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AGO 1952 No. 407 - September 26, 1952
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Smith Troy | 1941-1952 | Attorney General of Washington

VOTING BY PENITENTIARY INMATE.

 An inmate of the penitentiary convicted of a felony is not eligible to vote for the president, senator or congressman.

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                                                              September 26, 1952 

Honorable Murray E. Taggart
Prosecuting Attorney
Walla Walla County
Denny Building
Walla Walla, Washington                                                                                                              Cite as:  AGO 51-53 No. 407

 Dear Sir:

             Receipt is acknowledged of your letter of September 19, 1952, in which you request whether an inmate of Washington State Penitentiary who has been convicted of a crime of forgery is entitled to vote at the national election for president, United States senator and United States congressman.

            It is our conclusion that an inmate of a penitentiary who has been convicted of a felony and has not been pardoned, is not entitled to vote for president, United States senator and United States congressman.

                                                                     ANALYSIS

             Our State Constitution in Article VI, § 3, provides:

             "All idiots, insane persons, and persons convicted of infamous crime unless restored to their civil rights, are excluded from the elective franchise."

             Our legislature has defined an infamous crime in RCW 29.01.080 (§ 3054, Code of 1881; Rem. Rev. Stat. § 5113).  The definition is as follows:

              [[Orig. Op. Page 2]]

            "An 'infamous crime' is a crime punishable by death or imprisonment in the state penitentiary."

             Thus, by our constitution, one who has been convicted of a crime for which he is imprisoned in the state penitentiary is disqualified from the elective franchise in this state.  As such he would not be eligible to vote for state officers, including the office of state legislator.

             The Federal Constitution in § 2, Article I, defines the qualifications of persons who may vote for representatives in Congress.  The pertinent language of that section is as follows:

             "The house of representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature."

             The qualifications of electors for United States senator are prescribed in the Seventeenth Amendment to the Federal Constitution in section 1, the pertinent language of which is as follows:

            "* * * The electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature."

             In electing the president of the United States the vote is not cast directly for the candidate but rather for presidential electors.  Under Article II, § 1 of the Federal Constitution, the state legislature is authorized to prescribe the manner of choosing presidential electors.  That section reads:

             "Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of senators and representatives to which the state may be entitled in the congress; * * *"

             Pursuant to that authority the State of Washington has prescribed that electors shall be chosen by popular vote.  The pertinent statutory provisions will be found in chapter 29.71 RCW (chapter 148, Laws of 1891; RRS § 5138, et seq.).  There  [[Orig. Op. Page 3]] is nothing in either the state or federal constitution that would make the qualifications of voters casting ballots for presidential electors any different from those casting ballots for other offices to be filled under the authority of the state.

             It is, therefore, our opinion that section 3, Article VI, of our state constitution disqualifies from the elective franchise persons in the penitentiary who have been convicted of any felony.  Since first degree forgery is a felony, the person about whom you inquire is not qualified to cast a ballot either for state or federal office.  Such a person does not meet the qualifications for an elector for the most numerous branch of the state legislature and the fact that he is serving in the penitentiary is conclusive evidence that he has not been pardoned of the crime for which he was convicted and consequently his political rights have not been restored.

 Very truly yours,
SMITH TROY
Attorney General

LYLE L. IVERSEN
Assistant Attorney General

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