Voter Lockdown - John Kennedy O'Hara

November 3, 2008
Prosecuting Voters
Voter Lockdown

By JOHN KENNEDY O'HARA

Thirteen campaign workers for Barack Obama in Ohio, including spokeswoman Olivia Alair, signed a letter on October 24th asking the Franklin County Board of Elections to pull their names from the voter rolls. One Obama staffer in Ohio told me, “We’re pretty nervous about this.” The concern was prompted by a warning from prosecutor Ron O’Brien, the elected county district attorney and a Republican, urging new Democratic voters to “examine your conscious” before filing their registration cards.

Meanwhile, CNN announced that at least a dozen states are investigating allegedly fraudulent voter registrations among the flood of new registrants. Most of these are arrivals to the Democratic Party. Election officials nationwide estimate that 30 percent of the 1.3 million newly registered Democratic voters brought in by ACORN, an outreach organization based in poor communities, have been rejected. The source of most of these disputed registrations is a simple one – and very dangerous. The problem, allege prosecutors and election officials, is residence: Many of these “new” voters have simply moved to a new home.

This may sound benign, but when a prosecutor warns you to “examine your conscious,” what it means is that the prosecutor will examine you. And when he talks about questioning the validity of your voting residence, what it really means is you might be going to jail for voting. I know this all too well from personal experience.

On October 21, 1996, I was indicted by the district attorney in Brooklyn, New York, on seven felony counts of what was deemed false registration and illegal voting. The first count was when I registered to vote in 1992. Count two was that the address on my registration was not my “principal and permanent residence” – the language of the bizarre New York State voter residence law. And the remaining five counts were the votes I cast in each of the elections and primaries over the following year. Each count was a class E felony carrying a penalty of one to four years in prison. I did not vote twice in the same day, nor did I vote from a sham address. Nonetheless, I was facing 28 years in prison for voting. The last felony case to be successfully prosecuted in New York for false registration and illegal voting took place in 1873, in Rochester, New York. The defendant in that case was Susan B. Anthony.

The genesis of my alleged crime was that in 1992 I registered to vote and voted from my ex-girlfriend’s house in Brooklyn, which is fourteen blocks from where I currently live. The jury was asked to examine my life, over a twenty year period, to determine if the place I lived in for one year, four years earlier, was my “principal and permanent residence that I always intended to return to.” I have lived in the same neighborhood in Brooklyn my entire life.

Every aspect of my personal life was now subject to investigation – meaning every check, credit card slip, tax return for the past 20 years was examined by the Brooklyn district attorney. My apartment, my campaign headquarters, houses of my relatives were put under surveillance.

With over a million registered voters in Brooklyn, you may be wondering why I was targeted in this Kafkaesque effort. I was 35 years old at the time; not once in my life was I ever in trouble with the law. The explanation is not much different than why prosecutors are targeting Obama campaign staffers in Ohio: It was my political activity. I had been a candidate for office on five separate occasions taking on entrenched incumbents, but what triggered the prosecution was an event that happened six weeks before my arrest.

On September 10, 1996, primary day in New York State, the voting machines were delivered late throughout selected polling places in Brooklyn. This was no accident, and tens of thousands of people were denied their chance to vote. The late machines affected the outcome of a judicial race that the district attorney’s chief of staff was managing. When I saw what happened I had to act. I immediately filed an action in federal court and successfully got a continued election. There was a last-minute appeal by the party bosses, and the US Court of Appeals cancelled the continued election hours before the polls were to open.

My attorneys and I planned an emergency application to the U.S. Supreme Court when I was suddenly indicted and arrested for illegal voting. I had stood up for other people’s right to vote – and now I was going to be made an example of. It worked. When you are in lockup waiting to be arraigned on seven felony counts, your priorities quickly change.

The case of People v. O’Hara spiraled into one of the most expensive criminal cases in New York history. The case even made it into the pages of Harper’s Magazine and was the subject of hundreds of articles in the mainstream dailies. I would soon become the first person in Brooklyn ever tried three times on the same charge. The first trial was reversed on appeal, the second trial resulted in a hung jury, and in the third trial I was convicted again. What followed were more than a dozen appeals with split decisions. The appellate courts in New York viewed the case as one of “first impression,” meaning there had never been a criminal prosecution where someone had to pledge allegiance to one residence for an indefinite period of time.

Ultimately I was spared prison. My sentence was to be confined by probation for five years, fined $20,000, ordered to perform 1,500 hours of community service, and since I was now a convicted felon, I was disbarred as an attorney and lost my livelihood.

New York’s highest court, the State Court of Appeals, realized the danger of prosecuting voters when a minority on the bench dissented in my case in a 5-2 decision during 2001 that ultimately upheld my conviction. The dissenting opinion stated:

If politically-charged disputes such as this and questions of “residence” are going to be resolved in the criminal arena and decided by juries, with the possibility of criminal conviction and incarceration, we would ensure that the definition of residence is plainly fixed and easily understood.

The problem, of course, is that under New York State law the definition of residence just doesn’t make sense. It flatly cancels out the right to vote of anyone who can’t pledge allegiance to a single residence. This includes those who are homeless or living in homeless shelters; it includes students living temporarily in dormitories. It might even include wealthy homeowners who maintain two or three residences – which one of the mansions is “principal and permanent”? The statutory definition of a residence in Ohio disturbingly echoes the language in the New York State election law under which I was prosecuted. A residence in Ohio must be that which is “fixed and to which whenever the person is absent, the person has the intention of returning.” As in New York, the penalty for violating the law is draconian: It’s a felony punishable by one year in prison and a $2,500 fine. There’s another, perhaps more disturbing, catch in the Ohio fine print: If you vote from a claimed residence, but abandon that residence within the statute of limitations – typically five years – then you can be prosecuted, years later, for violating the law. This explains in part why the dozen Obama campaign staffers folded like an accordion on October 24.

Prosecuting people for their political activity is not a novel concept; we just don’t want to believe it happens in America. But what’s happening in Franklin County, Ohio, is an example of why it is necessary to have a prosecutor on your side to silence dissent. The prosecutor, after all, is the key to locking people up. Make no mistake, this is about suppressing turn-out, keeping the vote down, which is the common goal of all incumbent politicians. An elected district attorney, like O’Brien in Ohio, is no different than any other politician. Prosecutors exist by pleasing the party bosses, who help keep them in office, and, yes, they do have the perfect platform to keep voters out of the booth.

In the big picture, new voters mean change, and when do incumbents want change? Voter turnout has consistently declined year after year, which is no accident. It is accomplished through gerrymandering when re-apportionment comes around after each census, and also, as it happens, by the expansion of the prison industrial complex. Since 1990, the American prison population has gone from 800,000 to 2 million. Politicians fight to get those prisons in their districts. The reason is obvious: prisoners count as constituents, but they are not allowed to vote. This is every politician’s dream come true: a district full of people who can’t vote.

Getting locked up for voting happened to me, it is happening in Ohio – and it can happen to you. We have more people in prison than any country in the world. So we should pause before venturing down that slippery slope of prosecuting people for pulling the lever on election day.

John Kennedy O’Hara is no longer a disbarred lawyer, but as of this writing, is still a convicted felon living in Brooklyn, and has applied for a pardon from New York Governor David Paterson. His on-line petition to the governor’s office can be found at freejohnohara.com.