Felon Disenfranchisement in Alaska and the Voting Rights Act of 1965

• Publication year: 2006

§ 23 Alaska L. Rev. 289. FELON DISENFRANCHISEMENT IN ALASKA AND THE VOTING RIGHTS ACT OF 1965

Alaska Law Review
Volume 23
Cited: 23 Alaska L. Rev. 289

FELON DISENFRANCHISEMENT IN ALASKA AND THE VOTING RIGHTS ACT OF 1965

CHRISTOPHER R. MURRAY ^[*]

I. INTRODUCTION

II. ALASKA'S FELON DISENFRANCHISEMENT LAWS

A. National Context

B. Felon Disenfranchisement and Race

C. Constitutionality of Alaska's Felon Disenfranchisement Law

III. THE VOTING RIGHTS ACT OF 1965

A. The Voting Rights Act of 1965 and the 1982 Amendments

B. Applicability of the VRA to Felon Disenfranchisement Laws

IV. ALASKA'S FELON DISENFRANCHISEMENT LAW AND THE VOTING RIGHTS ACT OF 1965

A. Ninth Circuit's Framework for Challenges Under Section 2 of the VRA

B. Applying the VRA in Farrakhan

C. Alaska's Felon Disenfranchisement Law in Light of Farrakhan III

V. CONCLUSION

FOOTNOTES

Alaska and forty-seven other states have provisions that limit the voting rights of felons. In many of these states, including Alaska, minority groups are disproprtionately affected by these felon disenfranchisement laws. This Note examines the validity of these laws generally, and Alaska's laws in particular, under the the Voting Rights Act of 1965.

I. INTRODUCTION

Alaska limits the voting rights of felons. ^[1] Forty-seven other states have similar policies. ^[2] And, as in many of these other states, racial minorities in Alaska are disproportionately affected. ^[3] Indeed, the state's largest minority group, Alaska Natives, is overrepresented in the state's prison population, indicating a greater likelihood of disenfranchisement. ^[4] Because the right to vote is central to democratic government, any law that tends more frequently to disenfranchise racial minorities should be cause for [*pg 290] alarm. Nevertheless, because Alaska's felon disenfranchisement laws appear not to have been enacted with a discriminatory purpose, they likely do not violate the Federal Constitution. ^[5]

The laws may, however, run afoul of the Voting Rights Act of 1965 ("VRA"), which was amended in 1982 to invalidate state voting qualifications that have a racially disproportionate impact. ^[6] Recent litigation has challenged state felon disenfranchisement laws on this basis. ^[7] Though none of these challenges have succeeded -- and two circuits have held that the VRA simply does not apply to felon disenfranchisement ^[8] -- the Ninth Circuit recently allowed a VRA challenge to the State of Washington's felon disenfranchisement provision. ^[9]

To date, no case has been brought challenging felon disenfranchisement in Alaska. This Note is directed to that possibility. Part II puts Alaska's felon disenfranchisement laws into national context and explains why, even if they produce a racially discriminatory impact, they are likely not unconstitutional. Next, Part III assesses the circuit split over whether the VRA applies to felon disenfranchisement laws and the Ninth Circuit's decision that it does. Lastly, Part IV outlines the Ninth Circuit law that would govern a VRA challenge to Alaska's felon disenfranchisement laws in light of a recent similar challenge in Washington.

II. ALASKA'S FELON DISENFRANCHISEMENT LAWS

A. National Context

Disenfranchisement of criminals is neither a unique nor a recent phenomenon. The United Kingdom, Canada, and Australia all, to some degree, have voting qualifications based on criminal status. ^[10] The ancient Greeks and Romans disenfranchised those guilty of infamous crimes, and voting was among a range of civil [*pg 291] rights denied in post-Renaissance Europe on the theory that criminals suffer a "civil death." ^[11]

Today in the United States, disenfranchisement is among many collateral consequences of felony conviction such as exclusion from certain professions and restrictions on carrying a concealed weapon. ^[12] In a frequently quoted opinion, Judge Henry Friendly justified the practice on a Lockean social-contract theory by arguing that criminals, in breaking societal rules, waive their rights to participate in the rule-making. ^[13] Other courts have expressed an interest in preserving the "purity of the ballot box" from infection by those who by their acts have proven themselves morally unfit. ^[14]

Nevertheless, the practice is not without critics. ^[15] With respect to traditional justifications for criminal sanction -- rehabilitation, retribution, and deterrence -- felon disenfranchisement seems to fall short given the counter-productivity of keeping criminals from participating in civil society, the disproportionate application of, in some cases, lifetime disenfranchisement to a broad range of crimes, and the limited deterrent effect of the threat of disenfranchisement. ^[16] Abroad, felon disenfranchisement laws have been judicially rejected on political and human-rights grounds. ^[17]

[*pg 292]

The modern practice of felon disenfranchisement in the United States is primarily a function of state law. ^[18] Forty-eight states and the District of Columbia have some form of felon disenfranchisement, generally consisting of constitutional provisions buttressed by statute. ^[19] Felon disenfranchisement expanded after the nation's founding, with most such laws enacted during the mid- to late-nineteenth century. ^[20] At the time the Reconstruction Amendments were enacted, twenty-nine of the thirty-six states had some form of felon disenfranchisement. ^[21]

Modern practice varies by state. At the extreme, at least three states impose lifetime voting bans on felons. ^[22] These jurisdictions go beyond the historical scope of felon disenfranchisement laws in the United States and the contemporary practice in other states and internationally. ^[23] The reach of these laws is striking -- lifetime disenfranchisement may even be predicated upon crimes such as jaywalking, vagrancy, or breaking a water pipe. ^[24]

Alaska's felon disenfranchisement law is not as severe. The state constitution provides that "[n]o person may vote who has [*pg 293] been convicted of a felony involving moral turpitude unless his civil rights have been restored." ^[25] The provision was adopted at Alaska's constitutional convention in 1956 and became law upon Alaska's admission to the union in 1959. ^[26] Congress approved Alaska's constitution, including the felon disenfranchisement provision, when it granted statehood. ^[27] The language mirrored that of contemporary provisions in other states' constitutions. ^[28]

The contours of the constitutional provision are set by statute. The term "felony involving moral turpitude" is defined to include nearly all felonies. ^[29] Voting registration is automatically cancelled upon conviction. ^[30] Voting rights are restored, and felons may re-register to vote upon completion of their sentences including any terms of parole or probation. ^[31] Felon disenfranchisement in Alaska, which is more lenient than the lifetime ban imposed in [*pg 294] some states, is in line with the policies of a majority of other states. ^[32]

B. Felon Disenfranchisement and Race

Though facially race-neutral, felon disenfranchisement laws were, historically, enacted with a discriminatory purpose. Authors have noted that many states enacted such laws in the aftermath of the Civil War as part of a larger defensive response to the Reconstruction Amendments' extension of the franchise to African-Americans. ^[33] This response included poll taxes, literacy tests, and other Jim Crow measures to suppress the voting power of African-Americans. ^[34] For example, a 1901 felon disenfranchisement provision to Alabama's state constitution was expressly intended to single out only those felonies believed to be more frequently committed by African-Americans. ^[35] In 1985, the Supreme Court struck down that provision in the case of Hunter v. Underwood. ^[36]

To the extent felon disenfranchisement laws were tailored to maximize a racially disparate impact, they have enjoyed considerable success. ^[37] Nationally, an estimated thirteen percent of African-American men are disenfranchised, with as many as thirty-one percent of African-American men in two states -- Alabama and Florida -- permanently disenfranchised. ^[38] Following a review of voting in the United States, the National Commission on Federal Election Reform, chaired by former presidents Jimmy Carter and Gerald Ford, urged states to scale back felon disenfranchisement laws, citing that as many as one in six African-Americans were disenfranchised in many states. ^[39] Even where discriminatory intent [*pg 295] has not been proven, discriminatory effect continues to be the reality. ^[40]

Alaska's experience is comparable. Although comprehensive studies of racial disparity in felon disenfranchisement in Alaska are unavailable, incarceration statistics provide a useful proxy. ^[41] Alaska's largest minority group, Alaska Natives, comprise approximately sixteen percent of the state's general population, ^[42] but they account for thirty-seven percent of its prison population. ^[43] Similar disparity exists in the cases of other minorities, including African-Americans, who account for over ten percent of the prison population ^[44] while representing less than four percent of the general population. ^[45] It has been suggested that cultural factors may make Alaska Natives more susceptible to felon disenfranchisement. ^[46] The precise...