Voting and vice: criminal disenfranchisement and the Reconstruction Amendments.

• Author: Re, Richard M.

INTRODUCTION I. THE IRONY OF EGALITARIAN DISENFRANCHISEMENT A. Formal Equality in Reconstruction B. The Thirteenth Amendment C. The Fourteenth Amendment 1. Section 2 2. Section 3 D. The Reconstruction Acts E. The Fifteenth Amendment II. THE LAW OF CRIMINAL DISENFRANCHISEMENT A. Originalism and the "Affirmative Sanction" B. The Meaning and Scope of "Other Crime" C. The Case for (and Against) Implied Repeal D. Construing the Voting Rights Act CONCLUSION: VOTING, VALOR, AND VICE INTRODUCTION

The United States disenfranchises approximately five million of its citizens for crime. (1) Most of these individuals committed felonies, but some states disenfranchise misdemeanants as well. (2) These practices make America a global outlier. (3) In many other democratic nations, recent political and legal debates have centered not on whether released offenders should be afforded the right to vote (they already have that right), but rather on whether prisoners convicted of serious crimes should be able to vote during their terms of incarceration. For example, the Grand Chamber of the European Court of Human Rights ruled in 2005 that the United Kingdom could not automatically disenfranchise convicts serving custodial sentences. (4) Similar rulings have issued in Australia, Canada, and South Africa. (5)

The propriety of American criminal disenfranchisement has come under increasing scrutiny. Critics point to the practice's racially disparate effects, doubtful public benefits, and high-profile impact on tightly contested elections. (6) Perhaps in response to these forceful criticisms, many states have softened their disenfranchisement regimes or facilitated the restoration of voting rights. (7) Unlike reformers in many other countries, however, American critics of criminal disenfranchisement have not succeeded in enlisting the judiciary's assistance. Courts in the United States apply heightened scrutiny when reviewing challenges to most state voting qualifications, (8) the use of voter identification cards, (9) the design of political districts, (10) and even the implementation of ballot recounts. (11) Yet these same courts have consistently declined to scrutinize criminal disenfranchisement laws. (12)

The constitutional law of American felon disenfranchisement turns on the otherwise obscure second section of the Fourteenth Amendment. (13) Section 2 is "one of the Constitution's enduring mysteries." (14) Though never enforced by Congress or the courts, (15) Section 2 directs that states lose representation in Congress in proportion to their disenfranchisement of adult male citizens. But Section 2 exempts from this apportionment penalty state disenfranchisement based on "rebellion, or other crime." (16) In the 1974 decision Richardson v. Ramirez, the Supreme Court concluded that Section 2's exception constituted an "affirmative sanction" (17)--or, as a later case would put it, an "implicit authorization" (18)--for felon disenfranchisement. In the Court's view, the Equal Protection Clause contained in Section 1 of the Fourteenth Amendment "could not have been meant to bar outright a form of disenfranchisement which was expressly exempted from the less drastic sanction of reduced representation" provided under Section 2. (19)

Ramirez and its reasoning have had far-reaching implications. Today, Ramirez "is generally recognized as having closed the door on the equal protection argument in a challenge to state statutory voting disqualifications for conviction of crime." (20) Felon disenfranchisement laws, in other words, "have been exempted from standard fundamental rights equal protection analysis." (21) Only disenfranchisement provisions demonstrably motivated by racial animus are vulnerable to an Equal Protection Clause attack. (22) Because Ramirez has stymied constitutional challenges to felon disenfranchisement laws, reformers who hope to challenge those measures have turned away from the Constitution and toward the Voting Rights Act (VRA). (23)

But Ramirez's interpretation of Section 2 has also shaped judicial interpretations of the VRA. Because it prohibits state voting qualifications with disparate racial impact, the VRA is most naturally read to preempt many state felon disenfranchisement laws. (24) Yet every federal circuit to rule on the question has held to the contrary, based in large part on Ramirez and Section 2. (25) The Eleventh Circuit's 2005 en banc decision emphasized that "Florida's discretion to deny the vote to convicted felons is fixed by the text of [section] 2 of the Fourteenth Amendment." (26) The en banc Second Circuit noted in 2006 that its "starting point" would be "the explicit approval given felon disenfranchisement provisions in the Constitution." (27) The First Circuit said in 2009 that "[t]he power of the states to disqualify from voting those convicted of crimes is explicitly set forth in [section] 2 of the Fourteenth Amendment." (28) And in 2010, the en banc Ninth Circuit cited Ramirez to conclude that "felon disenfranchisement has an affirmative sanction in the Fourteenth Amendment." (29)

Despite its obvious legal importance, Ramirez has endured decades of withering criticism. Leading constitutional theorists argue that Section 2's "other crime" language is a mere exception, not an "affirmative sanction," and so cannot limit the meaning of separate constitutional provisions such as the Equal Protection Clause or the Fifteenth Amendmenc. (30) As a number of Second Circuit judges put it, "Declining to prohibit something is not the same as protecting it." (31) Other critics argue that the "crime" exception establishes no affirmative endorsement because it was included as a mere afterthought (32) or because Section 2 as a whole was the unprincipled product of "political exigency." (33) Yet other critics allege that Ramirez read the "other crime" phrase too broadly, since it originally referred only to crimes similar to rebellion or treason and so carried too narrow a meaning to support disenfranchisement for many modern offenses, such as possession of illegal drugs. (34) And still other critics contend that the Fifteenth Amendment's blanket ban on racial discrimination in voting impliedly repealed the ostensibly more limited apportionment penalty in Section 2, thereby removing from the Constitution any affirmative sanction that Section 2 might once have enshrined. (35)

This Article draws on the history of the Reconstruction Amendments to recover the original justification for the constitutionality of felon disenfranchisement. At the same time, the Article suggests a historically grounded line of argument against the constitutionality of criminal disenfranchisement for misdemeanors and other insufficiently serious offenses. The argument proceeds in two Parts.

Part I advances a novel historical thesis. It demonstrates that all three Reconstruction Amendments, as well as a number of important Reconstruction-era statutes, were motivated and shaped by what this Article calls "the irony of egalitarian disenfranchisement"--that is, the tendency of radical egalitarians in the Reconstruction era to justify the enfranchisement of black Americans by simultaneously defending the disenfranchisement of criminals. The political figures most responsible for the Reconstruction Amendments were legislators known as radical Republicans. These egalitarian figures were profoundly influenced by what James Q. Whitman has called "the philosophy of formal equality"--that is, the view that a legitimate political order distinguishes persons by their actions and not by their station.(36) The radicals drew on the philosophy of formal equality not only to insist on the liberation and then enfranchisement of former

slaves, but also to endorse the disenfranchisement of criminals, rebels, and other wrongdoers. The same political philosophy thus underlay both the expansion of constitutional voting rights without regard to race and the constitutional entrenchment of punitive disenfranchisement. Because the historical relationship between racial enfranchisement and criminal disenfranchisement will strike many twenty-first century readers as paradoxical, this Article refers to it as an "irony." But that characterization is deliberately anachronistic. In the Reconstruction Congress, even the most egalitarian legislators viewed racial enfranchisement and criminal disenfranchisement as two sides of the same philosophical coin.

Part II draws on the foregoing history to address four clusters of arguments concerning the contemporary lawfulness of criminal disenfranchisement. First, the irony of egalitarian disenfranchisement supports Ramirez's intensely criticized conclusion that the Constitution exhibits affirmative approval of criminal disenfranchisement. (37) The "other crime" exception was not an accident, oversight, or political stratagem, as commentators have assumed, but rather the textual expression of a deep political principle--indeed, the very same principle relied on by the drafters and supporters of the Thirteenth Amendment, the Equal Protection Clause, and the Fifteenth Amendment. The historical record further demonstrates that Section 2's drafters contemplated criminal disenfranchisement not just for "rebellion" but also for many conventional crimes. (38)

Second, Section 2's endorsement of criminal disenfranchisement was limited to offenses of sufficient gravity to constitute forfeiture of political rights. The term "crime" sometimes carried that narrower meaning, and Congress's governing theory of political morality suggests that the narrow meaning was intended. Only serious crimes replicated in miniature the Confederacy's "rebellion" against legitimate government. Supporting that inference, contemporaneous legislation combated racist disenfranchisement by using language narrower than Section 2's broad "other crime" locution. Ramirez and the "affirmative sanction" it identified might be construed in light of...