A Curious Legal Anomaly: Female Inmates Could Have The Right To Vote—But Not Male Inmates

• Author: Rudolph Alexander
• DOI: 10.1177/088740349100500405
• Published date: 01 December 1991
• Date: 01 December 1991
• Subject Matter: Articles

335

A

Curious

Legal

Anomaly:

Female

Inmates

Could

Have

The

Right

To

Vote—But

Not

Male

Inmates

Rudolph

Alexander,

Jr.

Ohio

State

University

Abstract

The

United

States

Supreme

Court

has

ruled

that

a

section

of

the

Fourteenth

Amendment

of

the

U.S.

Constitution

supports

the

practice

of

disenfranchising

ex-felons.

However,

a

literal

interpretation

of

this

section

exposes

a

curious

anomaly

about

the

legality

of

disenfranchising

female

felons.

This

paper

argues

that

female

inmates

could

legally

vote

while

they

are

in

prison.

The

paper

concludes

that

this

right

should

be

extended

to

male

inmates.

The

purpose

of

this

paper

is

to

address

a

curious

anomaly:

that

it

would

be

possible

for

female

inmates

to

vote

legally

but

not

male

inmates.

Few

laws

enacted

during

the

17th

century

survive

today

as

they

were

written.

As

our

understanding

of

human

psychology

and

sociology

has

changed

and

the

law

itself

has

developed,

courts

through

the

years

have

found

many

laws

to

be

unconstitutional.

Legislatures,

perhaps

sensing

the

directions

of

the

court,

have

amended

or

rewritten

many

laws

to

conform

to

contemporary

society.

But

one

law,

the

disenfranchisement

of

felons,

has

endured

since

its

inception

(Burton,

Cullen,

&

Travis,

1987).

Ex-offenders

during

the

19th

and

20th

centuries

have

challenged

some

state

statutes

which

disenfranchised

them,

but

the

challenges

have

been

unsuccessful

as

the

courts

have

ruled

against

those

bringing

suit

(Davis

v.

Beason,1890;

Green

v.

Board

of Elections

of

City

of New

York,

1967;

Murphy

v.

Ramsey,

1885;

Richardson

v.

Ramirez,

1972).

Any

discussion

of

the

idea

of

inmates

voting

would

seem

almost

moot,

because

if

ex-offenders

generally

cannot

vote

unless

their

civil

rights

have

been

restored,

it

follows

that

inmates

would

not

have

the

privilege.

Additionally,

the

anomaly

of

giving

female

but

not

male

inmates

the

right

to

vote

is

ironic

because

men

were

given

the

right

to

vote

long

before

women

were.

In

order

to

understand

how

this

development

in

the

law

evolved,

this

paper

must

first

outline

the

historical

basis

for

disenfranchising

felons

and

the

main

legal

decision

upholding

the

constitutionality

of

disenfranchisement

statutes.