The modern-day literacy test?: felon disenfranchisement and race discrimination.

• Author: Goldman, Daniel S.

INTRODUCTION I. LITERACY TESTS A. Historical Origins and Discriminatory Intent B. Structural and Discretionary Discriminatory Effects 1. Educational inequality 2. Implementation bias C. Justifications for Literacy Tests 1. Biological claims of inferior intelligence 2. Lassiter: The Supreme Court's stamp of approval D. The Voting Rights Act: The Prohibition of Literacy Tests II. FELON DISENFRANCHISEMENT A. Discriminatory Origins B. The Societal Impact of Felon Disenfranchisement 1. The incarceration boom 2. Racial bias in the criminal justice system 3. The effect on voting rights of felons and ex-felons C. Implementation Bias 1. Discriminatory execution of felon disenfranchisement laws 2. Discretion in restoring voting rights D. Justifications for Felon Disenfranchisement Laws 1. Rhetoric and rationality 2. Criminality E. Challenges in Court 1. Amended section 2 of the Voting Rights Act 2. The Equal Protection Clause 3. Other alternatives CONCLUSION The right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights. (1) --Chief Justice Earl Warren INTRODUCTION

Earl Warren once said that of all the Supreme Court decisions he wrote, he was most proud of Reynolds v. Sims (2) because it ensured that "elections would reflect the collective public interest." (3) Forty years after that seminal voting rights decision, the voices of felons and ex-felons, groups disproportionately comprised of minorities, are absent from Warren's vision of the collective public--and the numbers of felons and ex-felons are growing. The incarceration boom of the past three decades, combined with the corresponding collateral consequences stemming from criminal convictions, has ingrained into modern society a minority underclass resembling that of the stratified societal structure present during the Jim Crow era. Felon disenfranchisement laws deny the right to vote to a whopping 2.3% of the U.S. voting-age population: (4) most of this disenfranchised group are citizens of color. The structure and effect of felon disenfranchisement laws have many similarities to a relic from Chief Justice Warren's days: literacy tests. Courts and Congress (eventually) determined that literacy tests served as a tool of racial discrimination and political exclusion. Today, felon disenfranchisement laws discriminate against, and politically exclude, minorities in many similar ways.

During the Jim Crow era, Southern state governments and officials used a number of methods to disenfranchise blacks, including physical force and threats, but literacy tests provide a particularly apt lens through which to view the disenfranchising schemes and rationales of that era. By the 1950s and 1960s, literacy tests were the last remaining, most prevalent, and most effective mechanism of political exclusion, and their eradication required significant and controversial congressional action. Similarly, felon disenfranchisement provisions are the most noteworthy of a growing number of collateral consequences of criminal sentences, often referred to as "civil disabilities," that perpetuate the economic, social, and political exclusion of minorities. Disenfranchisement often is singled out because it "is the harshest civil sanction imposed by a democratic society." (5) Since the right to vote confers upon individuals the ability to influence the application of all other collateral consequences, (6) and instills a sense of civic responsibility and relevance, felon disenfranchisement is a particularly significant and devastating civil disability.

There is a tremendous amount of legal scholarship addressing felon disenfranchisement, particularly since the disputed federal election in 2000, (7) but the issue has only recently regained attention from the courts. Three courts of appeals have recently addressed the intersection of racial discrimination in the criminal justice system and felon disenfranchisement laws, and although the Supreme Court recently decided not to address the issue, it may have another opportunity in the near future. Most scholarly publications on this topic attempt to either set forth or debunk the various legal arguments and justifications for felon disenfranchisement provisions. That is not the objective of this Note. Instead, this Note intends to build on those arguments by framing the issue in a different manner with the hope of altering the calculus used to analyze the legitimacy of felon disenfranchisement laws. Unquestionably, there are differences between felon disenfranchisement and literacy tests--the most important of which is the fact that, unlike literacy tests, one must be convicted of a crime in order to be affected by felon disenfranchisement laws. Yet by illuminating the similarities between felon disenfranchisement provisions and literacy tests, and illustrating the analogous paths of each type of regulation, this Note attempts to show that felon disenfranchisement laws do, at the very least, advance a mechanism for political exclusion and social control in the same manner as literacy tests. Furthermore, the rhetoric and justifications used to support both policies are remarkably alike, marked by racial stereotypes and thinly veiled messages of exclusion. Even if those who favor felon disenfranchisement are not swayed by these similarities, this Note aims to demonstrate a genuine structural and temporal continuity between the two voting restrictions that might alter the discourse surrounding the issue, thereby placing felon disenfranchisement in a new framework as the issue approaches the Supreme Court.

Both felon disenfranchisement laws and literacy tests are justified as provisions entirely divorced from race because they are formally facially neutral. Yet felon disenfranchisement laws mirror the discriminatory, nature of literacy tests in two important ways: (1) they each depend on racial discrimination in other relevant areas of American society to produce a racially disparate impact, and (2) the racial bias associated with the discretionary implementation of each regulation serves to exclude minorities, particularly African Americans, from the political process. Whereas literacy tests systemically incorporated a state's educational system in an era when blacks received unequal education in segregated schools, felon disenfranchisement provisions incorporate a state's criminal justice system, which disproportionately and detrimentally affects African Americans and other minorities. And just as the discretionary (and discriminatory) implementation of literacy tests contributed to Congress's decision to ban such tests, the discretionary nature of the criminal justice system--from arrest to arraignment to plea bargaining to sentencing--and the implementation bias inherent in the restoration process determine who is disenfranchised in a racially discriminatory manner.

In addition, the rhetoric used to justify both types of provisions is based on false stereotypes and incorrect assumptions about minorities. Moreover, the origins of the two disenfranchising schemes indicate that both regulations often were enacted by states in an effort to exclude minorities. Initially, both types of provisions were not the primary methods of black disenfranchisement, but each effectively disenfranchised a large number of African Americans after other race-conscious mechanisms were prohibited. In fact, the effect of felon disenfranchisement laws increased dramatically after literacy tests were permanently prohibited by the Voting Rights Act in the 1970s. (8) Even if this continuity ultimately fails as a legal argument under the intent standard of the Equal Protection Clause, it nonetheless violates a normative notion of antidiscrimination values that is recognized in the American legal structure. Today, literacy tests are viewed as a mechanism that had the purpose of excluding blacks from the ballot box, even though they were not perceived that way at the height of their application. Similarly, analyzed within the social and political context of modern times, the dramatic effect of felon disenfranchisement laws elicits questions about whether the discriminatory effect is sufficiently severe to establish that a discriminatory purpose is present. (9) Even if it is not, and even if there is no constitutional remedy for felon disenfranchisement laws, the striking parallels between the two types of provisions require reconsideration.

The structure of this Note is straightforward. Part I traces the history of literacy tests, including the successful (and discriminatory) implementation of literacy tests after World War II based on a segregated educational system and the subjective discretionary abuse of Southern election officials. And perhaps most relevant to the present-day controversy over felon disenfranchisement, this Part then analyzes the rhetoric and justifications used to support the practice, most of which relied on the notion that intelligent voting was essential for the well-being of the polity and that African Americans were inherently intellectually inferior. Finally, this Part analyzes how and why literacy tests were eradicated throughout the entire United States, not only in states where a discriminatory purpose was evident.

Part II begins with the history of felon disenfranchisement, one marred by discriminatory motives. This Part then traces the incarceration boom that began in the 1970s and concentrates on the discriminatory nature of the "tough on crime" movement, particularly the "war on drugs," by identifying the structural similarities connecting its discriminatory effect to that of segregated education. A discussion of the discretionary nature of felon disenfranchising follows, with particular emphasis on the discretion evident both with respect to the criminal justice system and with respect to the implementation bias that exists in the restoration process. This Part then...