The Uncertain Future of Felon Disenfranchisement.

• Author: Cain, Bruce E.

ABSTRACT

Felons represent a large majority of disenfranchised adult Americans, with a significant proportion remaining unable to vote even after completing the entirety of their sentences. As voter eligibility requirements become an increasingly contested partisan battlefield, the fate of these disenfranchised individuals has become increasingly unclear. With this backdrop in mind, we consider recent developments in felon disenfranchisement, the prospects for future legislative action, and the legal arguments that litigants might employ to challenge the practice. In so doing, we exploit newly collected polling data to determine (1) whether Americans are ready to end felon disenfranchisement, and (2) under what circumstances they believe felon disenfranchisement constitutes excessive punishment. Examining these results, we conclude that the prospects for an immediate end to felon disenfranchisement are limited and that a categorical challenge to disenfranchisement under the Eighth Amendment would be doomed to fail. However, our results do suggest that a limited set of "gross disproportionality" challenges could plausibly succeed in states with lifetime disenfranchisement laws. We finish by discussing the disparate impact of disenfranchisement laws on African-Americans and consider the prospects for challenging these laws under the Voting Rights Act.

INTRODUCTION

In 2018, Floridians voted to eliminate lifetime disenfranchisement for all felons, leaving Iowa and Kentucky as the only states to continue the practice. (1) Florida's most popular newspapers all endorsed the campaign, with several publishing lengthy discussions of the subject. (2) These editorials focused much of their criticism on two characteristics of Florida's existing law: its excessively punitive nature and its disparate racial impact. The Tampa Bay Times opened its piece by discussing the lives of former felons convicted of minor crimes before concluding that Florida's disenfranchisement rules "serve[] no purpose but to perpetually punish them." (3) The Palm Beach Post focused instead on the racial implications of disenfranchisement, observing, "[T]he outrageous reality is that more than one in five voting-age blacks can't vote in Florida, compared with about one in 10 voters in the state's general population." (4) The Miami Herald bluntly summarized both sentiments in four words: "It's unfair, it's racist." (5)

These two arguments--that felon disenfranchisement constitutes disproportionate punishment and discriminates against racial minorities--are among the most frequently cited in public debates over the practice. (6) They also map neatly onto prominent legal and legislative challenges to felon disenfranchisement. Both scholars and litigants have asserted that felon disenfranchisement constitutes an "excessive" sanction in violation of the Eighth Amendment; (7) similarly, they have claimed that these laws violate Section 2 of the Voting Rights Act of 1965 ("VRA") and the Equal Protection Clause of the Fourteenth Amendment. (8)

Felon disenfranchisement is not a monolith, however. States vary tremendously in what felonies they punish with disenfranchisement; (9) how long disenfranchisement lasts; (10) and what process ex-cons must go through to seek restoration of their voting rights. (11) At one extreme, Iowa and Kentucky permanently disenfranchise all felons unless their rights are individually restored by the governor. (12) On the other end of the spectrum, felons in Maine and Vermont are never disenfranchised and are permitted to vote while in prison. (13)

Disenfranchisement practice has also changed with some frequency, often in the direction of greater ballot access. Twenty-three states since 1997 have moved towards restoring the voting rights of individuals who have been convicted of felonies. (14) But as restrictive voting laws generally have become a weapon of electoral advantage on a partisan battleground, the trend toward easing existing felon voting restrictions may be losing momentum and could even reverse direction in the future. We have already seen one prominent example of recession. Six months after eliminating its permanent felon disenfranchisement law, Florida's House passed HB 7089, a bill that would delay the restoration of voting rights until an ex-felon's outstanding financial obligations are resolved. (15)

It is against this backdrop that we evaluate the political and legal prospects of restoring felon voting rights. Is there sufficient public support for removing more of the existing restrictions, and if so, which ones? Are Eighth Amendment challenges likely to succeed against the practice of permanently disenfranchising felons, and if so, to what degree? And in the wake of recent Court decisions concerning the VRA, does that statute provide adequate protection against politically motivated efforts to roll back felon voting rights?

In examining these questions, we draw extensively on a new survey of public attitudes on this topic conducted in conjunction with YouGov (hereinafter "the May Survey"). (16) We find that most of the public is still resistant towards ending felon voting restrictions entirely and that a majority is still hesitant to allow those on probation and parole to vote. Moreover, we observe that perceptions of party advantage may be polarizing--and therefore hardening--views about felon voting rights, which will greatly complicate the chances of forging a bipartisan consensus on this matter. With respect to change via the legal system, we conclude that "excessive punishment" claims under the Eighth Amendment can be powerful but only when presented on behalf of low-level ex-offenders facing extensive periods of disenfranchisement. The disproportionate effect that these laws have on minority communities shows there is room for discrimination-based claims in felon disenfranchisement cases, but the recent neutering of Section 5 of the VRA has removed a powerful line of defense against any future attempts to roll back felon voting rights.

With these topics in mind, we have organized the remainder of this piece into three parts. In Part I, we focus on the likelihood of legislative action given the viewpoints on this issue that our survey respondents revealed. In Part II, we consider the viability of legal claims based on the "excessive punishment" paradigm, particularly with regard to the lifetime disenfranchisement laws all felons face in Kentucky and Iowa. However, given the limited scope of Eighth Amendment legal challenges, we devote Part III to discussing the broader disparate impact problem inherent in this country's felon disenfranchisement practices.

PART I: PUBLIC ATTITUDES AND THE CHANGING CONTEXT OF FELON DISENFRANCHISEMENT

Changes in U.S. politics over the last few decades have framed and shaped the felon disenfranchisement issue in crucial ways. Specifically, U.S. electoral politics has become more professionalized, polarized, and closely contested. (17) Professionalization refers to the rising importance of paid, fulltime political consultants. While campaigns for office at the federal, state, and city level still recruit and mobilize volunteers to contact voters and perform various administrative functions in campaign offices, candidates rely on professionals to do the polling, fundraising, media-buying, event-planning, higher-level management, and campaign strategy formulation. This has driven up the costs of campaigning and put more pressure on candidates to fundraise. More to the point (at least in the context of felon voting restrictions), it has also contributed to a winning-above-all mindset that embraces gaming election rules for political advantage. (18)

Grassroots activists and volunteers tend to prioritize issues and value personal ties to the candidate. (19) For professional consultants, however, campaigns are a business. Consultants take a more instrumental approach to elections--they emphasize winning, staying in business, and building a reputation for being successful above pursuing losing ideological causes. As the campaign consultant class has grown, the instrumental ethos has become more pervasive, contributing to a disturbing trend in recent politics: namely, manipulating voter qualification and election administration rules to favor client candidates and party organizations. (20) In some idealized world, all eligible citizens would engage with campaigns and candidates would try to persuade them to vote for them. In the U.S., however, this vision remains unrealized. Electoral participation is far from universal and can be raised or lowered by changing voting rules and qualifications. (21) As such, while candidates will go out of their way to encourage likely supporters to register and vote, they are also inclined to discourage their opponents from participating. One way to achieve the latter is to tighten eligibility rules in targeted ways.

The political professionalization trend coincides with another: the increasing partisan polarization of American politics. Starting in the 1960s but accelerating through the Reagan Administration, the two major parties have sorted along racial and ideological lines. (22) Divergence between the median Democratic and Republican policy positions has widened substantially in both Congress and state legislatures, and political elites tend to cluster at opposite ends of the ideological spectrum. (23) This trend has two important effects. First, it has raised the policy stakes of being in power--or at least being in position to block the other party's policy in a divided government situation. Second, by racializing the divide between the parties, partisan polarization has conflated party and racial interests. (24) As a result, tactics that expand or restrict voter eligibility along partisan lines implicitly serve divergent policy and racial interests. Expanding voter eligibility tends to help the increasingly nonwhite Democratic...