of State shares and that
directly implicate—even if section 609.165 does not violate —the fundamental right to
vote. We should all take care that persons not be deprived of the ability to participate in
the political process out of fear of our fellow citizens .
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals .
Affirmed.

had been deemed appropriate here, the result would have been to completely invalidate
section 609.165, subdivision 1, with the result that no statutory mechanism would exist to
automatically restore the right to vote to persons who have been convicted of a felony. An
individual pardon would then be the sole path to restoration of civil rights until the
Legislature adopted a different, constitutional mechanism.
C-1
C O N C U R R E N C E
ANDERSON, Justice (concurring).
At the outset, it is important to reaffirm the court’s responsibility to fiercely protect
the fundamental right to vote enshrined in Article VII of the Minnesota Constitution and
to serve as the final protector of equality and fairness as provided by the constitution. If
Article VII enshrined a universal right to vote without exception and the Legislature had
enacted a statute that denied that universal right to convicted felons, this would be a very
different dispute.
But this is not that ca se. This appeal requires us to interpret the language of
Article VII, Section 1, of the Minnesota Constitution, which denies the fundamental right
to vote to “a person who has been convicted of treason or felony, unless restored to civil
rights . . . .” We must then decide whether the Legislature violated the fundamental right
to vote or the guarantee of equal protection embedded in the Minnesota Constitution when
it enacted Minn. Stat. § 609.165 (2022), which automatically restores the civil rights of
convicted felons, including the right to vote, upon discharge of the felony sentence.
Like the court, I conclude that the clause “unless restored to civil rights” in
Article VII, Section 1, cannot be reasonably interpreted to mean “unless released or
excused from incarceration.” Moreover, because section 609.165 does not limit or
withhold the restoration of civil rights, but instead the statute automatically restores the
civil rights of convicted felons, including their right to vote, I conclude that the Legislature
did not violate Article VII, Section 1, when it enacted section 609.165.
C-2
That said, I cannot join the court’s equal protection analysis regarding the
heightened rational basis standard because it relies on an argument that was not raised by
the pa rties to find the threshold similarly situated requirement to the equal protection
analysis satisfied. But because I agree that appellants’ arguments based on a comparison
of the voting eligibility of all Minnesotans of voting age and those Minnesotans who have
committed a felony are irrelevant to the similarly situated analysis,1 I concur in the result
reached by the court on the equal protection issue.
“In our adversary system, in both civil and criminal cases, in the first instance and
on appeal, we follow the principle of party presentation.” Greenlaw v. United States ,
554 U.S. 237, 243 (2008). Under the principle of party presentation, “we rely on the parties
to frame the issues for decision and assign to courts the role of neutral arbiter of matter s
the parties present.” Id. The principle of party presentation is more than a prudential rule
of convenience. As the United States Supreme Court observed in NASA v. Nelson, “[t]he
premise of our adversarial system is that appellate courts do not sit as self-directed boards
of legal inquiry and research, but essentially as arbiters of legal questions presented and
argued by the parties before them.” 562 U.S. 134, 147 n.10 (2011) (citation omitted)
(internal quotation marks omitted).

1 I also agree with the court that the statistical data presented by appellants fails to
show that section 609.165 creates a racial classification in practice that triggers our
“heightened” rational basis standard, and that section 609.165 survives our “traditional”
rational basis standard. Supra at 41–46.
C-3
We recently applied the principle of party presentation in Leuthard v. Indep. Sch.
Dist. 912 – Milaca , 958 N.W.2d 640 (Minn. 2021).2 In Leuthard, the Workers’
Compensation Court of Appeals (WCCA) vacated a compensation judge’s decision based
on the rare case exception, whic h was not asserted in the notice of appeal. Id. at 650.
Applying the principle of party presentation, we reversed the decision of the WCCA,
explaining that the WCCA had erred as a matter of law when it vacated the compensation
judge’s decision based on the rare case exception. Id.
I acknowledge that appellate courts have a responsibility “to decide cases in
accordance with law, and that responsibility is not to be diluted by counsel’s oversights,
lack of research, failure to specify issues or to cite rel evant authorities.” State v.
Hannuksela, 452 N.W.2d 668, 673 n.7 (Minn. 1990) (citation omitted) (internal quotation
marks omitted). But that responsibility is limited to well- established law and does not
allow courts to create new law. Id. (explaining that we could consider the unraised issue
because it was neither novel nor questionable).
The principal equal protection argument advanced by appellants is that Minn. Stat.
§ 609.165 is unconstitutional under the “heightened” rational basis standard articulated in
State v. Russell, 477 N.W.2d 886, 889 (Minn. 1991). We apply the Russell “heightened”

2 The principle of party presentation has also been discussed by members of the court
in separate writings. See, e.g., State v. Berry, 959 N.W.2d 184, 194 (Minn. 2021) (Moore,
III, J., dissenting) (arguing the court violated the principle of party presentation discussed
in Greenlaw when it sua sponte reviewed a finding for clear error); Heilman v. Courtney ,
926 N.W.2d 387, 398–400 (Minn. 2019) (Hudson, J., concurring) (explaining that in our
adversary system, we follow the principle of party presentation); Ries v. State, 920 N.W.2d
620, 641 (Minn. 2018) (Hudson, J., concurring in part and dissenting in part) (explaining
that the principle of party presentation “is more than a prudential r ule of convenience”).
C-4
rational basis standard “when a statutory classification demonstrably and adversely affects
one race differently than other races, even if the lawmakers’ purpos e in enacting the law
was not to affect any race differently.” 3 Fletcher Props., Inc. v. City of Minneapolis ,
947 N.W.2d 1, 19 (Minn. 2020). We have referred to this type of classification as “a
race-based classification in practice.” State v. Frazier, 649 N.W.2d 828, 836 (Minn. 2002).
Under the heightened rational basis standard, “we require actual (and not just conceivable
or theoretical) proof that a statutory classification serves the legislative purpose.” Fletcher
Props., 947 N.W.2d at 19.
But whether under heightened or traditional rational basis review, the starting point
of each formulation is to discern whether the law being challenged “creates distinct classes
within a broader group of similarly situated persons.” Fletcher Props. , 947 N.W.2d at 22.
Stated another way, before we turn to any other questions, appellants must prove that the
automatic restoration statute, Minn. Stat. § 609.165, subd. 1, leads to different outcomes
between persons who are similarly situated “in all relevant respec ts.” State v. Johnson,
813 N.W.2d 1, 12 (Minn. 2012).
Appellants limit their argument on this threshold issue to the assertion that they are
similarly situated in all relevant respects to Minnesotans of voting age that are eligible to

3 Appellants do not allege, or point to any evidence suggesting, that the Legislature
passed Minn. Stat. § 609.165 with a discriminatory intent. I acknowledge that when the
record indicates a legislature has enacted a felon disenfran chisement system with an
expressly discriminatory purpose, courts have struck down the system. See Hunter v.
Underwood, 471 U.S. 222, 228–233 (1985) . But because appellants have presented no
evidence that Minn. Const. art. VII or Minn. Stat. § 609.165 was adopted with an expressly
discriminatory purpose, the facts of appellants’ case are materially distinguishable from
the facts of Underwood.
C-5
vote and that Minn. Stat. § 609.165 creates a racial classification in practice based on
statistical data that shows that, in denying convicted felons the fundamental right to vote,
Article VII, Section 1, of the Minnesota Constitution impacts a disproportionate number of
nonwhite Minnesotans. 4 More specifically, appellants’ statistical data shows that as of
2018, Minn. Const. art. VII, § 1, denied the fundamental right to vote to less than 1 percent
of white adults living in Minnesota, while it denied the fundamental right to vote to nearly
4½ percent of Black adults living in Minnesota and more than 8 percent of Native
American adults living in Minnesota. Because a higher proportion of nonwhite individuals
are awaiting automatic restoration of their right to vote, appellants claim that
section 609.165 demonstrably and adversely affects one race differently than other races.
The Secretary of State argues that appellants’ comparison of the voting eligibility
of all Minnesotans of voting age who are eligible to vote and those Minnesotans who have
committed a felony is irrelevant to the similarly situated analysis, and that the s tatistical
data presented by appellants fails to show that section 609.165 creates a racial classification
in practice. In support of his argument, the Secretary of State asserts that the disparities
reflected in the statistical data are “caused by many o ther factors related to the

4 The evidence appellants presented in the district court includes statistical data on
the average lengt h of pronounced probation sentences by race. Minnesota Sentencing
Guidelines Commission, Average Pronounced Probation Lengths: Sentenced 1981–2018
(2020). Facially, this data show that since at least 1981, white defendants on average are
sentenced to longer terms of probation than Black or Native American defendants.
Between 2001 and 2018, white defendants on average received probation sentences that
were 13 months longer than Black defendants and 9 months longer than Native American
defendants. Id. In other words, section 609.165 restores the civil rights to Black and Native
American defendants more quickly than it restores the civil rights of white defendants.
C-6
disenfranchisement imposed by the constitution,” as opposed to section 609.165.
(Emphasis added .) According to the Secretary of State, there is no evidence in this case
that the racially neutral criterion in section 609.165 has been applied differently based on
race.
After considering the arguments presented by the parties, I agree with the court that
a comparison of the voting eligibility of all Minnesotans of voting age and those
Minnesotans who have committed a felony is irrelevant to the similarly situated analysis
because, for voting eligibility purposes, the Minnesota Constitution treats persons who
have been convicted of a felony differently than those who have not been convicted of a
felony and appellants are not challenging the legitimacy of that provision. Thus, arguments
based on comparisons of the voting eligibility of all Minnesotans of voting age eligible to
vote and those Minnesotans who have committed a felony—the sole arguments raised by
appellants—are irrele vant to the equal protection analysis of section 609.165. In my view,
this should be the end of the equal protection analysis.
5 As we have observed elsewhere,
“[w]hat is most important is identifying clearly the specific equal protection concern raised
by the party challenging the law.” Fletcher Props., 947 N.W.2d at 22 (emphasis added).

5 The court, relying on an argument not made by any party, advances another
approach to the similarly situated analysis and under this re -framing, concludes that the
similarly situated requirement is met . Given our adherence to the principle of party
presentation, Leuthard, 958 N.W.2d at 650, I do not join that portion of the court’s opinion.
Without the benefit of argument and analysis, by both the parties and our district court and
appellate colleagues, we know neither the strengths nor weaknesses of the court’s proposed
framework.
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Although the court is bound by the language of Article VII, Section 1, of the
Minnesota Constitution, which expressly denies the fundamental right to vote to convicted
felons, I acknowledge that appellants and amici have identified serious public policy
concerns that are reflected in troubling statistical data and academic studies. But whether
these serious public policy concerns warrant an amendment to Article VII, Section 1, is a
question that must be answered by the Legislature and ultimately the voters of Minnesota. 6
See Minn. Const. art. IX, § 1 (defining the process required to pass a constitutional
amendment).
In sum, the clause “unless restored to civil rights” in Article VII, Section 1, cannot
be reasonably interpreted to mean “unless released or excused from incarceration.” The
Legislature did not violate Article VII, Section 1, when it enacted section 609.165 because
the statute does not limit or withhold the restoration of civil rights, but instead
automatically restores the civil rights of convicted felons, including their right to vote. I
cannot join the court’s equal protection analysis because it relies on an argument that was
not raised by the parties to find the similarly situated requirement met. But turning to the
arguments the parties did make, because I agree with the court that appellants’ arguments
based on a comparison of the voting eligibility of all Minnesotans of voting age and those

6 Short of a constitutional amendment, in addition to other possible legislative
changes, the Legislature could consider an amendment to Minn. Stat. § 609.165, allowing
discretionary restoration of voting rights in a manner similar to Minn. Stat. § 609.165,
subd. 1d, which permits discretionary restoration of the right to possess a firearm.
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Minnesotans who have committed a felony are irrelevant to the similarly situated analysis,
I concur in the result reached by the court on the equal protection issue.

GILDEA, Chief Justice (concurring).
I join the concurrence of Justice Anderson.
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D I S S E N T
HUDSON, Justice (dissenting).
The fundamental right to vote, enshrined in Article VII of the Minnesota
Constitution, demands generous and fierce protection by the judiciary. Likewise, the
guarantee of equal protection, found in Article I, Section 2, of our state constitution,
mandates that this court serve as the final guarantor of equality and fairness, and that we
scrutinize any statute that improperly discriminates among the people of this state.
Appellants ask us to fulfill that revered responsibility by invalidating the
disenfranchisement provision for people convicted of felonies under Minnesota Statutes
section 609.165 (2022). The court eschews that responsibility. I would not, and because I
conclude that section 609.165 fails under the equal protection guarantee of Article I,
I respectfully dissent. 1
A.
1.
Based on Article I of the Minnesota Constitution, we have articulated a more
stringent equal protection principle that “hold[s] lawmakers t o a higher standard” when a
statute restricts a fundamental right or has a racially disparate impact. Fletcher Props., Inc.
v. City of Minneapolis, 947 N.W.2d 1, 19 (Minn. 2020) . When a statute creates a racial
classification in practice, we evaluate it under heightened rational basis review. Id. (citing

1 Because I conclude that section 609.165 violates the equal protection guarantee of
Article I, I do not address appellants’ other theories, nor do I respond to the court’s
treatment of those theories.
D-2
State v. Russell, 477 N.W.2d 886, 890 (Minn. 1991)). I conclude that this statute —on its
own—is unconstitutional under heightened rational basis review.
I begin by describing Minnesota’s highly protective approach to equal protection
claims based on racial discrimination. In general, “ a law subject to rational basis review,”
as opposed to strict scrutiny, “does not violate the equal protection principle of the
Minnesota Constitution when it is a rational means of achieving a legislative body’s
legitimate policy goal.” Fletcher, 947 N.W.2d at 19. But since our seminal decision in
State v. Russell, Minnesota courts have used heightened rational basis review to determine
whether statutes with disp roportionate racial effects are constitutional. Thus, in Russell ,
we held that “[i]t is particularly appropriate that we apply our stricter standard of rational
basis review in a case such as this where the challenged classification appears to impose a
substantially disproportionate burden on the very class of persons whose history inspired
the principles of equal protection.” 477 N.W.2d at 889. We recently reaffirmed this
principle in Fletcher:
[T]he principle we apply in analyzing laws subject to rational basis review
under the Minnesota Constitution is the same principle applied to such laws
under the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution. But under our precedent, this rule is subject to
an important exc eption: under the equal protection guarantee of the
Minnesota Constitution, we hold lawmakers to a higher standard of evidence
when a statutory classification demonstrably and adversely affects one race
differently than other races, even if the lawmakers’ purpose in enacting the
law was not to affect any race differently.

Fletcher, 947 N.W.2d at 19 (citing Russell, 477 N.W.2d at 890) (emphasis added); see also
State v. Frazier, 649 N.W.2d 828, 834 (Minn. 2002) (acknowledging that a constitutional
D-3
violation may be found when a “statute creates a racial classification in practice”). 2
Heightened rational basis review is “more stringent” than rational basis review, Russell,
477 N.W.2d at 889, and demands “a tighter fit between the government interest and the
means employed to achieve it in the form of actual evidence (as opposed to hypothetical
or conceivable proof) that the challenged classification will accomplish the government
interest,” Fletcher, 947 N.W.2d at 19 n.12.3

2 Although the concurrence notes that appellants have presented no evidence that
Article VII or section 609.165 were adopted with an expressly discriminatory purpose,
Russell, too, involved a facially neutral statute —but a statute that, in application, had a
“substantial discriminatory racial impact.” Russell, 477 N.W.2d at 894 (Simonett, J.,
concurring). It was that impact that necessitated a more stringent standard of review. And,
of course, we cannot rest too heavily on our laurels because it is well -documented that the
history of disenfranchisement in the United States and Minnesota is fraught with
intentional racism. When ratified in 1858, the Minnesota Constitution included a provision
in which Native Americans could become citizens entitled to vote only if they adopted the
“language, customs, and habits of civilization . . . .” Minn. Const. art. VII, § 1(4) (1858).
Additionally, Jim Crow laws led to mass incarceration, specifically to limit Black
American voting power. See Jeff Manza et al., The Racial Origins of Felon
Disenfranchisement, in Locked Out: Felon Disenfranchisement and American Democracy

41, 55–57 (Jeff Manza & Christopher Uggen eds., 2006).

3 For equal protection claims based on statutory classifications, the threshold task is
identifying the challenged classification in the statute. Fletcher, 947 N.W.2d at 19; see
also State v. Cox, 798 N.W.2d 517, 521 (Minn. 2011) (“We impose this threshold showing
because the guarantee of equal protection does not require that the State treat persons who
are differently situated as though they were the same.” (internal quotation marks omitted)
(citation omitted)). However, insofar as the majority claims tha t we require this similarly
situated inquiry for a Russell claim, the majority is wrong. Instead, in a Russell claim
challenging a facially neutral statute, we have applied heightened rational basis review
when the plaintiff “demonstrate[s] that the statute creates a racial classification in practice.”
Frazier, 649 N.W.2d at 834; see also Russell, 477 N.W.2d at 889. Indeed, in Frazier, we
were confronted with two distinct equal protection challenges: one under traditional
rational basis review, and one under Russell’s heightened rational basis review. See
Frazier, 649 N.W.2d at 832–39. While we engaged in a similarly situated analysis for the
claim under traditional rational basis review, see id. at 837–39, critically, we did not engage

D-4
As the name suggests, the racial-classification-in-practice theory examines a statute
to determine whether it has a disparate impact that creates a racial classification in practice,
and it is the plaintiff’s burden to make that demonstration. Frazier, 649 N.W.2d at
834–36. This evidentiary requirement demands more than simply presenting data showing
that different numbers of racial groups are affected by the challenged statute. Instead, the
plaintiff’s evidence must evoke —through a robust and reliable record —the same variety
of skepticism as a statute that makes a racial classification on its face. See id. at 833–36.4
After establishing the existence of either a facially discriminatory classification or
a racial classification “in practice” based on a disparate impact, the cour t proceeds to the

in a similarly s ituated analysis for the Russell claim, instead jumping immediately into
evaluating whether the statute created a racial classification in practice, see id. at 832–34.
Rather than stating that a similarly situated inquiry was the threshold question, we
explicitly stated that “the threshold question before us is whether Frazier's data demonstrate
that [the statute] creates a racial classification.” Id. at 834. It is therefore highly
illuminating that in the only other case to examine a Russell claim other than Russell, we
clearly jettisoned the similarly situated analysis for equal protection claims predicated on
a racial classification in practice.

4 It is worth noting that at no point has the Secretary of State denied or contradicted
the accuracy of appellants’ data, or their conclusion that people of color are
disproportionately impacted by the State’s disenfranchisement scheme.
D-5
“fit” part of the equal protection analysis. See Fletcher, 947 N.W.2d at 19 n.12 (describing
the “tighter fit” analysis for heightened rational basis review claims).
Apart from Russell , we have only had the opportunity to analyze a rac ial
classification in practice in one prior case. In Frazier, we concluded that the appellant,
Frazier, failed to meet his evidentiary burden to make a disparate impact claim under a
racial-classification-in-practice theory. 5 649 N.W.2d at 836–37. Frazier presented only
two sets of data purporting to show disparate impact with small sample sizes and
questionable metrics. Id. at 834–36. Given our concerns about the “reliability and validity
of Frazier’s data and data analysis,” we concluded that we could not evaluate whether the
statute had a racially disparate impact. Id. at 835–36.
2.
Here, unlike in Frazier, appellants present strong, uncontested evidence that section
609.165 has a disparate impact by creating a racial cl assification in practice. 6

5 As discussed above, in addition to his racial- classification-in-practice theory,
Frazier also advanced a similarly situated theory that compared two statutes criminalizing
similar conduct with different sentences: the benefit-of-a-gang statute, Minnesota Statutes
section 609.229 (2000), and the racketeer influenced and corrupt organizat ions (RICO)
statute, Minnesota Statutes section 609.901 et seq. (2000). Frazier, 649 N.W.2d at 837.
We concluded that Frazier was not “similarly situated to an individual convicted under
RICO.” Id. at 839.

6 The uncontested record in this matter is robust and reliable, and therefore sufficient
for review. It contains numerous data from a variety of reputable sources, including the
Minnesota Sentencing Guidelines Commission, the Minnesota Department of Corrections,
the Minnesota Justice Resource Cen ter, the U.S. Census Bureau, law reviews, and
peer-reviewed academic journals. Appellants’ experts, Dr. Barbara Carson and Dr.
Christopher Uggen, each a well -credentialed scholar, prepared substantial expert reports
explaining and analyzing relevant data, including explanations of their sources and

D-6
Section 609.165 creates a group of people for which the effects are disparate based on race,
that group being people convicted of felonies who are awaiting re -enfranchisement until
their sentences are discharged. The record shows that the statute withholds the right to
vote from just 1 percent of voting-age white Minnesotans, compared to over 4 percent of
Black Minnesotans and nearly 9 percent of Native Americans in the state. 7 And although
there is a generally uniform low rate of community supervision—and, therefore, felony
disenfranchisement—across Minnesota counties for otherwise eligible white voters, the
disenfranchisement rate for otherwise eligible Black and Native Ameri can voters varies
and reaches a staggering 12 percent in some counties. In 2016, Black Minnesotans
accounted for more than 20 percent of disenfranchised voters in the state. Native
Americans, despite comprising less than 1 percent of the state population, accounted for
nearly 7 percent of the state’s disenfranchised voters. Notably, among other harms, the
discharge requirement in the statute transforms historic racial disparities within the
criminal justice system into persistent disparities in political power. In sum, the statute

methodologies. Nearly a dozen amici provided briefs supporting the conclusions that the
current system has a disparate impact on people of color that results in a variety of harms,
including disproportionate voting power. (No amicus brief disagreed.) Moreover, the
Secretary of State does not dispute any of the evidence presented by the appellants. In
sum, this record contrasts sharply to the data and analysis we found insufficient to
substantiate the racial-classification-in-practice claim in Frazier. See Frazier, 649 N.W.2d
at 836 (“What we do require . . . is a factual record that permits us to evaluate the reliability
and validity of both the data and the data analysis. We do not have such a record here.” ).
Based on this robust record, I would conclude that the evidence shows a disparate impact
that establishes a racial classification in practice.

7 These undisputed figures are the percentages of each racial group subject to felony
disenfranchisement who are still serving their sentences, the bulk of which are on
probation.
D-7
creates a racial classification in practice because white voting-age Minnesotans are eligible
to vote at a higher —sometimes much higher —percentage than voting- age Black and
Native American Minnesotans, in particular.
Despite th e uncontested record, the Secretary of State argues that the
disproportionate share of people of color with felony convictions —a “serious concern” —
is not traceable to section 609.165. Likewise, the district court concluded that heightened
rational basis r eview did not apply by observing that the statute does not cause all of
the racial disparities in the criminal justice system. And today, this court follows suit by
laying blame for the racial -classification-in-practice squarely on Article VII’s felony
disenfranchisement provision.
But section 609.165 is not blameless, and the court misapprehends its impact by
portraying it as a charitable “automatic restoration” statute. In reality, section 609.165 acts
as a gatekeeper to the franchise, determining who w ill have a voice in the democratic
process and who will continue to be relegated to political marginalization. In its gatekeeper
role, section 609.165 channels and gives effect to the racial disparities generated from
Article VII’s felony disenfranchiseme nt provision. Sanctioning such discrimination is
particularly perverse in the voting rights context because it inhibits the ability of the
politically powerless to redress discrimination through ordinary political means, further
marginalizing those seeking to reenter society. See Christina Beeler, Felony
Disenfranchisement: Paying and Re-Paying a Debt to Society, 21 U. Pa. J. Const. L. 1071,
1087 (2019).
D-8
A related disagreement between myself and the court is the question of the proper
comparator groups for the Russell analysis. Both the majority and the concurrence disagree
that we must compare, as appellants do, the racial disparities between Minnesotans
convicted of a felony and disenfranchised under section 609.165 and other voting- age
Minnesotans.
But rejecting appellants’ formulation of the relevant comparator groups is only
possible by erroneously portraying section 609.165 as a charitable “automatic restoration”
statute. Rather, as I have explained, section 609.165 effectively enacts and extends Ar ticle
VII into the criminal code. In fact, felony disenfranchisement is not the constitutional
baseline because Article VII does not mandate appellants’ disenfranchisement —indeed ,
Article VII would ostensibly permit the Legislature to restore to civil rights a person
convicted of a felony at the moment of conviction. In promulgating section 609.165, the
Legislature has chosen to disenfranchise people convicted of felonies until their sentences
are discharged, and it is that legislative choice that disenfranchises persons like appellants.
Because section 609.165 is a disenfranchisem ent statute , we must examine the racial
disparities between Minnesotans convicted of a felony (that is, those subject to the mandate
of the statute) and voting- age Minnesotans not subject to the disenfranchisement wrought
by section 609.165.
8 See Russell, 477 N.W.2d at 887–89 (comparing the racial disparities

8 Remarkably, despite being the decision of the court, it is difficult to decipher exactly
what the majority decides. Indeed, the majority says it need not decide whether the
similarly situated analysis applies to Russell claims, it need not decide whether the court
of appeals erred in reasoning that Russell was inapplicable, it need not decide whether
Russell applies to a so-called “remedial statute” like section 609.165, and it need not decide

D-9
between those affected by a legislative choice —that is, harsher punishments for crack
cocaine possession—and those not a ffected by that legislative choice).
The undisputed record draws a direct connection between the disproportionate
levels of felony disenfranchisement in communities of color to section 609.165, which
restricts those same communities of color from voting until their full sentence is
discharged. Notably, appellants do not challenge the disproportionate arrest, incarceration,
and conviction of persons of color. They are challenging the legislative decision to extend
disenfranchisement as a collateral consequence of conviction to the 53,585 persons living
in the community on probation, parole, or supervised release. There is no intervening cause
between that legislative decision and raci al disparities in the right to vote: the legislative
classification directly causes the disparate impact. The Legislature’s denial of voting rights
to persons living in the community before discharge of sentence “adversely affects one
race differently tha n other races.” Fletcher, 947 N.W.2d at 19, 27.
The resulting racial disparity in voting rights perpetuated by section 609.165 “cries
out for closer scrutiny.” Russell, 477 N.W.2d at 888 n.2. In ignoring that cry, the court
effectively sanctions a perni cious statutory racial classification regime that maintains the
disenfranchisement of large swaths of Minnesota’s communities of color, thereby
diminishing their political power and influence in this state. We are better than this .

“whether [section 609.165] serves the purpose to be achieved at the appropriate level of
fit.” Nonetheless, the majority offers its own musings about answers to those questions by,
for example, suggesting that the court of appeals’ reasoning wa s too “simple” and
observing that restoring the right to vote “serve[s] a rehabilitative purpose.” I worry that
the majority will only inject more uncertainty into our equal protection jurisprudence.
D-10
Having concluded that section 609.165 creates a racial classification in practice, I
would follow Russell and apply heightened rational basis review, which asks whether
actual evidence shows a “tighter fit” than the fit required under traditional rational basis
review between t he government’s interest in enacting section 609.165 and the statute’s
means to achieve that interest. Fletcher, 947 N.W.2d at 19 n.12. The first inquiry is
whether the government has articulated a “legitimate interest” in that purpose. Id. If there
is a legitimate interest, we then evaluate whether “actual evidence” shows a tighter fit
between the interest and the “means employed to achieve it.” Id.
It is uncontested that the only interest the Legislature specifically articulated by
enacting section 609.165 is rehabilitation. See Advisory Committee on Revision of the
Criminal Code, Proposed Minnesota Criminal Code 42 (1962) (explaining that restoration
of voting rights “is deemed desirable to promote the rehabilitation of the defendant and his
return to his community as an effective participating citizen”); id. at 60–61 (reasoning that
“rehabilitation will be promoted by removing the stigma and disqualification to active
community participation resulting from the denial of his civil rights”).
Rehabilitation is surely a legitimate interest, as it promotes public safety and a
competent citizenry, and has long been part of the Legislature’s stated purposes for the
criminal code in general. See Minn. Stat. § 609.01 (2022) (stating that “rehabilitation of
those convicted” is among the purposes for the Criminal Code of 1963). But it is also true
D-11
that the purpose of rehabilitation is a poor fit with the “means employed to achieve it” in
section 609.165.9
Section 609.165 maintains a person’s disenfranchisement until the ir full sentence
is discharged. The reco rd contains substantial evidence that this sentence -discharge
requirement, which denies the right to vote to people in the community on probation and
supervised release, can sometimes del ay re-enfranchisement for decades, as appellants’
lengthy probation terms demonstrate , and at a massive scope and scale.10 Section 609.165
is unquestionably a poor fit with the stated goal of rehabilitation. In fact, there is broad

9 The Secretary of State ’s counsel acknowledged at oral argument that, under
different circumstances, “the parties would likely be aligned,” and that “[t]he Secretary [of
State] has been a public advocate for changing this statute.” Oral Argument at 28:01- 08,
Schroeder v. Simon, No. A20-1264 (Minn. argued Nov. 30, 2021), available at
https://www.mncourts.gov/SupremeCourt/OralArgumentWebcasts/ArgumentDetail.aspx
?vid=1507.

10 Appellants’ brief takes note of Minnesota’s increased high rates of incarceration and
probation, resulting in an expanding number of persons subject to felony
disenfranchisement, including a disproportionate number of people of color. In 1974, for
example, there were 2,546,000 voting-age adults in Minnesota and a total of 6,143 persons
convicted of felonies living in the community on parole or probation. By 2018, there were
4,307,433 voting- age adults and 52,549 persons convicted of felonies living in the
community on parole or probation. Thus, the number of peopl e living in the community
who were disenfranchised because they were serving a felony sentence rose from 0.24
percent of the state’s voting-age population in 1974 to 1.22 percent in 2018.
It is true that as of August 1, 2020, the Sentencing Guidelines provide for a
presumptive 5-year cap on probation terms for felony offenders. Minn. Sent. Guidelines
3.A.2.a. However, that guideline is riddled with exceptions. First, the guideline cap does
not apply to murder offenses, criminal vehicular homicide, and cr iminal sexual conduct
offenses. Minn. Sent. Guidelines 3.A.2.d. Second, the sentencing judge can impose a
probation term longer than 5 years if she “identifies and articulates substantial and
compelling reasons to support a departure.” Minn. Sent. Guide lines 3.A.2.a. And third,
the amendment is not retroactive, meaning the presumptive 5- year cap is cold comfort for
individuals with existing lengthy probation terms.
D-12
consensus that re -enfranchisement is critical for rehabilitation, in part, because voting is
the ultimate act of civic engagement. See Mark Haase, Civil Death in Modern Times:
Reconsidering Felony Disenfranchisement in Minnesota, 99 Minn. L. Rev. 1913, 1927
(2015); Guy Padraic Hamilton-Smith & Matt Vogel, The Violence of Voicelessness: The
Impact of Felony Disenfranchisement on Recidivism , 22 Berkeley La Raza L.J. 407, 429
(2012); Christy A. Visher & Jeremy Travis, Transitions from Prison to Community:
Understanding Individual Pathways, 29 Ann. Rev. Soc. 89, 97–98 (2003).
Amici here compellingly illustrate this point. For example, the American Parole
and Probation Association noted that “in addition to helping individuals re -enter their
communities, reinstating the right to vot e is strongly tied to lower recidivism rates and
increased public safety.” Likewise, the Ramsey County Attorney’s Office argued that
disenfranchising residents living in the community amounts to a disservice for both the
person and the entire community. The Legislature has never offered an affirmative reason
to disenfranchise persons on probation, parole, or supervised release. The sole stated
interest related to voting rights of persons in the community is in restoring them to effective
citizenship. But the record reveals that the statute does just the opposite. Accordingly, not
only is the record devoid of any actual evidence of a tight fit between the statute and the
government’s interest in rehabilitation, but the current statute also actually undermines that
D-13
goal.11 I would therefore conclude that section 609.165 fails under the equal protection
guarantee of Article I, Section 2, of the Minnesota Constitution. 12
B.
I am reminded of Justice Wahl’s poignant observation in Russell : “There comes a
time when we cannot and must not close our eyes when presented with evidence that certain
laws, regardless of the purpose for which they were enacted, discriminate unfairly on the
basis of race.” Russell, 477 N.W.2d at 888 n.2. Indeed, Justice Wahl’s admonition reminds

11 My application of Russell in this case would not lead to a parade of horribles
invalidating every criminal statute that may disproportionately impact a racial minority.
Section 609.165 is unique in the criminal code in two respects: first, it involves
voting rights, not criminalizing conduct, and second, it has a single, undisputed purpose:
rehabilitation. In this case, the means-end fit analysis is not a close call; section 609.165’s
means to achieve its sole objective of rehabilitation—delaying re -enfranchisement until the
sentence is discharged—is entirely antithetical to rehabilitation.
In contrast, for other criminal statutes, the Legislature’s overarching purposes for
the criminal code apply, including protecting public safety. See Minn. Stat. § 609.01,
subd. 1(1) (listing public safety first among the general purposes of the criminal code).
Thus, even if a litigant were able to demonstrate that rates of convictions for crimes such
as murder, robbery, and assault are disproportionately higher for racial minorities, the
litigant would then have the additional burden of demonstrating that there is no fit between
the “government interest and the means employed to achieve it in the form of actual
evidence.” Fletcher, 947 N.W.2d at 19 n.12 (citing Russell, 477 N.W.2d at 888 n.2). One
cannot seriously maintain that there is not a tight fit between protecting public safety and
criminalizing conduct such as murder, robbery, and assault. I therefore do not believe that
my theory would open the floodgates to Russell challenges of every criminal statute.

12 Because my position has not won the d ay, I do not discuss potential remedies for
the unconstitutionality of section 609.165. But I reject the majority’s musing that had we
found section 609.165 unconstitutional, “ an effective judicial remedy may not have been
possible.” That suggestion “is incompatible with the principle that where there is a right,
there is a remedy.” Cruz-Guzman v. State, 916 N.W.2d 1, 9 (Minn. 2018). The difficulty
of fashioning an effective remedy does not excuse us from honoring appellants’
constitutional entitlement to a “remedy in the laws for all injuries or wrongs which [they]
may receive to [their] person, property or character.” Minn. Const. art. I, § 8.
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Minnesotans that our state constitution vigorously guards against the surreptitious ways
that laws, even well-meaning laws, can harm communities of color in this state. In closing
its eyes to the clear racial disparities emanating from section 609.165, this court demeans
our constitution’s promise of equal protection and all but relegates Russell ’s wisdom to a
footnote in history.
Upholding the constitutionality of section 609.165, as the court does here,
rationalizes and sanctions the racial discrimination inexorably woven into the statute. The
real-world consequence of this legislation is that more than 50,000 Minnesotans —
disproportionately Minnesotans of color —are politically voiceless until lengthy probation
and supervised-release t erms conclude. And these sentences emerge from a backdrop of
persistent racial discrimination and disparate impacts across the criminal justice system. It
is well- documented that felony convictions —and the resulting imprisonment and
disenfranchisement—ha ve been and continue to be a prominent modern method of racial
discrimination. See, e.g., Angela Behrens et al., Ballot Manipulation and the “Menace of
Negro Domination”: Racial Threat and Felon Disenfranchisement in the United States,
1850–2002, 109 Am. J. Socio. 559, 563–64 (2003); Pippa Holloway, “A Chicken -Stealer
Shall Lose His Vote”: Disenfranchisement for Larceny in the South, 1874–1890, 75 J. S.
Hist. 931, 934–35 (2009); see generally Michelle Alexander, The New Jim Crow: Mass
Incarceration in the Age of Colorblindness (2010) (arguing that mass incarceration is a
rebirth of Jim Crow, in which criminal convictions are used to continue denying Black
Americans civil rights).
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Our laws have largely advanced from color -coded provisions, explicit
classifications, and de jure discrimination. Yet, beyond the pages of codes and reporters,
our legal system still harbors inequality. Although our tools of equal protection analysis
may not always be perfectly tailored for addressing the insi dious ways in which racial
discrimination permeates our laws, that challenge does not absolve us from our
responsibility to apply those tools to address the claims before us. As we stated in
Erlandson v. Kiffmeyer , 659 N.W.2d 724 (Minn. 2003), unjustified deprivation of voting
rights strikes at the fabric of the State’s constitutional system, making it essential that the
courts exercise particular care in reviewing any “statute that denies some residents the right
to vote.” Id. at 733 (citation omitted) (internal quotation marks omitted).
Nevertheless, in arriving at its conclusion by a path for which no party has
advocated, the majority relies upon a disingenuous portrayal of section 609.165 and an
unduly cramped version of our Russell doctrine. I cannot acquiesce in the majority’s rough
treatment of our innovative precedent. Properly understood, Russell requires us to look
beyond form and examine how section 609.165 functionally disenfranchises a
disproportionate number of Minnesotans of color. Indeed , Russell deserves a broad rather
than a begrudging application, for it embodies our state and nation’s abiding commitment
to equality for “the very class of persons whose history inspired the principles of equal
protection.” Russell, 477 N.W.2d at 889. It is the solemn duty of the judiciary, when called
upon, to act decisively when that commitment to a more equal union is dishonored. Today,
we were called to act; today, we failed to do so . And w ith judicial redress largely
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foreclosed by today’s decision, the ball is now in the Legislature’s court, and it must decide
whether it will continue denying the right to vote to ove r 53,000 Minnesotans.
I regret that the court limits the ability of the Minnesota Constitution’s equal
protection principle to addres s this injustice. The right to vote is too central to our
democracy, and the constraints on that right are too perilous, f or us to ignore. I dissent.