Felon disenfranchisement: law, history, policy, and politics.

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Felon disenfranchisement: law, history, policy, and politics.

INTRODUCTION

George W. Bush became the forty-third President of the United States when he won the state of Florida by 537 votes in the 2000 election. (1) Because the election was so close, hotly-contested, and divisive, aspects of our electoral system long relegated to dusty books suddenly became topics of water cooler conversation and cocktail party chatter. Some Democrats speculate that if the nearly 600,000 felons in Florida (2) had been allowed to vote, Al Gore would have been elected President. (3)

Felon disenfranchisement (4) has thus become a cause celebre among liberals. (5) There are approximately four million felons who cannot vote nationwide. (6) They are disproportionately black and Hispanic (7)--constituencies that have traditionally been Democratic strongholds. (8) Embittered by the 2000 elections, Democrats have seized on the goal of extending suffrage to felons in hopes of increasing their traditional voter base, thus helping them win close elections. (9) They face an uphill battle, however, as history, law, and policy weigh against allowing felons to vote.

Part I of this note places felon disenfranchisement in a historical context, highlights significant cases and jurisprudence under the Fourteenth Amendment and the Voting Rights Act, and reviews the scope of its impact today. Part II considers the divergent interpretations of law that have led to uncertainty in the circuits as to whether the Voting Rights Act reaches felon disenfranchisement and when felon disenfranchisement statutes originally enacted with discriminatory intent have been cleansed of that taint. The confusion in the circuits stems from conflicting views of what the history of felon disenfranchisement means and whether there are legitimate underlying policy rationales. Part III argues that the Voting Rights Act does not reach felon disenfranchisement and thus the Fourteenth Amendment is controlling, therefore these laws are only susceptible to attack on constitutional grounds if they were enacted with discriminatory intent. Thus, we are left with policy arguments, which are properly decided in state legislatures.

I. BACKGROUND: HISTORY, JURISPRUDENCE AND IMPACT

A. Early Origins

Felon disenfranchisement has a long history, with origins in ancient Greece. (10) In medieval Europe, it was expressed in the concept of "civil death." (11) In Britain, "outlawry" stripped a criminal of his right to protection of the laws for his life and property. (12) The first disenfranchisement laws in America appeared in the 1600s, typically as punishment for morality crimes such as drunkenness, (13) and were present from the earliest times of the Republic. (14)

The power of the states to establish voter qualifications is found in Article I, Section Two of the United States Constitution, which provides that "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." (15) States have "broad powers to determine the conditions under which the right of suffrage may be exercised, absent of course the discrimination which the Constitution condemns." (16) The "wide scope" of power held by the states to set qualifications includes "[r]esidence requirements, age, [and] previous criminal record." (17)

From 1776 to 1821, eleven states adopted constitutions that disenfranchised felons or permitted their statutory disenfranchisement. (18) Virginia was the first in 1776, followed by Kentucky in 1799, Ohio, in 1802, Louisiana, in 1812, Indiana, in 1816, Mississippi, in 1817, Connecticut and Illinois in 1818, Alabama, in 1819, Missouri, in 1820, and New York in 1821. (19) Eighteen more states had followed suit by the time the Fourteenth Amendment was ratified in 1868. (20)

These early laws rested on John Locke's concept that those who break the social contract should not be allowed to participate in the process of making society's rules. (21) Other justifications included the prevention of election fraud, the fear that criminals would weaken laws and their enforcement, and a "purity of the ballot box" concept that felons lack the "moral competence" needed to vote. (22) The Alabama Supreme Court vindicated felon disenfranchisement in Washington v. State (23) on the theory that:

It is quite common also to deny the right of suffrage, in the various American States, to such as have been convicted of infamous crimes. The manifest purpose is to preserve the purity of the ballot box, which is the only sure foundation of republican liberty, and which needs protection against the invasion of corruption, just as much as against that of ignorance, incapacity, or tyranny. The evil infection of the one is not more fatal than that of the other. The presumption is, that one rendered infamous by conviction of felony, or other base offense indicative of great moral turpitude, is unfit to exercise the privilege of suffrage, or to hold office, u...

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