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

AuthorBrooks, George


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as to whether the Voting Rights Act reaches felon disenfranchisement and when felon disenfranchisement statutes originally enacted with discriminatory intent have been cleansed of that taint.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.


    1. 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, upon terms of equality with freemen who are clothed by the State with the toga of political citizenship. (24) B. Civil War and Reconstruction

      The aftermath of the Civil War wrought enormous changes, in both society and the law. The Thirteenth Amendment, which banned slavery and involuntary servitude (except as punishment for a crime), was enacted in 1865. (25) The Fourteenth Amendment was passed in 1868; Section One contained the Equal Protection Clause and Section Two sanctioned the disenfranchisement of those who participated in rebellion or were convicted of "other crime[s]". (26) The last of the Reconstruction Amendments was the Fifteenth, which was ratified in 1870 and extended the franchise to blacks. (27)

      While all three amendments are important for civil rights, the Fourteenth stands out as perhaps the most important constitutional amendment ever passed. (28) Section One provides that,

      No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (29) The Equal Protection Clause in Section One has been the basis on which modern courts have been able to strike down laws and practices that intentionally discriminate on the basis of race, as stated or as applied. (30) Section Two diminishes state representation in Congress as a punishment for states that infringe voting rights, unless those rights are abridged "for participation in rebellion, or other crime." (31)

      Due to ambiguities in Section One, Section Two lends itself to dual interpretation. First, it can be viewed as a "remedy," (32) or perhaps more accurately as a punishment, by reducing a state's representation in Congress when it violates a right protected in Section One. (33) Alternatively, it can be construed as an implicit authorization to deny black suffrage; the "remedy" does not prevent a violation, it only provides a punishment for the occurrence. (34) Politically, either construction would have been acceptable to the Republicans of the Reconstruction era. Either blacks would have been enfranchised and would presumably have voted for Lincoln's Republican party, (35) or they would not have been allowed to vote, which would have reduced Southern--and predominately Democrat--representation in Congress by invoking Section Two; thus increasing Northern--and mostly Republican--representation in Congress. (36)

      Union troops occupied the Confederacy during Reconstruction and despite enfranchising nearly one million former slaves, (37) they continued to enforce laws denying the vote to convicted felons. The Military Reconstruction Act of 1867 specifically exempted convicted felons from exercising the franchise. (38) Before former Confederate states were readmitted to the Union, they were required to ratify the Fourteenth Amendment (39) and bring their state laws into "conformity with the Constitution of the United States in all respects." (40) Upon meeting these requirements, Congress then passed enabling acts which formally readmitted a state to the Union. (41) These acts placed "fundamental condition[s]" on states regarding suffrage. (42) Arkansas provides a typical example, being the first former Confederate state to be readmitted to the Union, in June 1868. (43) The Act of June 22, 1868 provided in relevant part:

      That the State of Arkansas is entitled and admitted to representation in Congress as one of the States of the Union upon the following fundamental condition: That the constitution of Arkansas shall never be so amended or changed as to deprive any citizen or class of citizens of the United States of the right to vote who are entitled to vote by the constitution herein recognized, except as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted, under laws equally applicable to all the inhabitants of said State.... (44) Despite the lofty goals of the Reconstruction era, Jim Crow came to dominate the South as Reconstruction ended, and blacks were socially and politically excluded from full participation in the life of the nation. (45) Their right to vote was systematically denied through use of poll taxes, (46) grandfather clauses, (47) and property tests, (48) as well as literacy tests (49) and intimidation. (50)

      The Supreme Court participated in this process by dismantling what Congress had accomplished in the Reconstruction Amendments. (51) The Court construed the Amendments very narrowly in the Slaughter-House Cases, (52) concluding that the Thirteenth Amendment was intended only to combat discrimination against former slaves and gutting the privileges and immunities clause of the Fourteenth Amendment. (53) In 1883, the Civil Rights Cases (54) held that the Fourteenth Amendment applied only to state action, thus declaring the Civil Rights Act of 1875...

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