Voting Rights and the History of Institutionalized Racism: Criminal Disenfranchisement in the United States and South Africa

• Jurisdiction: United States,Federal
• Citation: Vol. 44 No. 2
• Publication year: 2016
• topic: Civil Rights,Constitutional Law,Criminal Law

Voting Rights and the History of Institutionalized Racism: Criminal Disenfranchisement in the United States and South Africa

Brock A. Johnson^*

Table of Contents

I. Introduction...............................................................................403

II. Background [U.S.]......................................................................412

A. The Changing Face and Form of Felon Disenfranchisement Laws in the United States........................412

1. Criminal Disenfranchisement Prior to the Civil War.......414
2. In the Aftermath of the Civil War: Reconstruction and the Introduction of Race in Laws of Criminal Disenfranchisement...........................................................415
3. The Current State of Felon Disenfranchisement in the United States......................................................................418
4. The Unique Nature of Felon Disenfranchisement Laws in the United States............................................................ 420

B. The Disparate Racial Impact of Felon Disenfranchisement Laws in the United States ......................................................... 423
C. Efforts to Challenge Felon Disenfranchisement Laws in the United States......................................................................424

1. Fourteenth Amendment Challenges..................................424
2. Previous Challenges to Felon Disenfranchisement under the Voting Rights Act...............................................427
3. The Ninth Circuit Changes the Game (And Then Changes Its Mind) ............................................................. 430

III. Background [South Africa]....................................................433

A. History, Content, and Structure of the South African Constitution .............................................................................. 433
B. The Constitutional Court of South Africa ................................ 437

[Page 402]

C. Transformative Constitutionalism............................................438
D. Criminal Franchise in South Africa: August and NICRO.......439

IV. Analysis.......................................................................................444

A. A Shared History of Racial Discrimination.............................444
B. Transformative Constitutionalism, Felon Disenfranchisement, and the Weight and Influence of History......................................................................................446
C. A New Vision of Felon Disenfranchisement Reform in the Federal Courts of the United States.........................................448

V. Conclusion..................................................................................450

[Page 403]

I. Introduction

In the United States, 5.85 million people were disenfranchised because of felony convictions as of 2010.¹ No other democratic country in the world disenfranchises more people, in both total numbers and population percentage, because of criminal convictions.² Unlike countless other voting restrictions and regulations contested in the courts,³ felon disenfranchisement laws have long been a constitutionally viable method of limiting suffrage in the United States.⁴ Further, discussion of felon disenfranchisement—until recently—has escaped thorough debate.⁵ Yet, despite the long history of criminal disenfranchisement in the United States, and the possible value such laws provide to the democratic process, any category of law that restricts suffrage to such a significant extent should be subject to heightened judicial review and vigorously debated.

Like most voting regulations in the United States, felon disenfranchisement provisions are made at the state level.⁶ Two states, Maine and Vermont, allow individuals to vote while they are in prison, placing virtually no regulation on suffrage relative to criminal convictions.⁷

[Page 404]

In the United States, these states are outliers.⁸ The majority of states place voting restrictions on individuals who are not incarcerated but continue to be under state supervision through probation or parole.⁹ A significant minority of states continue to restrict voting rights after an individual has completely served his sentence;¹⁰ a subset of these states prohibit access to the ballot indefinitely for individuals convicted of a felony.¹¹

Although voting regulations continue to be firmly within the competence of state governments, significant and unprecedented federal oversight of such regulations became a unique hallmark of modern voting laws beginning in the Civil Rights Era.¹² Significantly, the Voting Rights Act of 1965 and the Supreme Court's changing view of constitutional protections resulted in numerous federally required changes to state election law in the latter half of the twentieth century.¹³ Central to such new federal regulation was the notion of the necessity to protect voting rights for marginalized minorities, particularly African-Americans, who had previously been subject to discriminatory treatment under the election laws of many states.¹⁴

Like many facially neutral state election regulations invalidated by the Voting Rights Act, felon disenfranchisement laws share the quality of disproportionately affecting minority populations in the United States.¹⁵ This is an unavoidable consequence of the current American criminal justice system, a system that continues to disproportionately convict and incarcerate racial minorities.¹⁶ For a myriad of reasons—from practical realties of how

[Page 405]

local police departments target crime to systemic failures of due process such as the misuse of preemptory strikes in jury selection and a currently overstrained right to effective assistance of counsel—the American criminal justice system convicts and incarcerates a greater relative portion of African-Americans than any other subset of the population.¹⁷ Thus, this group is most acutely impacted by felon disenfranchisement. Whether this should be accepted by a nation with a living memory of state mandated differential treatment of minority populations, considering further the implications and context of such treatment, is a matter deserving of significant political debate.

Although the Civil Rights movement in the United States launched changes and reforms in race relations that continue to this day, no democratic country has confronted the effects of the differential treatment of citizens based on race and group status in the modern era like South Africa. When the death knell of Apartheid was finally heard, South Africa became a nation reborn.¹⁸ Political leaders in South Africa enacted an entirely new constitutional regime, premised primarily on the need to end the historic oppression of minorities and to construct a new democracy free of the discrimination central to the Apartheid government.¹⁹ This process required nothing short of near total re-invention. The modern reimagining and reconstruction of the democratic ideal seen in the South African Constitution—and subsequent interpretive jurisprudence—presents a powerful point of comparison to the aging Western model, itself subject to the unfortunate warts and bruises of history.

[Page 406]

In April 1994, South Africa held universally free, open democratic elections for the first time since the rise of Apartheid.²⁰ it was the first election in the country's history in which all races could freely participate.²¹ The presidential candidate elected, Nelson Mandela, had been released from prison only four years earlier, after being incarcerated for twenty-seven years and stripped of his fundamental rights, including his right to vote, by the then reigning Apartheid regime.²² This powerful symbol was not lost on the new South African government. In the wake of Apartheid, the South African government tackled its history of racial oppression by drafting a new, transformative, non-discriminatory constitution to govern their republic.²³ Brought into law in 1996, the Constitution of South Africa protects an impressively expansive array of political and social rights;²⁴ it is now considered a high-water mark among democratic constitutions throughout the world.²⁵

Section 19(3) of the Constitution of South Africa provides that "every adult citizen has the right to vote in elections for any legislative body established in terms of the Constitution."²⁶ This bedrock of universal suffrage has allowed the South African Constitutional Court to consistently protect access to the ballot. Two landmark Constitutional Court cases involving prisoners' right to vote have given further support to the strength of universal suffrage.²⁷ In August v. Electoral Commission, the South African Constitutional Court wrote:

[Page 407]

The achievement of the franchise [of universal adult sufferage] has historically been important both for the acquisition of the rights of full and effective citizenship by all South Africans regardless of race, and for the accomplishment of an all-embracing nationhood . . . The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts.²⁸

Although neither August nor subsequent case law stand for the notion that the right to vote is absolute and can never be limited by government regulation, South African case law evidences support for a high bar to the lawful imposition of any such limitation.²⁹

The South African approach to criminal disenfranchisement is admirable and instructive. Rejecting the institutionalized racial discrimination of its recent past, South Africa has embraced the modern variant of the democratic ideal.³⁰ Since its formation, the South African Constitutional Court has conducted thorough and careful interpretation of their constitution—and the rights afforded and protected therein—with regard to many issues and areas of the law.³¹ In South Africa's constitutional backdrop, if not always explicitly or emphatically mentioned, rests the notion of an...