Rock the Vote

Shortly before the 2004 presidential election, Dale Schwartz decided to register to vote.

"It was a big election, and everyone was stressing how important it was," says Schwartz, a Phoenix resident. "Honestly, I just had had enough of Bush."

Alas, the bill collector, now 55, didn't get his way, as the president squeaked to victory over John Kerry.

Then, in early 2005, Maricopa County's jury commissioner sent Schwartz a notice to appear for jury duty — unless he had a bona fide excuse.

Schwartz's response to the commissioner did, indeed, get him out of serving as a juror. Turns out, he's a felon. In 2002, he was convicted of ripping off the State of Arizona for about $5,000 by taking unemployment benefits while he was still working. Schwartz didn't serve any time for his crime, just repaid the government, did some community-service work, and served probation.

But now he may face five years in prison. His crime? Voting.

In the state of Arizona, it is illegal to vote if you are a convicted felon still on probation, which Schwartz was. And so, under County Attorney Andy Thomas' zero-tolerance regime, prosecutors have been pursuing two felony charges against Schwartz since a grand jury indicted him in early 2006.

In addition to failing to disclose his conviction when he registered to vote, Schwartz made the mistake of admitting his status as a felon whose "civil rights have not been restored" on the jury-summons form.

The latter not only kept him from serving on a jury, but alerted elections officials to his status as an illegal voter.

Those officials later sent Schwartz's name over to the County Attorney's Office. "We routinely will send over the names of people who come up on our radar screen for illegally voting," says county elections chief Karen Osborne.

Prosecutors assigned an investigator in the summer of 2005 to check out Schwartz. That investigator, Cave Golding, wrote in a report that Schwartz told him he'd believed he could vote because he hadn't served any time in prison.

"I pointed out that he had signed one form saying he was not a convicted felon and the other saying he was," investigator Golding wrote, "and told him that he couldn't have it both ways, and he said, 'I can appreciate that — I just don't know how it works.'"

Schwartz then asked the investigator if he'd committed a crime.

The answer to that came when Tophas Anderson, a prosecutor in Andrew Thomas' office, convinced a grand jury to indict Schwartz on two felony counts.

Anderson then alleged in early 2006 that Schwartz had committed the felonies while on probation, which he had been until July 2005.

The upshot is, if Schwartz is convicted at trial, a judge will have no choice but to sentence him to a minimum of five years in prison.

According to Schwartz and his attorney, Laurel Workman, he has rejected a plea-bargain offer that would have meant a three-month prison term.

"They have a strong case legally, whether we like it or not," says Workman. "But my clients have the right not to accept a deal if they feel it's the right thing to do."

That's precisely what Schwartz says he feels.

"No one ever told me the law about this," he says. "I just can't accept pleading guilty to something I didn't know about."

It's uncertain how many people have been prosecuted in Maricopa County for illegally voting. Anecdotally, Schwartz says he has heard of one woman who allegedly now is serving a year in prison, but couldn't provide a name.

"I know that we have done a number of prosecutions of both noncitizens who voted illegally and of convicted felons," says office spokesman Barnett Lotstein. "Our position is that having confidence in the integrity of the electoral system is a very serious matter."

Lotstein says he doesn't know how many of those charged with voting illegally have been convicted, or what sentences they may have received.

Debate about restoration of voting rights has been on the front burner, nationally and in Arizona, especially since the 2000 presidential election, in which Bush took office by virtue of his tainted win in the state of Florida.

In that election, about 620,000 ex-felons who had completed their prison sentences were disenfranchised under Florida law.

Voting experts, including Sasha Abramsky, author of the book Conned, have concluded that the inability of ex-felons to vote in Florida cost Al Gore a mandate in that pivotal state (the thinking is that ex-cons tend to vote Democratic more than Republican).

Just a few weeks ago, a Florida legislator introduced a bill that would automatically restore voting rights to felons once they've finished serving their sentences. (Now felons must appeal to that state's clemency board to restore their rights, a process that can take years.)

After the 2004 election, five Wisconsin residents were charged with illegal voting in that state, which John Kerry won by a scant 11,000 votes. Three of those people were accused of voting while on felony probation or parole (including a woman working as, amazingly, an election inspector), while the others faced charges of voting multiple times.

According to media reports, none of those convicted in Wisconsin (the jury hung in at least one of the cases) was sentenced to prison.

The Sentencing Project, a Washington D.C. advocacy and reform group, reports that about 176,000 people currently are disenfranchised in Arizona because of their status as ex-felons.

Current law in Arizona makes it very difficult for many convicted felons ever to vote again.

If a person has been convicted of a single felony, the right to vote is automatically restored once the sentence is complete. That includes paying any fines or restitution, and completing probation.

But if that person has been convicted of two or more felonies (even in the same underlying case), he or she must petition the presiding judge in whatever county the crimes occurred. If the person did any prison time, he or she can't even apply for restoration of voting rights until two years after completing everything to do with that sentence.

And then, there's no guarantee a judge will grant the petition.

Arizona is more conservative than even Texas. In 1997, Texas' then-governor George W. Bush signed a bill eliminating that state's two-year waiting period before felons could regain the right to vote.

All of that is of little consequence or solace to Dale Schwartz, who says he is suffering from deep depression over his current plight.

Last month, he spent a few days in the county jail after he failed to appear for a pretrial hearing at Superior Court.

"I just can't believe this," Schwartz says. "There is no personal gain to voting. No one bought my vote or told me to vote. I just wanted to vote because I couldn't take Bush anymore. While I was in jail, one of the COs [correctional officers] called me aside and said to me, 'What the hell is this all about, illegal voting?'"

Schwartz manages a little joke about the whole unfortunate affair.

"Maybe they'll throw away the key on me," he says. "After all, God forbid, I might try to vote again someday."

Then he gets serious.

"Not in this lifetime."