Chapter 14 Felons, Fraud, Redistricting — and Race

• Library: America Votes! Challenges to Modern Election Law and Voting Rights (ABA) (2016 Ed.)

CHAPTER 14 FELONS, FRAUD, REDISTRICTING — AND RACE

ROGER CLEGG^*

This chapter will talk about three voting law issues that are much discussed today: Whether felon disenfranchisement is wrong, whether ballot integrity measures (like voter ID) may be employed, and what role race should play in redistricting. My short answer to the three questions posed is "no, yes, and none." But my broader point is that, whatever specific decisions are made in dealing with voters and voting, race should not be considered, one way or the other: that is, decisions should not be influenced by the racial outcomes that are likely to result, whether the influence is politically correct or politically incorrect.

I. The Automatic Re-enfranchisement of Felons

Both the original Constitution and the Fourteenth Amendment specifically delegate to the states the right to determine the qualifications of voters; consequently, Congress cannot override the Constitution through legislation and has no authority to restore the voting rights of felons. As a policy matter, it makes perfect sense to disenfranchise felons.

A. THE CONSTITUTION AND THE FEDERAL ROLE

Whether—and when—felons should have their voting rights restored is a public-policy issue that is open to debate, but there is no real doubt that the authority to decide this issue lies with the states, not with Congress.

1. The Fourteenth Amendment and the (Non-racist) History of Felon Disenfranchisement Congress does not have the authority to force states to restore the voting rights of convicted felons—even in federal elections. Section 2 of the Fourteenth Amendment specifically provides that states may abridge the right to vote of citizens "for participation in rebellion, or other crime." The Fourteenth Amendment recognized a process that goes back to ancient Greece and Rome, as even opponents of felon disenfranchisement have recognized.¹ The common suggestion that state laws taking away the right of felons to vote are all rooted in racial discrimination is simply historically inaccurate: even before the Civil War, when many black Americans were slaves and could not vote, most states took away the rights of voters who were convicted of crimes.²

It should be kept in mind that the Fourteenth Amendment, like the Fifteenth Amendment, was one of the key post-Civil War amendments sponsored and passed by Republicans, the party of Abraham Lincoln and abolition, to help secure the rights of black Americans. Those same members of Congress deliberately protected the right of states to withhold the right to vote from citizens who were convicted of serious crimes against their fellow citizens, because "the framers of the Civil War Amendments saw nothing racially discriminatory about felon disenfranchisement. To the contrary, they recognized the power of the states to prohibit felons from voting."³

A key source for proponents of felon voting, a 2002 article by University of Minnesota Professor Christopher Uggen and Northwestern University Professor Jeff Manza, concedes that "[r]estrictions [on felon voting] were first adopted by some states in the post-Revolutionary era, and by the eve of the Civil War some two dozen states had statutes barring felons from voting or had felon disenfranchisement provisions in their state constitutions."⁴ That means that over 70 percent of the states had these laws by 1861—when most blacks could not vote because either they were still enslaved or they lived in northern states that denied them the franchise based on their race. In 1855, only five states, all in New England, did not exclude blacks from voting because of their race.⁵

While it is true that during the period from 1890 to 1910, five Southern states passed race-targeted felon-disenfranchisement laws, a graphic in the article by Uggen and Manza demonstrates that over 80 percent of the states in the United States (which was increasing in size as western territories became states) already had felon-disenfranchisement laws.⁶

Alexander Keyssar's book The Right to Vote—cited in the Uggen and Manza article (Keyssar also supports felon enfranchisement)—notes that, outside the South, the disenfranchisement laws "lacked socially distinct targets and generally were passed in a matter-of-fact fashion."⁷ Even for the post-Civil War South, Keyssar notes that in some states, "felon disfranchisement provisions were first enacted [by] Republican governments that supported black voting rights."⁸ To quote Uggen and Manza, "In general, some type of restriction on felons' voting rights gradually came to be adopted by almost every state, and at present 48 of the 50 states bar felons—in most cases including those on probation or parole—from voting."⁹

As for the five Southern states that tried to use these laws during Reconstruction and afterward specifically in order to disenfranchise black voters, those laws have all been amended¹⁰—as indeed they had to be since they otherwise would have been struck down, as the Supreme Court of the United States struck down Alabama's law in Hunter v. Underwood.¹¹

If there were evidence that such discriminatory laws were still on the books, there are many well-funded civil rights advocacy organizations, as well as the U.S. Department of Justice, that would be eager to challenge them. The fact that no such challenges are being brought indicates that such evidence does not exist.

One other important note: In the Hunter case, the Supreme Court specifically noted that "[p]roof of racially discriminatory intent is required to show a violation of the Equal Protection Clause." No such showing of intentional discrimination can be made with regard to such state laws today, and it would not be sufficient for challengers to prove that such laws only have a "racially disproportionate impact."¹² For this reason, Congress also lacks authority to ban state felony disenfranchisement laws under either section 5 of the Fourteenth Amendment or section 2 of the Fifteenth Amendment.¹³ Under existing state laws, criminals lose their right to vote because of their own actions in violating the law, not because of their race.

2. Article I of the Constitution and Felon Voting What's more, the Constitution explicitly gives the states rather than Congress the authority to determine the qualifications of voters in those states. Article I, Section 2, Clause 1 provides that voters for Members of the House of Representatives "shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature." The Seventeenth Amendment provides the same state qualification for voters for members of the Senate, and Article II empowers the states to decide who are its presidential electors. In other words, the qualifications or eligibility requirements that states apply to their residents voting for state legislators must be applied to those same residents voting for members of Congress, thereby explicitly giving states the ability to determine the qualifications for individuals voting in federal elections.

Congress is given the authority under the Elections Clause in Section 4 of Article I to alter the "Times, Places and Manner of holding Elections for Senators and Representatives," but that power does not extend to the "qualifications" of voters. James Madison and Alexander Hamilton in The Federalist Papers support this view, which is the most natural reading of the text. For example, in Federalist No. 52, Madison stated that to have left such qualifications open to "the regulation of the Congress" would be improper. Likewise, in Federalist No. 60, Hamilton argues that prescribing voting qualifications "forms no part of the power to be conferred upon the national government" by the Elections Clause, which is "expressly restricted to the regulation of the times, the places, and the manner of elections."

Contrary to the claim made by some,¹⁴ the Supreme Court's 1970 decision in Oregon v. Mitchell does not provide any support for a federal felon voting law.¹⁵ In a fractured series of opinions, five justices voted to uphold legislation that required states to allow 18-year-olds to vote in federal elections, but eight justices rejected— four "specifically" and four "implicitly"—the argument that Congress had the authority under Article I, Section 4, to make such changes.¹⁶ Only Justice Hugo Black thought Congress had that authority. Justice Black wrote one opinion, Justice William Douglas another, and Justice William Brennan a third, in which he was joined by Justices Byron White and Thurgood Marshall. None of those writing or joining one of these opinions joined any of the others, and four other justices— John Marshall Harlan, Potter Stewart, Harry Blackmun, and Chief Justice Warren Burger—dissented. Other than Justice Black, the remaining four non-dissenting justices relied on interpretations of Congress's enforcement authority under the Fourteenth and Fifteenth Amendments that are inconsistent with the Supreme Court's subsequent rulings in Richardson v. Ramirez and City of Boerne v. Flores.¹⁷ Specifically, in Richardson v. Ramirez, the Court explicitly rejected a challenge under the Equal Protection Clause to a state's felon disenfranchisement law. And, in City of Boerne v. Flores, the Court ruled that, since the Fourteenth Amendment bans only laws that are deliberately discriminatory, Congress cannot pass legislation under the Amendment's enforcement clause aimed at laws that have only a disproportionate effect on a religious minority group: Congress's exercise of power under the Amendment's enforcement clause must have "congruence and proportionality" with the underlying constitutional guarantee.

Thus, misguided claims by a few proponents of felony enfranchisement notwithstanding, Congress cannot rely on Article I, Section 4, for any authority on felon voting. Any doubt on this point was laid to rest in 2013, when the Supreme Court confirmed in Arizona v. Inter Tribal Council of Arizona that only states, not...