INTRODUCTION I. DISENFRANCHISEMENT AS PUNISHMENT II. DISENFRANCHISEMENT AS DILUTION III. THE CONSTITUTIONALITY OF PUNITIVE DISENFRANCHISEMENT CONCLUSION INTRODUCTION
The tenor of the debate over felon disenfranchisement has taken a remarkable turn. After a generation of essentially unsuccessful litigation, (1) two federal courts of appeals have recently reinstated challenges to such laws. (2) A conservative Republican governor of Alabama signed legislation making it easier for ex-offenders to regain their voting rights. (3) Several other states have made the restoration of voting rights automatic upon completion of an offender's sentence or within a short period of time thereafter. (4) Recent public opinion surveys find that over 80% of Americans believe that ex-offenders should regain their right to vote at some point, and more than 40% would allow offenders on probation or parole to vote. (5) Voting rights restoration has become an issue in the presidential campaign (6) and in grassroots efforts across the nation. (7) And on the international front, the supreme courts of Canada and South Africa issued decisions requiring their governments to permit even incarcerated citizens to vote. (8)
This Article discusses some of the causes and consequences of the way in which we now approach the question of criminal disenfranchisement. Parts I and II suggest that the terms of the contemporary debate reflect an underlying change both in how we conceive of the right to vote and in how we understand the fundamental nature of criminal disenfranchisement. Once voting is understood as a fundamental right, rather than as a state-created privilege, the essentially punitive nature of criminal disenfranchisement statutes becomes undeniable. And once the right to vote is cast in group terms, rather than in purely individual ones, criminal disenfranchisement statutes can be seen not only to deny the vote to particular individuals but also to dilute the voting strength of identifiable communities and to affect election outcomes and legislative policy choices. The 2000 presidential election and the popular and scholarly discussion that followed the debacle in Florida powerfully demonstrated the outcome-determinative effects of criminal disenfranchisement laws even as the 2000 census drove home other representational consequences of the mass incarceration that triggers much of the disenfranchisement.
Part III suggests that if we conclude that criminal disenfranchisement statutes are essentially punitive, rather than regulatory--as I think we must--this opens an additional legal avenue for attacking such laws beyond the equal protection- and Voting Rights Act-based challenges that courts are now entertaining. Blanket disenfranchisement statutes also raise serious questions under the Eighth Amendment, even under the Supreme Court's recent cramped reading of the proportionality principle in Ewing v. California. (9)
DISENFRANCHISEMENT AS PUNISHMENT
Constitutional limits on the government's power to inflict hardships often turn on whether the government's action is categorized as punitive or as regulatory: The government's ability to punish individuals is significantly more constrained, both procedurally and substantively, than its ability to regulate them. (10) One of the linchpins of current doctrine regarding criminal disenfranchisement statutes is the assumption that these laws are essentially regulatory, rather than punitive. That assumption is no longer tenable, if indeed it ever was. The view that disenfranchisement is not punitive rests on a long-since-repudiated conception of the right to vote. The current conception so undercuts originally regulatory justifications for disenfranchising offenders that only penal justifications remain. Thus, if felon disenfranchisement is to be justified, it must be justified as a permissible form of punishment.
The canonical statement of disenfranchisement as regulatory rather than punitive comes in Trop v. Dulles:
[A] statute has been considered nonpenal if it imposes a disability, not to punish, but to accomplish some other legitimate governmental purpose.... The point may be illustrated by the situation of an ordinary felon. A person who commits a bank robbery, for instance, loses his right to liberty and often his right to vote. If, in the exercise of the power to protect banks, both sanctions were imposed for the purpose of punishing bank robbers, the statutes authorizing both disabilities would be penal. But because the purpose of the latter statute is to designate a reasonable ground of eligibility for voting, this law is sustained as a nonpenal exercise of the power to regulate the franchise. (11) Notably, Chief Justice Warren identified no particular legitimate, nonpenal purposes served by disenfranchising offenders: He never explained why eligibility to vote should turn on one's not having robbed a bank. Instead, he simply relied on two nineteenth-century decisions--Davis v. Beason (12) and Murphy v. Ramsey (13)--in which the Court had upheld the denial of voting rights to polygamists as a simple regulation of the franchise. (14) Those decisions, however, rested on the proposition that a state's power to restrict the ability to vote is plenary, that is, that virtually any restriction on eligibility for voting is legitimate. In Murphy, for example, the Supreme Court treated the disenfranchisement of polygamists as nonpunitive because restriction of suffrage on the basis of marital status in any form would raise no problem: "It would be quite competent," the Court declared, "for the sovereign power to declare that no one but a married person shall be entitled to vote." (15) It was not the criminality of polygamists that justified denying them the right to vote--indeed, the Court noted that none of the plaintiffs had been convicted of the crime of polygamy and several were not even alleged to have engaged in polygamy since enactment of the disenfranchisement statute--but rather their immorality and hence their unfitness to participate in self-government. The reason for disqualifying supporters and practitioners of polygamy was to "withdraw all political influence from those who [were] practically hostile" to prevailing notions of appropriate family structure. (16)
The Supreme Court has squarely rejected the conception of the franchise that underlies the Mormon disenfranchisement cases. Although nineteenth-century courts may have seen the ability to vote as "purely a conventional right," which "may be enlarged or restricted, granted or withheld, at pleasure, with or without fault," (17) the Warren Court and its successors took quite a different approach. In Reynolds v. Sims, (18) the Court described "[t]he right to vote freely" as "the essence of a democratic society" and declared that "any restrictions on that right strike at the heart of representative government." (19) In subsequent cases, the Court has held that because voting is a "fundamental" right, (20) laws that deny citizens the right to vote must be "necessary to promote a compelling"--and not merely a legitimate--"state interest." (21) Accordingly, in Romer v. Evans, the Court deemed it "most doubtful" that laws like the one at issue in Murphy denying groups of citizens the right to vote "because of their status" could survive strict scrutiny. (22)
Moreover, at least since Carrington v. Rash, what we might call "viewpoint discrimination" is also no longer a legitimate basis for disqualifying voters:
"Fencing out" from the franchise a sector of the population because of the way they may vote is constitutionally impermissible. "The exercise of rights so vital to the maintenance of democratic institutions" cannot constitutionally be obliterated because of a fear of the political views of a particular group of bona fide residents. (23) Thus, the Supreme Court has explained, "[t]o the extent Davis held that persons advocating a certain practice may be denied the right to vote, it is no longer good law." (24) And that is so even though the plaintiffs in Davis were not just advocating "a certain practice"; they were advocating, and perhaps engaging in, a practice--polygamy--that was a felony. The repudiation of Davis means that denying individuals the right to vote either because they endorse criminal behavior or because they would vote to change existing criminal laws (25) is constitutionally impermissible.
More generally, contemporary voting rights doctrine casts a serious shadow on the central traditional nonpenal justification for felon disenfranchisement: the claim that ex-offenders should not be permitted to vote because they lack the qualities of mind or character voters ought to possess. (26) While the Supreme Court has never expressly overruled its decision in Lassiter v. Northampton County Board of Elections upholding the use of literacy tests because they "promote intelligent use of the ballot," (27) that decision antedated the identification of voting as a fundamental constitutional right, the limitation of which was subject to strict scrutiny. (28) Since then, the Court has consistently rejected restrictions on the franchise as a reasonable means of promoting intelligent or responsible voting. (29) And the same federal statute that permanently bans the use of literacy tests nationwide--based on Congress's conclusion that such tests served no compelling interest and perpetuated the exclusion of minority citizens (30)--also barred denying the right to vote to citizens who could not establish that they "possess good moral character." (31)
The one surviving vestige of the Mormon disenfranchisement cases seems to be the proposition that denying convicted felons the right to vote is "unexceptionable." (32) Felon disenfranchisement laws have been exempted from standard fundamental rights equal protection analysis since the Supreme Court's decision in Richardson v. Ramirez. (33) There, the Court held that the...