Gaskin v State

Gaskin v. State

A Memoir for Voices from The Farm

When I first got to The Farm in the Fall of '72, one of the first jobs I had, after the sorghum was harvested, was handling the appeal to the United States Supreme Court of the four men arrested for growing marijuana on the land where the caravan camped. After that case the Farm once again had little use for a lawyer, so I worked at various jobs: horse farming, mason, scrap wrecker, flour miller, book salesman, typesetter, graphic artist, off-the-Farm day laborer, whatever came along. In the late 70s I found myself back before the Supreme Court for Plenty and the Catfish Alliance, fighting TVA's nuclear plants. Then one day Stephen came to me with a letter he had received from the County Registrar of Voters.

Stephen needed a lawyer.

The letter said his voter registration had been revoked and he needn't bother to re-apply. Because of his felony conviction for growing marijuana, he was forever disenfranchised in the State of Tennessee.

The law that disenfranchised more than 180,000 voters in Tennessee (you didn't have to have broken a Tennessee law, any state would do) was designed to rid the State prisons of those nasty ballot boxes that showed up every few years and had some small influence in local elections, such as for county sheriff. But in making the law retroactive, it appeared to me that the legislature had overstepped its authority. It's called "ex post facto."

However, when a case challenging the constitutionality of the law was brought in Federal Court, the State won, because "ex post facto" only protects prisoners from increased penalties after the crime is committed, and federal doctrine says that State regulation of the ballot box is not a penalty, just good government. Collins v. State.

The Collins case seemed at first glance to doom Stephen's constitutional claim, but never say never.

As I went to the State archives, I found a little known section in the State Charter about voting rights. As history would have it, after the Civil War, Tennessee became a military-occupied zone, the Union party elected all the officials, and anyone who had served in the Army of the South or had voted during secession was forbidden from exercising their vote again. A constitutional convention was called and the delegates, many of them disenfrancisees, inserted a clause prohibiting the loss of the vote for crimes or civil offenses which were perfectly legal when committed. We had our case.

When the day came for arguments at the State Supreme Court, it did not begin particularly auspiciously. Stephen, who always had a car, was away on a speaking tour. I had been given, or acquired, a succession of vehicles from outside donors for my antinuclear work, but the pattern was always the same: when I'm not using my car, it got dispatched, and usually within a month it was a total wreckãhit a tree when experimenting with hand controls for a paraplegic and the accelerator stuck; rolled down an embankment when the emergency brake was left off; didn't check the oil and blew the engine. The legal crew's current car was in the pool, waiting on parts. None of the rest of the crew was available to come with me, so I was on my own. I had arranged for the use of another vehicle which was to be waiting for me at 8 am, ready to go to Nashville.

At 7:30 am I had my suit laid out: a nice denim three-piece that Suzanne had made for court cases, which I called my Suit of Lights. My briefcase was packed, my arguments memorized. I had a few chores still - rinse the sprouts, take out the compost and the recyclables - then I could go. No sooner had I started on the sprouts then the unimaginable happened, a "rapid disassembly" as they say in the nuclear trade. As I put the sprout jar back up on the drain rack, the rubber band holding the cheesecloth broke, spewing sprouts all over the floor. Aaaaarg! Not only would there be no sprouts, but now I had to clean up the mess, and start a new batch. When I got to the appointed rendezvous, panting, my suitbag over my shoulder, it was 8:15, and the car was gone. They figured I didn't need it. I did a "Farming Crew Salute" (with the palm of the hand striking the forehead in a brisk, curving, upward motion, like "I walked 3 miles to get to this field and forgot my hoe") and headed for the Gate, considering my options.

I lucked out and caught a ride to the Gate, arriving there by 8:25, 95 minutes before court, 75 miles away. I had at most 20 minutes to find a fast ride and I lucked out, because here came The Farm Ambulance crew, on its way to work with Angel One, the neonatal emergency team at Vanderbilt Hospital. Angel One used a helicopter, but the team had to be in Nashville to access it. No matter, I had my fast ride. While we drove, I put on my suit. The crew dropped me off on the sidewalk outside the Supreme Court with 15 minutes to spare. They knew how to drive.

Inside, there was my name on the printed docket, first in the line of oral arguments. In some of our other cases I had had a full support crew, the band bus, printed news releases, press conference on the steps, radio techs scanning the newser crews and police frequencies to get a feel for the city, and a gallery full of brightly colored tie dies and bib-tops. I was just as happy to play this one low key, but the fact was, the halcyon days of our youthful exhuberance were past. The rest of our legal crew was out tree-planting to make the basic budget. I didn't even have lunch money.

I took my seat at the appellee table. Usually there would be several lawyers seated, perhaps some paralegals directly behind with boxes of papers. I opened my briefcase and removed the slim appellate briefs.

A black man dressed in a white waiter's jacket entered and said "All rise" and the five elderly all-white male justices in black robes filed in and took their seats. The black man presented a large ledger for each Justice to sign, walking from one to another in order of seniority. Then he took up his position by the door of the chambers and the Senior Justice called for the first case. "Gaskin versus State," the clerk said, loudly.

The Attorney General arose from a group of several men in black suits seated at the appellant's table and moved to the podium. I listened attentively, but found myself being amused that the State really had no serious argument, apart from the emotional one about prisoners being allowed to vote. At one point the argument seemed to almost concede the constitutional point and went on in such a ridiculous vein that I had to surpress a guffaw, but let a quiet chortle slip. Clerks and Justices looked over at my table disapprovingly. I tried to look down at my desk and shuffle papers, ashamed that I hadn't been more graceful and trying to remember it ain't over 'til the fat Justice sings.

When I got my turn I gave the Justices an analogy. Suppose Mr. Gaskin had been a bugler boy in the Confederate Army, I said. Here he is in 1980, 126 years old, and the State Legislature in its infinite wisdom decides to once more punish confederates by removing their vote. How is that circumstance any different in a constitutional sense than what the Legislature has just done, stigmatizing all felons. If the crime did not carry disenfranchisement as a penality when it was committed, it cannot have it imposed later.

Afterwards I told my friends I could barely believe I had won a case by wrapping myself in a confederate flag and whistling Dixie, but yes, we won a unanimous decision that day. It was the first time that part of the State Constitution had been challenged in more than a century, and later the inmates of the State Penitentiary brought me out for an award ceremony and presented me with a plaque as a token of their appreciation.

My biggest concern as I rode home with the Angel One crew was how I would face the others in my household and explain why there were no sprouts for dinner. They really wouldn't care about what happened in Nashville. What would matter is how I blew the sprouts.