Jennifer Schroeder, et al., Appellants,

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1264

Jennifer Schroeder, et al.,
Appellants,

vs.

Minnesota Secretary of State Steve Simon,
Respondent.

Filed May 24, 2021
Affirmed in part and dismissed in part
Johnson, Judge

Ramsey County District Court
File No. 62-CV-19-7440

Craig S. Coleman, Thomas K. Pryor, Kirsten L. Elfstrand, Faegre Drinker Biddle & Reath,
L.L.P., Minneapolis, Minnesota; and

Teresa J. Nelson, David P. McKinney, Amer ican Civil Liberties Union of Minnesota,
Minneapolis, Minnesota (for appellants)

Keith Ellison, Attorney General, Angela Be hrens, Jason Marisam, Assistant Attorneys
General, St. Paul, Minnesota (for respondent)

Tara Kalar, St. Paul, Minnesota (for amicus curiae ISAIAH)

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

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

Marc A. Al, Andrew J. Pieper, Riley A. C onlin, Emily C. Atmore, Stoel Rives, L.L.P.,
Minneapolis, Minnesota (for amici curiae League of Women Voters Minnesota, Common
Cause Minnesota, The Minnesota Second Chance Coalition, and New Venture Fund o/b/o
Voting Rights Lab)

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

2
James R. Rowader, Jr., Minneapolis City Attorney, Minneapo lis, Minnesota (for amici
curiae City of St. Paul and City of Minneapolis)

Bradford Colbert, Kevin Gray, St. Paul, Minnesota (for amicus curiae Legal Assistance to
Minnesota Prisoners)

Joshua Esmay, Minneapolis, Minnesota (for amicus curiae Legal Rights Center)

Emily Hunt Turner, Minneapolis, Minnesota (for amicus curiae All Square)

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

John Choi, Ramsey County Attorney, Jeffrey A. Wald, Assistant County Attorney, St. Paul,
Minnesota (for amicus curiae Ramsey County Attorney’s Office)

Henry Allen Blair, Greene Espel, P. L.L.P., Minneapolis, Minnesota (for amicus curiae
Volunteers of America)

Katherine M. Swenson, Greene Espel, P.L.L.P., Minneapolis, Minnesota (for amici curiae
the District of Columbia, California, Delaware, Hawaii, Illinois, Maryland, Massachusetts,
Nevada, New Jersey, New Mexico, New York , Rhode Island, Vermont, Virginia, and
Washington)

Considered and decided by Hooten, Pres iding Judge; Johnson, Judge; and Slieter,
Judge.
SYLLABUS
Section 609.165 of the Minn esota Statutes is not unconstitutional on the ground that
it violates the right-to-vote provisions in article VII, section 1, of the Minnesota
Constitution; the equal-protection principle ar ising under article I, section 2, of the
Minnesota Constitution; or the due-process clause in article I, section 7, of the Minnesota
Constitution.

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OPINION
JOHNSON, Judge
The Minnesota Constitution provides that a person who has be en convicted of a
felony is not entitled to vote “unless restored to civil ri ghts.” A statute provides that a
felon’s civil rights are restored when the fel on is discharged, which occurs automatically
upon the expiration of the felon’s sentence. The appellants in this appeal challenge the
constitutionality of that statute on the ground th at it violates three provisions of the state
constitution. The district court rejected their arguments on cross-motions for summary
judgment. We conclude that the statute doe s not violate any of the three constitutional
provisions on which it is challenged. Therefore, we affirm.
FACTS
This action was commenced in October 2019 by four persons who have been
convicted of felonies and we re, at that time, living in their respective communities and
completing their sentences on probation, parole, or supervised release. Jennifer Schroeder
was convicted of a drug crime in 2013, was sentenced to confinement in a county jail for
one year, and now is serving a 40-year term of probation, which will expire in 2053. Elizer
Darris was convicted of second-degree murder in 2001, was imprisoned until 2016, and
now is serving a term of supervised release that will expire in 2025. Christopher Jecevicus-
Varner was convicted of a drug crime in 2014 and was serv ing a sentence of 20 years of
probation. Tierre Caldwell was convicted of assault in 2010, served approximately six
years in prison, and was released in 2016 and placed on probation.

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The plaintiffs sued Steve Si mon, the Secretary of State, in his official capacity. In
the first paragraph of their complaint, the plaintiffs stated that the purpose of their lawsuit
is “to remedy the Defendant’s unconstituti onal deprivations of their fundamental
constitutional right to participate in the democratic process.” The plaintiffs pleaded three
legal theories: that section 60 9.165 violates the right-to-vot e provisions in article VII,
section 1, of the Minnesota Constitution; that the statute violates the equal-protection
principle arising from article I, section 2, of the Minnesota Constitution; and that the statute
violates the due-process clause in article I, section 7, of th e Minnesota Constitution. In
their prayer for relief, the plaintiffs sought a declaration that the challenged statute is
unconstitutional to the extent that it disen titles felons from voting while on probation,
parole, or supervised release and a declarati on that felons may regain their right to vote
upon “being released or excused from incarceration.”
In February 2020, the plaintiffs and th e secretary filed cross-motions for summary
judgment, which addressed all of the plaintiffs’ claims. The plaintiffs submitted a lengthy
report prepared by a professor of sociol ogy, who compiled and analyzed statistics
concerning the numbers of persons who have been convicted of a felony in Minnesota and
are in prison or on probation, parole, or supe rvised release. The professor calculated the
per-capita rates of disenfranchisement in the state at various times in its history. The
professor noted that, in 2018, 0.21 percent of Minnesota’s voting-age population was in
prison because of a felony co nviction and that 1. 22 percent was on probation, parole, or
supervised release because of a felony convictio n. The professor also calculated
disenfranchisement rates by race and determined that, at present, “about 4.5% of voting-

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age Black Minnesotans and 8.3% of American Indian Minnesotans are disenfranchised due
to voting restrictions for pers ons on community supervision, relative to less than 1% of
Asian and White Minnesotans.” 1 The secretary does not dispute the professor’s data or
analysis, and the secretary did not submit any contrary data or evidence.
In August 2020, the district court file d a 14-page order and memorandum in which
it granted the secretary’s summary-judgment motion and denied the plaintiffs’ summary-
judgment motion. The plaintiffs filed a timely notice of appeal from the judgment.
ISSUES
I. Is section 609.165 of the Minnesota Statutes unconstitutional on the ground
that it violates the right-to- vote provisions in article VII, section 1, of the Minnesota
Constitution?
II. Is section 609.165 of the Minnesota Statutes unconstitutional on the ground
that it violates the equal-prot ection principle arising under article I, section 2, of the
Minnesota Constitution?
III. Is section 609. 165 of the Minnesota Statutes unconstitutional on the ground
that it violates the due-process clause in article I, section 7, of the Minnesota Constitution?

1The professor does not state that the disparities in disenfranchisement rates by race
would be less if the district court had granted the relief requested. Our review of the data
in the professor’s report indicates that, if felons were prohibited from voting only while
incarcerated, the disparities would increase, not decrease. But we need not consider that
issue. The secretary does not make such an argument, and ou r analysis of the plaintiffs’
claims leads to the conclusion that the ch allenged statute is not unconstitutional, which
makes it unnecessary to consider the issue of remedy.

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ANALYSIS
Before we analyze the issu es raised by the parties’ arguments, we identify the laws
that determine whether a person may vote if he or she has been convicted of a felony.
The Minnesota Constitution de fines the right to vote in article VII, which is
captioned “Elective Franchise.” The first section of that article states:
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 da ys 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 el ection 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 requirements; a person who has been convicted of
treason or felony, unless restored to civil rights; a person under
guardianship, or a person who is insane or not mentally
competent.

Minn. Const. art. VII, § 1 (emphasis added).
There is no other provision in article V II concerning the restoration of civil rights
of a person who has been convicted of treas on or a felony. “But the Legislature has
identified the circumstances under which the vot ing rights of felons . . . are restored.”
Minnesota Voters Alliance v. Simon , 885 N.W.2d 660, 662 (Mi nn. 2016). The relevant
statute provides, in part:
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 ha d not taken place, and the order
of discharge shall so provide.

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Minn. Stat. § 609.165, subd. 1 (2020) (emphasi s added). The same statute specifies how
and when a person who has been convicted of a felony is discharged: “The discharge may
be: (1) by order of the court following stay of sentence or stay of execution of sentence; or
(2) upon expiration of sentence.” Id., subd. 2.
Section 609.165 was enacted in 1963 as part of a co mprehensive revision of the
state’s criminal code, which was recommended by a statutorily created commission. 1963
Minn. Laws ch. 753, art. 1, at 1198; see also Advisory Commission on Revision of the
Criminal Code, Proposed Minnesota Criminal Code 5-10 (1962). The commission
recommended a statute that is very similar to the present version of section 609.165.
Proposed Minnesot a Criminal Code , supra, at 42. In its final report, the commission
explained the reasons for its recommendation:
The recommended sections also revise the rather
extensive present provisions relating to the restoration of civil
rights. This may be discretiona ry with the Go vernor, but in
practice it appears that the restoration of civil rights has been
granted almost as a matter of course. Under the recommended
provisions, these rights will be automatically restored when the
defendant is discharged follo wing satisfactory service of
sentence, probation or parole. This is deemed desirable to
promote the rehabilitation of the defendant and his return to his
community as an effective participating citizen.

Proposed Minnesota Criminal Code , supra, at 42. In additional comments, the
commission further explained:
It is believed that where a sentence has either been
served to completion or where the defendant has been
discharged after parole or pr obation his rehabilitation will be
promoted by removing the stigma and disqualification to active
community participation resulting from the denial of his civil

8
rights. The present practice it is understood is for the Governor
to restore civil rights almost automatically.

Proposed Minnesota Criminal Code , supra, at 60-61. Since 1963, section 609.165 has
been amended in only minor ways, which are not relevant to this appeal.
In general, a duly enacted statute is presumed to be constitutional. Fletcher Props.,
Inc. v. City of Minneapolis, 947 N.W.2d 1, 9 (Minn. 2020). Accordingly, an appellate court
should “exercise [its] power to declare a statute unconstitutional with extreme caution and
only when absolutely necessary.” Id. (quotation omitted). We apply a de novo standard
of review to a district court’s determina tion of the constitutiona lity of a statute. Id. In
addition, we apply a de novo standard of review to a district court’s grant of summary
judgment. Id.
I. Right to Vote
We begin by considering appellants’ argument that section 609.165 of the
Minnesota Statutes violates their constitutional right to vote in viola tion of article VII,
section 1, of the Minnesot a Constitution. Appellants 2 pleaded this theory as an

2While the appeal was pending in this cour t, respondent informed the court that
Caldwell and Jecevicus-Var ner had been discharg ed and had regained the right to vote.
Accordingly, respondent argues that their clai ms are moot. Appellants have not disputed
respondent’s factual represen tations and have not argued in writing that Caldwell’s and
Jecevicus-Varner’s claims are not moot. At oral argument, appellants’ counsel urged the
court to invoke the exception to the mootne ss doctrine for claims that are capable of
repetition yet likely to evade review. Appella nts’ counsel also acknowledged that the
claims of Caldwell and Jecevicus-Varner do not present any legal issues that are not already
presented by the claims of Schroeder and Darri s. Because there is no apparent benefit to
invoking an exception to the mootness doctrine, we conclude that the claims of Caldwell
and Jecevicus-Varner are moot, a nd we dismiss the appeal with respect to each of them.
See Housing & Redevelopment Auth. ex rel. C ity of Richfield v. Walser Auto Sales, Inc. ,
641 N.W.2d 885, 888 (Minn. 2002); In re McCaskill, 603 N.W.2d 326, 327 (Minn. 1999);

9
independent, free-standing claim and presented it to the district court in that manner. The
district court did not separately discuss the right-to-vote claim but nonetheless interpreted
article VII, section 1, in the course of its anal ysis of appellants’ other arguments. In this
court, appellants renew the arguments that they presented to the district court. At oral
argument, appellants’ counsel ar gued that article VII, section 1, should be interpreted to
mean that a felon’s civil rights are restored wh enever he or she is released from prison or
jail (or, presumably, sentenced to probation without any incarc eration in jail or prison).
Appellants’ counsel further explained that, gi ven such an interpretation of article VII,
section 1, a statute that does not restore ci vil rights until a later date, when a felon is
discharged, is inconsistent with article VII, section 1.
The premise of appellants’ argument—that th ey were “restored to civil rights” when
they were released from jail (in Schroeder’s case) or from prison (in Darris’s case)—is not
reflected in the text of article VII, section 1. There is no language in that section—or any
other section of article VII—that reasonably c ould be understood to mean that a felon’s
civil rights are restored by his or her releas e from incarceration or by being placed on
probation without any incarceration. Appellants’ argument effectively would require this
court to add words to article VII, sec tion 1, which we are unwilling to do. Cf. 328 Barry
Ave., LLC v. Nolan Props. Grp., LLC , 871 N.W.2d 745, 750 (Minn. 2015) (applying
statutory-interpretation canon that courts “cannot add words to an unambiguous statute
under the guise of statutory interpretation”).

In re Inspection of Minnesota Auto Specialties, Inc., 346 N.W.2d 657, 658 (Minn. 1984).
The appeal nonetheless remains justiciable with respect to Schroeder and Darris.

10
Appellants’ argument also is inconsistent with the meaning of the phrase “unless
restored to civil rights,” as that phrase is used in article VII, section 1. Appellants have not
identified any law in the hist ory of Minnesota that restor ed a felon’s civil rights
automatically upon release from incarceration. To the contra ry, it appears that, in the
territorial era and for more than a century thereafter, the civil rights of felons were restored
only by executive or legislative action, not merely by a felon’s release from confinement.
The phrase “unless restored to civil rights” first appeared in the voting laws governing the
Territory of Minnesota, which provided that the persons “permitted to vote at any election”
did not include “any person convicted of treason, felony, or bribery, unless restored to civil
rights.” Minn. Rev. Stat. (Terr.) ch. 5, § 2, at 45 (1851) (emphasis added). It appears that
no other provision in the territorial statutes provided for the restoration of civil rights. See
Minn. Rev. Stat. (Terr.) ch. 1-137. Such a provision likely was unnecessary because it was
understood that civil rights are restored by other means. In the debates of the 1857
constitutional convention,3 some delegates considered a draft that would have denied the
right to vote to persons convicted of treason or a felony with an exception that expressly
referred to a means of restoration: “ Provided, That the Governor or the Legislature may
restore any such person to civil rights.” The Debates & Proceedings of the Constitutional
Convention for the Territory of Minnesota 540 (St. Paul, G.W. Moore ed. 1858) (emphasis
in original). One delegate co mmented, “A pardon always re stores a person to his legal

3For historical background concerning the 1857 constitutional convention, see State
v. Lessley, 779 N.W.2d 825, 838-39 (Minn. 2010); Mary Jane Morrison, The Minnesota
State Constitution: A Reference Guide (2002); and William Anderson, Constitution of
Minnesota, 5 Minn. L. Rev. 407, 422 (1921).

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civil rights.” Id. The delegates in attendance agreed to retain the proviso, id. at 541,
although it was not retain ed in the version that eventually was ratified, see Minn. Const.
art. VII, § 1 (1857). Nonetheless, the deba tes demonstrate that delegates generally
understood that there were means by which a fe lon could be restored to civil rights, such
as a pardon by the governor or an act of the legislature.
Subsequent events confirmed the delegate s’ understanding. Ten years after the
constitutional convention, a law was enacted to a llow felons to be restored to civil rights
without a pardon. Specifically, a person who had completed a prison sentence without any
disciplinary violations could obtain a certific ate of good behavior fr om 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.” 1867 Minn. Laws
ch. 14, § 82, at 19. In 1887, a law was enacted to allow felons to be restored to civil rights
even if they had a disciplinary record in prison; it provided that, upon a prisoner’s release
from prison, “The governor may . . . in his disc retion restore such person to citizenship.”
1887 Minn. Laws ch. 208, § 16, at 334. In 1907, a law was enacted to provide that felons
who had been sentenced to jail or to a fine could be “restored to all their civil rights and to
full citizenship with full right to vote and hold office,” so long as the felon waited one year,
applied to a district court, produced three character witnesses, and proved “his or her good
character during the time since such conviction.” 1907 Minn. Laws ch. 34, § 1, at 40; see
also 1913 Minn. Laws ch. 187, § 1, at 238 (requiring only two character witnesses and
proof only of “general good character”). In 1911, a law was en acted to provide for
indeterminate sentences, “subject to release on parole and to final di scharge by the board

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of parole.” 1911 Minn. Laws ch. 298, § 1, at 413. That law also provided that, whenever
the parole board granted an “absolute release,” the board was required to “certify the fact
and the grounds therefor to th e governor, who may in his di scretion restore the prisoner
released to citizenship.” 1911 Minn. Laws ch. 298, § 7, at 415. In 1919, a law was enacted
to provide that felons who were sentenced to prison “may be restored by the governor, in
his discretion, to civil rights, upon certification to him by the judge, officer or board having
jurisdiction, custody or supervision of such person at the time such jurisdiction, custody or
supervision is terminated.” 19 19 Minn. Laws ch. 290, § 1, at 299. It appears that these
laws remained in force and effect until 1963, when the legislature enacted section 609.165
in conjunction with the comprehensive re vision of the state’s criminal code. See 1963
Minn. Laws ch. 753, art 1, at 1198.
In light of this history, it is apparent that, when the constitution was ratified in 1857,
it was understood that the restoration of a felon’s civil rights would occur in ways specified
by the executive or legislative branches. Contrary to appellants’ argument, there is no
reason to believe that the framers of the constitution understood the phrase “unless restored
to civil rights” to mean that a felon automatically would be restored to civil rights upon
being released from jail or prison. Appe llants have not identified any law from the
territorial era or the early years of statehood under which felons’ civil rights were restored
automatically upon release from incarceration.
4

4We note that, in the early 1970s, a sp ecial commission recommended that article
VII be amended in five ways, including the removal of the provision prohibiting felons
from voting. Minn. Cons titutional Study Commission, Final Report 24 (1973). The
commission stated that such an amendmen t would “allow greate r flexibility to the

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Appellants also contend that this c ourt should analyze the constitutionality of
section 609.165 with respect to article VII, section 1, by weighing the burdens placed on a
felon’s right to vote against the state’s interests in the policy reflected in the statute. They
cite Kahn v. Griffin, 701 N.W.2d 815 (Minn. 2005), in support of that argument. The Kahn
opinion was not concerned with the disenfranchisement provisions in article VII, section
1, or with section 609.165. See Kahn, 701 N.W.2d at 829-31. Rather, the Kahn opinion
was concerned with the rights of all qualified voters and the question whether those rights
were infringed by the timing of municipal elections in the City of Minneapolis. See id. at
829. Accordingly, the Kahn opinion is not relevant to our analysis. Appellants also cite
Minnesota Voters Alliance v. Ritchie, 890 F. Supp. 2d 1106 (D. Minn. 2012), for the same
purpose. But the court in that case considered a different argument: that article VII, section
1, of the Minnesota Constitution is in conflict with the United States Constitution. See id.
at 1115. The constitutional analysis in that case cannot apply to appellants’ argument that
section 609.165 is in conflict with article VII, section 1, of the Minnesota Constitution. It

Legislature in determining proper restrictions on the franchise rights of” felons and other
disqualified persons and would allow the legislature to “provide such safeguards or
qualifications as were felt necessary.” Id. But the legislature and the governor did not seek
to implement that recommendation; they prop osed other amendments to article VII but
proposed to retain the 1857 language that prohibits felons from voting “unless restored to
civil rights.” 1974 Minn. Laws ch. 409, art. 7, § 1, at 799-800. At the 1974 general
election, the voters ratified the amendments th at were proposed by the legislature and the
governor. Minn. Const. art. VII, § 1 (1974) There can be no doubt that the framers of the
1974 amendments to article VII (the legislat ure, the governor, and the voters) understood
that the restoration of a felon’s civil rights would occur automatically at the discharge of a
felon’s sentence because that means of restor ation was then clearly stated in section
609.165.

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appears that appellants are asking this court to reconsider the wisdom of article VII, section
1, itself. That we may not do.
Thus, section 609.165 of the Minnesota Statutes is not unconstitutional on the
ground that it violates the right-to-vote provisions in article VII, section 1, of the Minnesota
Constitution.
II. Right to Equal Protection
Appellants also argue that section 609.165 violates the equal-protection principle
arising from article I, section 2, of the Minnesota Constitution.
In Minnesota, a constitutional right to eq ual protection arises from a provision in
the first article of the state constitution, entitled “Bill of Rights,” which states, “No member
of this state shall be disenfranchised 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.” Minn.
Const. art. I, § 2. “The e qual protection guarantee in th e Minnesota Constitution places
limits on the circumstances unde r and extent to which the Le gislature can treat similarly
situated people differently.” Fletcher, 947 N.W.2d at 20.
Courts may analyze an equal-protection claim in various ways. Under a rational-
basis review, “a law . . . 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.” Id. at 19. But, in Minnesota, “a highe r standard of evidence” may apply— i.e., a
heightened form of rational-basis review—if “a statutory classification demonstrably and
adversely affects one race differe ntly than other races, even if the lawmakers’ purpose in
enacting the law was not to aff ect any race differently.” Id. (citing State v. Russell, 477

15
N.W.2d 886, 890 (Minn. 1991 )). The most exacting form of review—known as strict
scrutiny—applies if “a statutory classificat ion impacts fundamental rights or creates a
suspect class,” in which event the statute “i s subject to less deference and heightened
scrutiny by the courts.” Id. at 20.
Appellants make three alternative argumen ts in support of their equal-protection
claim. First, they argue that this court should apply strict scrutiny to their equal-protection
claim because their right to vote is a fundamental right. Second, they argue in the
alternative that, if a rational-basis standard a pplies, the heightened form of rational-basis
review should apply and, furthermore, the statute cannot satisfy that heightened standard.
Third, they argue, again in th e alternative, that if the or dinary rational-basis standard
applies, the statute cannot satisfy that standa rd of review. In his responsive brief,
respondent raises an additio nal issue: whether appellants have satisfied the threshold
requirement that they are similarly situated in all relevant respects to other persons who are
treated differently.
A.
Before addressing the parties’ arguments, we note that we must consider appellants’
equal-protection argument, which is based on article I, section 2, of the state constitution,
in light of the right-to-vote provisions in article VII, section 1, of the state constitution. As
the district court observed, it is article VII, section 1, of the state constitution—not section
609.165 of the state statutes—that disenfra nchises an otherwise qualified person from
voting if the person has been convicted of a felony, “unless” such a person has been
“restored to civil rights.” The district cour t also observed that the challenged statute is

16
beneficial to appellants inasmuch as it prov ides them with a mean s by which they may
automatically be re-enfranchised. We agree with the district court’s observations.
A person may challenge the constitutiona lity of a statute by asserting multiple
constitutional rights, each of which, if valid, would lead to the same outcome. For example,
in Cruz-Guzman v. State, 916 N.W.2d 1 (Minn. 2018), the plaintiff asserted a right to equal
protection based on article I, s ection 2, in conjunction with a right to an education based
on article XIII, section 1. Id. at 10-12. But in this case, multiple constitutional provisions
point toward different outcomes. We have interpreted article VII, section 1, to mean that
a person who has been convicted of a felony does not have a constitutional right to vote if
he or she has not been re stored to civil rights. See supra part I. As a consequence,
appellants’ equal-protection argument based on article I, section 2, is in conflict with their
right-to-vote argument based on article VII, section 1. Cf. Richardson v. Ramirez, 418 U.S.
24, 41-55, 92 S. Ct. 2655, 2665-71 (1974 ) (considering claim arising under Equal
Protection Clause in section 1 of Fourteenth Amendment in light of language in section 2
recognizing state felon-disenfranchisement laws).
The present situation is sim ilar to another part of the Cruz-Guzman opinion, in
which the supreme court considered the state’s counter-argument that judicial review was
precluded by the speech-or-debat e clause in article IV, se ction 10, of the Minnesota
Constitution. 916 N.W.2d at 12-13. The Cruz-Guzman court reasoned, “We interpret
constitutional provisions in light of each other in order to avoid conflicting interpretations.”
Id. at 13 (quotation omitted). The supreme c ourt continued by reasoning, “We decline to
interpret one provision in the constitution— the Speech or Debate Clause—to immunize

17
the Legislature from meeting its obligation under more specific constitutional provisions—
the Education, Equal Protection, and Due Process Clauses.” Id. (emphasis added). If we
were to find merit in appellants’ equal-protection argument in this case, we would need to
consider whether to resolve th e case according to the equal-pr otection principle in article
I, section 2, or the right-to-vote provision in article VII, section 1. We likely would do so
by reasoning that the right-to-vote provision in article VII, section 1, is “more specific”
than the equal-protection principle arising from article I, section 2, and, thus, that article
VII, section 1, must govern. See id. at 13; cf. Connexus Energy v. Commissioner of
Revenue, 868 N.W.2d 234, 242 (Minn. 2015) (applying statutory-interpretation canon that
specific provision prevails over general provision). But we need not consider that issue
because, for the reasons stated below, appellants’ equal-protection claim does not succeed
under the analysis prescribed by the equal-protection caselaw.
B.
As stated above, respondent argues that appellants have not satisfied a threshold
requirement applicable to all equal-protection claims. Under Minnesota law, it is necessary
to consider a “threshold question” before an alyzing an equal-protec tion claim: “whether
the claimant is treated differently from others to whom the claimant is similarly situated in
all relevant respects.” State v. Holloway, 916 N.W.2d 338, 347 (M inn. 2018) (emphasis
added) (quotation omitted). In other words, the first question is “whether the law creates
distinct classes within a broader group of similarly situated persons or whether those treated
differently by the law are suffi ciently dissimilar from others such that the law does not
create different classes within a group of similarly situated persons.” Fletcher, 947 N.W.2d

18
at 22. “When the claimant is not treated diff erently than all others to whom the claimant
is similarly situated, there is no equal protection violation.” Id.
Respondent contends that appellants are not similarly situated to persons who have
been discharged upon reaching the expiration of their sentences. Specifically, respondent
asserts that felons who still are serving a sentence “are subject to a host of legal restrictions
that do not apply to those wh o have completed their senten ces,” such as conditions of
release and the possibility of being reincarcerat ed. In reply, appellants contend that they
are similar to persons who have been disc harged because they are “living in the
community” and have “all of the rights, freedoms, and responsibilities relevant to voting.”
Respondent’s argument is an accurate re flection of the state statutes governing
probation, parole, and supervised release. A person who has been convicted of a felony
and has been released from jail or prison but not yet reached the expiration of a sentence is
subject to numerous restrictions on his or her freedom that do not apply to persons whose
sentences have expired. For example, all pe rsons on parole or s upervised release are
required to comply with nine standard conditions of release, including requirements about
maintaining contact with a supervising agen t, a prohibition on possessing firearms and
other dangerous weapons, an d a prohibition on leaving th e state without the written
permission of the supervising agent. See Minn. R. 2940.2000 (2019); see also Minn. Stat.
§ 244.05, subd. 3 (2020) (authorizing commissioner of corrections to make rules regarding
terms and conditions of release). Such persons also may be subject to “special conditions,”
such as “limits regarding contact with specified persons” and a requirement that the person
participate in non-residential or residentia l therapy or counseling programs. Minn. R.

19
2940.2100 (2019). In addition, the commiss ioner has discretion to place a person on
“intensive supervised release,” which ma y entail conditions su ch as “unannounced
searches of the inmate’s person, vehicle, pr emises, computer, or other electronic devices
capable of accessing the Internet . . . ; random drug testing; house arrest; daily curfews;
frequent face-to-face contacts with an assi gned intensive supervision agent; work,
education, or treatment requirements; and el ectronic surveillance.” Minn. Stat. § 244.05,
subd. 6(b). Similar restrictions may be, and often are, imposed on pe rsons on probation.
See Minn. Stat. §§ 609.135, .14 (2020).
Furthermore, if a person on supervised release violates any of the conditions
imposed on him or her, “the commissioner may . . . revoke the inmate’s supervised release
and reimprison the inmate for the appropriat e period of time.” Minn. Stat. § 244.05,
subd. 3(2). Similarly, a person who has been placed on parole “remains in the legal custody
and under the control of the co mmissioner, subject at any time to be returned to a facility
of the Department of Corrections . . . and the parole rescinded by the commissioner.”
Minn. Stat. § 243.05, subd. 1(b) (2020). In light of these provisions, there is no assurance
that a felon who has not yet been discharged will not be reincarcerated in the future. But a
felon who has been discharged no longer faces the possibility of being reincarcerated for
the same felony conviction.
Thus, appellants have not satisfied the th reshold requirement that they are similarly
situated in all relevant respects to persons who are treated differently. This is a sufficient
and independent basis for the conclusion that section 609.165 does not violate the equal-

20
protection principle arising from article I, section 2, of the Mi nnesota Constitution. See
Fletcher, 947 N.W.2d at 22; Holloway, 916 N.W.2d at 347.
C.
As stated above, appellants argue that th is court should apply strict scrutiny to their
equal-protection claim because their right to vote is a fundamen tal right. Respondent
contends that strict scrutiny does not apply because appellants’ equal-protection claim does
not implicate a fundamental right.
Strict scrutiny applies if “a statutory cl assification impacts fundamental rights.”
Fletcher, 947 N.W.2d at 20. Both the United St ates Supreme Court and the Minnesota
Supreme Court have held that, as a general matter, the right to vote is a fundamental right.
See Harper v. Virginia State Bd. of Elections , 383 U.S. 663, 670, 86 S. Ct. 1079, 1083
(1966); Kahn, 701 N.W.2d at 830; Erlandson v. Kiffmeyer, 659 N.W.2d 724, 730 (Minn.
2003); Ulland v. Growe, 262 N.W.2d 412, 415 (Minn. 1978); State ex rel. South St. Paul
v. Hetherington, 61 N.W.2d 737, 741 (Minn. 1953).
The district court reasoned that appellants do not have a fundamental right to vote
because they have been expressly disentitled by article VII, section 1, of the Minnesota
Constitution. The district court’s reasoning is consistent with that of the United States
Supreme Court, which has held that a state law that disqualifies felons from voting does
not violate the Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution. See Richardson, 418 U.S. at 53-54, 92 S. Ct. at 2670. The Richardson Court
reached that conclusion in part by referring to another provision in the Fourteenth
Amendment, which expresses approval of state felon-disenfranchisement laws. Id. at

21
53-54, 92 S. Ct. at 2670-71. The Court also referred to the fact that, at the time of the
adoption of the Fourteenth Amendment, many state constitu tions prohibited felons from
voting or authorized state legislat ures to enact su ch prohibitions. Id. at 48, 92 S. Ct. at
2668.
There is no caselaw on the que stion whether, as a matter of Minnesota law, a person
who has been convicted of a felony has a fund amental right to vote. But there is caselaw
describing the method of determining whether a right is a fundamental right. The supreme
court has stated, “A fundamental right is one th at is ‘objectively, de eply rooted in this
Nation’s history and tradition.’” Holloway, 916 N.W.2d at 345 (quoting Washington v.
Glucksberg, 521 U.S. 702, 720-21, 117 S. Ct. 2258, 2268 (1997)). In addition, the supreme
court has stated that “fundamental rights are those which have their origin in the express
terms of the Constitution or which are necessarily to be implied from those terms.” Skeen
v. State , 505 N.W.2d 299, 313 (Mi nn. 1993) (quotation and alteration omitted). An
individual seeking to apply strict scrutiny to a statute bears the burden of establishing that
the statute implicates a fundamental right. Holloway, 916 N.W.2d at 345.
Under either of the criteria described abov e, appellants cannot establish that section
609.165 implicates a fundamental right. There is no deeply rooted hi story or tradition in
Minnesota by which a person who has been conv icted of a felony has been assured of a
right to vote. See id. This is evident from the text of article VII, section 1, of the state
constitution, which was adop ted in 1857 and was retained in 1974 despite a
recommendation that it be eliminated. See Minn. Constitutional Study Commission, Final
Report 24 (1973). In addition, there is no such fundamental right “in the express terms of

22
the Constitution” or in a right “necessar ily to be implied from those terms.” See Skeen,
505 N.W.2d at 313. To the contrary, the express terms of article VII, section 1, of the state
constitution provide that a person who has been convicted of a felony does not have a right
to vote.
Thus, the district court properly ruled that appellants’ equal-protection claim does
not implicate a fundamental right. Accordingly, strict scrutiny does not apply.
D.
As stated above, appellants argue in the a lternative that, if strict scrutiny does not
apply, a heightened form of rational-basis re view applies. Respondent contends that
heightened rational-basis review does not apply because section 609.165 does not cause
racial disparities.
In Russell, the supreme court articulated a rational-basis test for some equal-
protection claims based on the Minnesota Constitution. 477 N.W.2d at 888. The Russell
court explained that, under a he ightened form of rational-basis review, Minnesota courts
are “unwilling to hypothesize a rational basis to justify a classifi cation, as the more
deferential federal standard requires” and instead “require[] a reasonable connection
between the actual, and not just the theoretical, effect of the challenged classification and
the statutory goals.” Id. at 889. The Russell court further explained that the heightened
rational-basis test was “particularly appropr iate” in that case because “the challenged
classification appears to impose a substantially disproportionate burden on the very class
of persons whose history inspired th e principles of equal protection.” Id. The supreme
court recently stated that the heightened rational-basis test articulated in Russell applies if

23
“a statutory classification demonstrably and a dversely affects one race differently than
other races.” Fletcher, 947 N.W.2d at 19.
In this case, the prer equisites identified in Fletcher for application of the heightened
rational-basis test are not satisfied. The only statutory classification in section 609.165 is
the distinction between felons who have been discharged a nd felons who have not been
discharged. That statutory classification does not “adversely affect[] one race differently
than other races.” See id. As respondent asserts, “Section 609.165 automatically restores
voting rights to all pe ople with felony convictions when they complete their sentences,
regardless of race.” There is no evidence in this case that the statute’s racially neutral
criterion has been applied differently based on race. In every racial category, all persons
who are discharged are re-enfranchised upon discharge by operation of section 609.165,
subdivision 2.
Thus, the district court properly ruled that the heightened rational-basis test does not
apply. Accordingly, ordinary rational-basis review applies.
E.
As stated above, appellants contend in the alternative that, even if the ordinary form
of rational-basis review applies, the statute does not have a rational basis.
A state statute has a rational basis for pur poses of a constitutional challenge if it is
“a rational means of achieving a legislative body’s legitimate policy goal.” Fletcher, 947
N.W.2d at 19. Respondent asserts that the ge neral purpose of the statute is to effectuate
the policy reflected in the co nstitution, which disqualifies felons from voting “unless
restored to civil rights.” Minn. Const. art. VII, § 1. Respondent fu rther asserts that the

24
legislature chose to accomplish that goal by automatically re-enfranchising felons upon the
expiration of sentence, a point in the criminal -justice process at which “debts to society
have been satisfied and there is no further criminal sanction for the conviction” and the
person “is no longer under correctional supervision and the state has a clear interest in fully
rehabilitating the person into the community.”
The legislature’s policy choice as to how and when a felon should regain the right
to vote was a rational choice. We assume that the legislature in 1963 generally agreed with
the reasons stated by the commission reco mmending a comprehensive revision of the
state’s criminal code. The commission expre ssed the view that automatically restoring
civil rights upon the expiration of a senten ce would be “desirable to promote the
rehabilitation of the defendant and his return to his community as an effective participating
citizen” and to “remov[e] the stigma and disqualification to active community participation
resulting from the denial of his civil rights.” Proposed Minnesota Criminal Code, supra,
at 42, 61. The expiration of a criminal sentence is a rational time to restore a person’s right
to vote, in part because it is the time past which the person no longer may be reincarcerated
for a felony conviction. See supra part I.B. The commission also recommended the
automatic restoration of civil rights as an a lternative to the then-e xisting process that
required felons to apply to the governor, who tended to approve the applications as a matter
of course. Proposed Minnesota Criminal Code, supra, at 42. The automatic restoration of
civil rights is rational because it is admini stratively efficient in that it avoids time-
consuming, case-specific determ inations of rehabilitation. See Fletcher, 947 N.W.2d at
28-29. Furthermore, the justifications stated by respondent have been validated by courts

25
in other jurisdictions in cases involving equal-protection challenges to similar state statutes.
See Jones v. Governor of Florida, 975 F.3d 1016, 1034-35 (11th Cir. 2020) (holding that
Florida statute restoring felons to civil rights after completion of sentence satisfies rational-
basis test); Harvey v. Brewer, 605 F.3d 1067, 1078-80 (9th Cir. 2010) (holding that Arizona
statute restoring civil rights upon completion of sentence satisfies rational-basis test);
Owens v. Barnes , 711 F.2d 25, 27-28 (3d Cir. 1983) (holding that Pennsylvania statute
disenfranchising incarcerated felons but not felons on release does not violate Equal
Protection Clause); Madison v. State , 163 P.3d 757, 771-72 (Was h. 2007) (holding that
Washington statute restoring civil rights up on completion of sentence satisfies rational-
basis test).
Thus, the district court did not err by co ncluding that section 609.165 has a rational
basis. Therefore, section 609.165 of the Minnesota Statutes is not unconstitutional on the
ground that it violates the equal-protection principle arising from article I, section 2, of the
Minnesota Constitution.
III. Right to Substantive Due Process
Appellants also argue that section 609.165 violates the due-process clause in article
I, section 7, of the Minnesota Constitution.
“[N]o person shall . . . be deprived of lif e, liberty or propert y without due process
of law.” Minn. Const. art. I, § 7. The du e-process clause gives rise to substantive
protections as well as pr ocedural protections. See State v. Hill , 871 N.W.2d 900, 906 &
n.5 (Minn. 2015). Under the doctrine of s ubstantive due process, a statute is not
unconstitutional if “the objective of the law is permissible, the means chosen to achieve

26
that objective are reasonable, and the legislative body did not act arbitrarily or capriciously
in enacting the law.” Fletcher, 947 N.W.2d at 10. Th e party challenging the
constitutionality of a statute bears the burden of proving that the statute violates the
doctrine of substantive due process. Id. at 11.
Section 609.165 satisfies each part of this three-part test. First, the objective of the
law is permissible because it is “within the power of the g overnmental decision maker to
enact and serves a public purpose.” See id. at 10. There is no dis pute that the legislature
was authorized to enact a statute to provide for the restoration of felons’ civil rights.
Second, the means chosen to achieve the legislature’s objective are reasonable
because the legislature “could rationally believe that the me chanism it chose would help
achieve the legislative goal or mitigate the harm the legislation seeks to address.” See id.
As stated above, the legislature sought to provide a simplified means of restoring civil
rights and reasonably chose to do so no later th an the expiration of a criminal sentence,
which marks the completion of a felon’s punishment. The legislature chose to restore civil
rights automatically at discharge instead of re quiring felons to apply for restoration. See
Proposed Minnesota Criminal Code, supra, at 42.
Third, the legislature did not act arbitr arily or capriciously in enacting the law
because it “emerged from a reas oned, deliberative process, ra ther than as a result of
legislative chance, whim, or impulse.” See id. As described above, the legislature adopted
the recommendation of a statutorily authorized commission, which had been charged with
revising the state’s criminal code, and th e reasons for the commission’s recommendation
were well explained in the commission’s report. See supra part II.E.

27
Thus, the district court did not err by concluding th at section 609.165 is not
unconstitutional on the ground that it violates the due-process clause in article I, section 7,
of the Minnesota Constitution.
DECISION
Subdivisions 1 and 2 of section 609.165 of the Mi nnesota Statutes are not
unconstitutional on the ground that they violate the right-to-vote provisions in article VII,
section 1, of the Minnesota Constitution; the equal-protection principle arising under article
I, section 2, of the Minnesota Constitution; or the due-process clause in article I, section 7,
of the Minnesota Constitution.
Affirmed in part and dismissed in part.