Reawakening "Privileges or Immunities": An Originalist Blueprint for Invalidating State Felon Disenfranchisement Laws

Article excerpt

I. INTRODUCTION

Terrence Johnson, Jim Harris, and Alexander Friedman, all Tennessee residents, have a few things in common. All are convicted felons: Johnson for federal wire fraud, Harris for drug offenses and burglary, and Friedman for assault and aggravated armed robbery.1 All had completed their respective terms of imprisonment, parole, and probation for those offenses by February 2008.2 But all nevertheless were saddled with various unpaid legal obligations: Johnson with $40,000 in restitution in connection with his offense and $1,200 in overdue child support payments; Harris with $2,500 in overdue child support payments; and Friedman with $1,000 in restitution in connection with his offenses.3 Finally, all wished to vote in the 2008 election4 but could not do so because of a Tennessee statute that conditions the restoration of voting rights for those "rendered infamous" because of a criminal conviction on the payment of courtordered restitution and child support obligations.5 The trio filed suit in advance of the election, hoping to invalidate the statute and, in Johnson's words, "have the opportunity to become . . . fully productive citizenfs] again."6 But in September 2008, a federal judge rejected their challenge.7 As a result, when the November election arrived, these men simply could not vote.

While disenfranchisement laws like Tennessee's may seem extreme, U.S. courts consistently have rejected challenges to statutes that disenfranchise felons both during and after their terms of incarceration.8 In the leading case on the subject, Richardson v. Ramirez, the Supreme Court confronted the issue of whether a California law excluding ex-felons from the franchise could withstand the strict scrutiny analysis ordinarily required for suspect classifications under the Equal Protection Clause of the Fourteenth Amendment.9 The Court did not address this question directly, however, instead finding "affirmative sanction" for felon disenfranchisement laws in the rarely invoked Section 2 of that Amendment.10 That Section provides, in pertinent part:

[W]hen the right to vote at any election ... is denied to any of the male inhabitants of such State ... or in any way abridged, except for participation in rebellion, or other crime, the basis of [the State's] representation [in Congress] shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.11

As a result, the Court never subjected these laws to the strict scrutiny analysis that the Richardson respondents, convicted felons who had served their terms of incarceration, had argued was required by the Court's voting rights jurisprudence.12

There are strong arguments that the majority in Richardson erred when it applied Section 2 of the Fourteenth Amendment to resolve the case. First, Justice Thurgood Marshall's dissent in Richardson offers a persuasive alternative historical reading of Section 2, suggesting that its Framers did not in fact intend that it permit states to disenfranchise their felons.13 Second, a number of scholars have argued that subsequent constitutional developments effectively nullified the meaning of Section 2.14 Third, Richardson focused exclusively on the number of states with felon disenfranchisement laws at the time of the enactment of the Fourteenth Amendment, and did not consider subsequent legislative developments in the states.15 Taken together, these arguments suggest that the Court ought to revisit its application of the Fourteenth Amendment in the context of felon disenfranchisement.

The Court's recent decision in Saenz v. Roe,16 which explored the history of the Privileges or Immunities Clause of the Fourteenth Amendment, may provide an opportunity for such a reexamination. Courts and commentators generally have considered the Privileges or Immunities Clause a nullity since the Slaughter-House Cases.17 In Saenz, however, the Supreme Court "breathed new life" into the Clause for the first time since the Slaughter-House decision, using it to invalidate a California welfare restriction. …