The "other" side of Richardson v. Ramirez: a textual challenge to felon disenfranchisement.

• Author: Hinchcliff, Abigail M.

NOTE CONTENTS INTRODUCTION I. FELON DISENFRANCHISEMENT IN THE UNITED STATES A. The Historical Practice of Felon Disenfranchisement B. Richardson v. Ramirez 1. Procedural Posture 2. Supreme Court Holding 3. The Court's Analysis 4. Implications and Key Subsequent History II. RIPE FOR REEXAMINATION: A NEW TEXTUAL STRATEGY A. A Textual Opportunity B. A Textual Invitation III. THE SYNTACTICAL PATTERN A. Article IV, Section 2: The Extradition Clause B. Amendment V: The Grand Jury Clause C. Article II, Section 4: The Impeachment Clause D. A Canonical Pattern IV. APPLYING THE PATTERN A. The Limits of "Other Crime" B. Limiting Principles C. Objections and Counterarguments CONCLUSION INTRODUCTION

There are few modern practices that so strike at the heart of American democracy as felon disenfranchisement. (1) The main federal constitutional decision on the subject is Richardson v. Ramirez, in which a divided Court held that felon disenfranchisement was constitutional based on the second clause of the Fourteenth Amendment. (2) The section in question was the Penalty Clause, which allows states to disenfranchise persons convicted of "participation in rebellion, or other crime" without losing representation in Congress. (3) The Court construed this text as an "affirmative sanction" for the disenfranchisement of felons. (4) This section blocks approximately 5.3 million adult American citizens--2.4% of the eligible population--from voting. (5)

The practice of felon disenfranchisement has received significant academic attention and has been the subject of many legal challenges. These criticisms have been based on such varied authorities as the Equal Protection Clause, (6) the Eighth Amendment, (7) the Fifteenth Amendment, (8) and the Voting Rights Act. (9) The majority of these challenges are aimed at overturning Ramirez. (10) However, given that Ramirez has withstood challenges for more than three-and-a-half decades, and given that the Court has shown no interest in reconsidering the Ramirez ruling, strategies that seek to overturn the decision are likely to fail. (11) Post-Ramirez legal challenges to disenfranchisement have generally been unsuccessful, as courts have found the topic to be a "settled issue." (12)

This Note argues that advocates should work within Ramirez's central holding and focus on lower courts' interpretations of this decision to limit the constitutional approval for felon disenfranchisement statutes. Lower courts have given an unwarranted sanction to an expansive version of the practice of felon disenfranchisement. A reexamination of the Penalty Clause will demonstrate that the scope of states' rights to disenfranchise is much more limited.

This Note describes an untouched litigation strategy for those seeking to limit the practice of felon disenfranchisement. (13) The Penalty Clause is ripe for reexploration; the modern form and justifications of the practice of felon disenfranchisement do not fit the language of the Clause. When examined as a part of a cohesive document, rather than a clause in isolation, it is clear that the "other crime" construction follows a syntactical pattern found in three other constitutional clauses: the Extradition, Grand Jury, and Impeachment Clauses all use a similar "other crime" construction. As in these other clauses, the meaning of the word "crime" is defined (and circumscribed) by the paradigm term (14)--in this case, "rebellion"--and may justifiably extend only to crimes that relate in a meaningful way to the crime of rebellion. (15) The textual reasoning underlying these claims follows well-recognized canons of constitutional interpretation. (16) Indeed, the Court's holding in Ramirez, which noted that the text of the Penalty Clause must be paramount in its interpretation, (17) invites a narrow reading of the Clause based on the context of the word "crime."

The idea of using the canons of construction to interpret the "other crime" language has been mentioned by some scholars but has never been explored in depth. John Cosgrove contends that

[t]he references in the Fourteenth Amendment, [section] 3 to persons who "engaged in rebellion" against the United States and who gave "aid or comfort to the enemies thereof," and in [section] 4 to "insurrection and rebellion" invite application of the noscitur a sociis canon of construction under which a general word like "crime" is interpreted in accordance with the words surrounding it. (18) Otis King and Jonathan Weiss make a similar point when they argue that "the majority [in Ramirez] blatantly abandoned any pretense of normal constitutional construction.... [T]he term 'crimes[]' ... must be considered under the well-established doctrine of ejusdem generis (the general must follow the specific)." (19) Thus, they suggest, disenfranchisable crimes "must be at the level of 'rebellion' as well.... If Congress had wanted to define 'crimes' by any other method than putting it in conjunction with 'rebellion' it would have so stated." (20) In addition to those arguments that explicitly employ the textual canons, other scholarship has noted the "unreasonable" reach of the "other crime" exception. (21)

Despite the repeated recognition of the poor textual fit of an expansive interpretation of the Penalty Clause, interpretations of the Penalty Clause utilizing the textual canons remain undertheorized. No other author has noted the important limits that the syntactical pattern of the "other crime" exception places on the constitutionality of felon disenfranchisement statutes. (22)

This Note seeks to fill the gap by explaining how clues from other sections of the Constitution ought to inform our understanding of felon disenfranchisement and the Fourteenth Amendment. Part I of this Note discusses the history and practice of felon disenfranchisement in the United States and includes a detailed discussion of Ramirez's holding and the major challenges it has survived. Parts II and III describe this Note's textual challenge to lower courts' applications of Ramirez. Part II situates this challenge within the existing literature and outlines some reasons why this challenge avoids the pitfalls faced by other strategies. Part III carefully examines the use of the "other crime" construction, examining its interpretation in the Extradition, Grand Jury, and Impeachment Clauses. It then describes the interpretive pattern followed by these other clauses. Part IV applies this pattern to the Penalty Clause. In doing so, it concludes that current interpretations of the Penalty Clause's affirmative sanction for felon disenfranchisement are overbroad. Finally, this Note suggests several possible interpretations of the Penalty Clause that fit better with the rest of the Constitution's text and the current statutory scheme.

1. FELON DISENFRANCHISEMENT IN THE UNITED STATES

   This Part describes the history of felon disenfranchisement in the United States. Section A briefly describes the colonial, eighteenth-, and nineteenth-century practice of felon disenfranchisement, leading up to the Supreme Court's first explicit review of the practice in Richardson v. Ramirez. (23) Section B gives an overview of the Ramirez decision, as well as its implications and key subsequent history. Section B also describes the major challenges to Ramirez and gives some analysis as to why these strategies have been unsuccessful. This discussion both frames and supports the textual arguments presented in Part II.

   1. The Historical Practice of Felon Disenfranchisement

      The history of felon disenfranchisement in the United States has been extensively reviewed in the academic literature on voting rights; the following summary is particularly indebted to Alexander Keyssar's The Right To Vote. (24) This Section does not intend to provide a comprehensive treatment of the history of disenfranchisement laws, but rather to provide context and a brief prelude to the Ramirez decision.

      Disenfranchisement in the United States dates back to the colonial period, although both the length of disenfranchisement and the range of offenses punishable by disenfranchisement were limited compared to disenfranchisement under modern statutes. (25) The historical rationale for disenfranchisement was twofold. First, disenfranchising criminals--whether permanently or for some preset length--was punitive. (26) Felons had committed a grave wrong, the argument went, and the curtailment of voting rights served to punish that wrong. This rationale continued to motivate U.S. disenfranchisement provisions into the nineteenth century. (27) Second, disenfranchisement was seen as a deterrent to future criminal behavior. (28) Although this rationale had no empirical support, many reasoned that disenfranchisement laws would deter criminal activity in those who feared losing their voice in government. (29)

      The Penalty Clause of the Fourteenth Amendment was the first constitutional provision to address felon disenfranchisement. The Clause authorizes states to disenfranchise persons convicted of "rebellion, or other crime" without the size of the state's delegation in the House of Representatives being reduced proportionally. (30) It is clear that the Clause was meant by the Reconstruction Congress to permit at least the disenfranchisement of some ex-Confederate soldiers. Nevertheless, the historical purpose of the Penalty Clause is the subject of much debate.31 Possible purposes of the Clause range from punishing the South to validating states' then-current disenfranchisement practices. (32) The initial impact of the ratification of the Fourteenth Amendment on felon disenfranchisement is unclear.

      In any case, Reconstruction was a period of substantial change. (33) Between the end of the Civil War and the turn of the century, many states either adopted sweeping new laws to disenfranchise felons or broadened the scope of their current disenfranchisement provisions. (34) The rationale for state disenfranchisement...