Voters As Convicts

The state Court of Appeals is supposed to be a last refuge for victims of injustice. More often than not, a court historically, if not recently, noted for its bold interpretation and enforcement of the law has been just that. But not on June 11, 2001. That day, the court let stand, by a 5-2 vote, the felony conviction of a Brooklyn man for the rarely prosecuted crime of illegal voting.

John Kennedy O'Hara, a political activist to this day, voted, certainly. For the longest time, Mr. O'Hara, now 41, was especially proud that he had not failed to vote in a single election since he came of the legal age of 18. In 1996, however, he was arrested, and then prosecuted by Brooklyn District Attorney Charles Hynes' office over what would seem to be the innocuous matter of which legal address he should have used when he registered to vote.

Mr. O'Hara, a fierce critic of Mr. Hynes and the Brooklyn Democratic organization, had switched his voting address in 1992 - from his own apartment on 61st Street in Brooklyn to an apartment on 47th Street where he often stayed with his girlfriend at the time. Like so many members of the political class he likes to challenge, Mr. O'Hara was maintaining two addresses. In the various elections of 1992 and 1993, Mr. O'Hara voted from 47th Street a total of five times.

For that, Mr. O'Hara was convicted of seven felony counts of illegal voting and false registration, disbarred as a lawyer, fined $20,000 and ordered to perform 1,500 hours of community service. He still works one day a week cleaning up garbage along a Brooklyn parkway.

There are, of course, countless problems with applying justice in this way. Prominent among them is that New York's famously arcane election laws are so unclear in their definition
of residency. As Judge Albert Rosen blatt put it in his stern dissent to the Court of Appeals' decision against Mr. O'Hara, "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 should ensure that the definition of residence is plainly fixed and easily understood."

Judge Rosenblatt took special note of the fact that 31 years ago, the Court of Appeals found that Albany lawyer John Holt-Harris was in compliance with the same residency laws when he ran for a city judgeship from an address where he recalled eating and sleeping only once in seven years.

Ah, the historical company Mr. O'Hara keeps. The only other person known to stand convicted of a similar crime in New York was Susan B. Anthony, at the start of the women's suffrage movement in 1876.

It's daunting to so much as wonder what will happen to voter participation when the word goes forth that doing so, and doing so responsibly, can invite criminal prosecution.

As it happens, Mr. O'Hara has one more day in court. His ongoing community service requirement makes him eligible to have an appeal heard under feral habeas corpus statutes. U.S. District Court Judge John Gleeson will hear arguments in his case Jan. 31. It is within Judge Gleeson's power to overrule the highest court in New York and set aside Mr. O'Hara's conviction.

In the name of justice, and in the interest of democracy, we hope that he does just that.

It's become common for criminal defendants to ask upon being cleared where they go to get their reputations back. Mr. O'Hara, we suspect, will be happy simply to get his life back.