Felon Disenfranchisement: Law, History, Policy, and Politics

Brooks, George, Fordham Urban Law Journal

INTRODUCTION

George W. Bush became the forty-third President of the United States when he won the state of Florida by 537 votes in the 2000 election. (1) Because the election was so close, hotly-contested, and divisive, aspects of our electoral system long relegated to dusty books suddenly became topics of water cooler conversation and cocktail party chatter. Some Democrats speculate that if the nearly 600,000 felons in Florida (2) had been allowed to vote, Al Gore would have been elected President. (3)

Felon disenfranchisement (4) has thus become a cause celebre among liberals. (5) There are approximately four million felons who cannot vote nationwide. (6) They are disproportionately black and Hispanic (7)--constituencies that have traditionally been Democratic strongholds. (8) Embittered by the 2000 elections, Democrats have seized on the goal of extending suffrage to felons in hopes of increasing their traditional voter base, thus helping them win close elections. (9) They face an uphill battle, however, as history, law, and policy weigh against allowing felons to vote.

Part I of this note places felon disenfranchisement in a historical context, highlights significant cases and jurisprudence under the Fourteenth Amendment and the Voting Rights Act, and reviews the scope of its impact today. Part II considers the divergent interpretations of law that have led to uncertainty in the circuits as to whether the Voting Rights Act reaches felon disenfranchisement and when felon disenfranchisement statutes originally enacted with discriminatory intent have been cleansed of that taint. The confusion in the circuits stems from conflicting views of what the history of felon disenfranchisement means and whether there are legitimate underlying policy rationales. Part III argues that the Voting Rights Act does not reach felon disenfranchisement and thus the Fourteenth Amendment is controlling, therefore these laws are only susceptible to attack on constitutional grounds if they were enacted with discriminatory intent. Thus, we are left with policy arguments, which are properly decided in state legislatures.

I. BACKGROUND: HISTORY, JURISPRUDENCE AND IMPACT

A. Early Origins

Felon disenfranchisement has a long history, with origins in ancient Greece. (10) In medieval Europe, it was expressed in the concept of "civil death." (11) In Britain, "outlawry" stripped a criminal of his right to protection of the laws for his life and property. (12) The first disenfranchisement laws in America appeared in the 1600s, typically as punishment for morality crimes such as drunkenness, (13) and were present from the earliest times of the Republic. (14)

The power of the states to establish voter qualifications is found in Article I, Section Two of the United States Constitution, which provides that "the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature." (15) States have "broad powers to determine the conditions under which the right of suffrage may be exercised, absent of course the discrimination which the Constitution condemns." (16) The "wide scope" of power held by the states to set qualifications includes "[r]esidence requirements, age, [and] previous criminal record." (17)

From 1776 to 1821, eleven states adopted constitutions that disenfranchised felons or permitted their statutory disenfranchisement. (18) Virginia was the first in 1776, followed by Kentucky in 1799, Ohio, in 1802, Louisiana, in 1812, Indiana, in 1816, Mississippi, in 1817, Connecticut and Illinois in 1818, Alabama, in 1819, Missouri, in 1820, and New York in 1821. (19) Eighteen more states had followed suit by the time the Fourteenth Amendment was ratified in 1868. (20)

These early laws rested on John Locke's concept that those who break the social contract should not be allowed to participate in the process of making society's rules. (21) Other justifications included the prevention of election fraud, the fear that criminals would weaken laws and their enforcement, and a "purity of the ballot box" concept that felons lack the "moral competence" needed to vote. (22) The Alabama Supreme Court vindicated felon disenfranchisement in Washington v. State (23) on the theory that:

   It is quite common also to deny the right of suffrage, in the
   various American States, to such as have been convicted of infamous
   crimes. The manifest purpose is to preserve the purity of
   the ballot box, which is the only sure foundation of republican
   liberty, and which needs protection against the invasion of
   corruption, just as much as against that of ignorance, incapacity,
   or tyranny. The evil infection of the one is not more fatal than
   that of the other. The presumption is, that one rendered infamous
   by conviction of felony, or other base offense indicative of great
   moral turpitude, is unfit to exercise the privilege of suffrage, or
   to hold office, upon terms of equality with freemen who are
   clothed by the State with the toga of political citizenship. (24)

B. Civil War and Reconstruction

The aftermath of the Civil War wrought enormous changes, in both society and the law. The Thirteenth Amendment, which banned slavery and involuntary servitude (except as punishment for a crime), was enacted in 1865. (25) The Fourteenth Amendment was passed in 1868; Section One contained the Equal Protection Clause and Section Two sanctioned the disenfranchisement of those who participated in rebellion or were convicted of "other crime[s]". (26) The last of the Reconstruction Amendments was the Fifteenth, which was ratified in 1870 and extended the franchise to blacks. (27)

While all three amendments are important for civil rights, the Fourteenth stands out as perhaps the most important constitutional amendment ever passed. (28) Section One provides that,

   No state shall make or enforce any law which shall abridge the
   privileges or immunities of citizens of the United States; nor
   shall any state deprive any person of life, liberty, or property,
   without due process of law; nor deny to any person within its
   jurisdiction the equal protection of the laws. (29)

The Equal Protection Clause in Section One has been the basis on which modern courts have been able to strike down laws and practices that intentionally discriminate on the basis of race, as stated or as applied. (30) Section Two diminishes state representation in Congress as a punishment for states that infringe voting rights, unless those rights are abridged "for participation in rebellion, or other crime." (31)

Due to ambiguities in Section One, Section Two lends itself to dual interpretation. First, it can be viewed as a "remedy," (32) or perhaps more accurately as a punishment, by reducing a state's representation in Congress when it violates a right protected in Section One. (33) Alternatively, it can be construed as an implicit authorization to deny black suffrage; the "remedy" does not prevent a violation, it only provides a punishment for the occurrence. (34) Politically, either construction would have been acceptable to the Republicans of the Reconstruction era. Either blacks would have been enfranchised and would presumably have voted for Lincoln's Republican party, (35) or they would not have been allowed to vote, which would have reduced Southern--and predominately Democrat--representation in Congress by invoking Section Two; thus increasing Northern--and mostly Republican--representation in Congress. (36)

Union troops occupied the Confederacy during Reconstruction and despite enfranchising nearly one million former slaves, (37) they continued to enforce laws denying the vote to convicted felons. The Military Reconstruction Act of 1867 specifically exempted convicted felons from exercising the franchise. (38) Before former Confederate states were readmitted to the Union, they were required to ratify the Fourteenth Amendment (39) and bring their state laws into "conformity with the Constitution of the United States in all respects." (40) Upon meeting these requirements, Congress then passed enabling acts which formally readmitted a state to the Union. (41) These acts placed "fundamental condition[s]" on states regarding suffrage. (42) Arkansas provides a typical example, being the first former Confederate state to be readmitted to the Union, in June 1868. (43) The Act of June 22, 1868 provided in relevant part:

   That the State of Arkansas is entitled and admitted to
   representation in Congress as one of the States of the Union upon
   the following fundamental condition: That the constitution of
   Arkansas shall never be so amended or changed as to deprive any
   citizen or class of citizens of the United States of the right to
   vote who are entitled to vote by the constitution herein recognized,
   except as a punishment for such crimes as are now felonies
   at common law, whereof they shall have been duly convicted,
   under laws equally applicable to all the inhabitants of said
   State.... (44)

Despite the lofty goals of the Reconstruction era, Jim Crow came to dominate the South as Reconstruction ended, and blacks were socially and politically excluded from full participation in the life of the nation. (45) Their right to vote was systematically denied through use of poll taxes, (46) grandfather clauses, (47) and property tests, (48) as well as literacy tests (49) and intimidation. (50)

The Supreme Court participated in this process by dismantling what Congress had accomplished in the Reconstruction Amendments. (51) The Court construed the Amendments very narrowly in the Slaughter-House Cases, (52) concluding that the Thirteenth Amendment was intended only to combat discrimination against former slaves and gutting the privileges and immunities clause of the Fourteenth Amendment. (53) In 1883, the Civil Rights Cases (54) held that the Fourteenth Amendment applied only to state action, thus declaring the Civil Rights Act of 1875 unconstitutional. (55) The Court also restricted Congress's power under the Thirteenth Amendment by ruling that the refusal to serve a black person in a public accommodation was not a "badge of slavery" and thus was beyond Congress's reach. (56) Justice Harlan's dissenting argument that Congress could reach public accommodations under the Fourteenth Amendment would have to wait until the so-called Second Reconstruction began in the 1950s. (57) Finally, in Plessy v. Ferguson (58) in 1896, the Court validated the concept of "separate but equal" under the Fourteenth Amendment. (59)

Felon disenfranchisement was sometimes used as a tool by the states to disenfranchise blacks. (60) Some Southern states passed laws disenfranchising those convicted of what were considered to be "black" crimes, while those convicted of "white" crimes did not lose their right to vote. (61) For example, South Carolina disenfranchised criminals convicted of "thievery, adultery, arson, wife beating, housebreaking, and attempted rape," but not those convicted of murder or fighting. (62) Mississippi modified its broad, earlier law--which disenfranchised convicts of "any crime"--to specifically target "black" crimes. (63)

Although five Southern states passed felon disenfranchisement laws targeting blacks from 1890 to 1910, more than eighty percent of states nationwide already had felon disenfranchisement laws by that time. (64) "[O]utside the [S]outh, disenfranchisement laws 'lacked socially distinct targets and generally were passed in a matter-of-fact fashion.'" (65) The Supreme Court twice upheld felon disenfranchisement as a punishment for polygamy in the late nineteenth century, noting it "is not open to any constitutional or legal objection." (66)

C. Modern Era

The full realization of equal rights, including voting rights for black Americans, would have to wait for nearly a century. (67) As the Civil Rights movement progressed, various obstacles that had prevented blacks from voting were eliminated. The Twenty-Fourth Amendment, ratified in 1964, eliminated poll taxes. (68) New life was breathed into the Reconstruction Amendments--the Fourteenth Amendment became a "potent tool" in achieving justice for minorities. (69)

To correct the past failure of the Reconstruction Amendments to enfranchise African-Americans in practice, particularly in the South, Congress passed the Voting Rights Act of 1965, which outlawed discriminatory voting devices such as literacy tests. (70) Section Two of the Act prohibited any "voting qualification or prerequisite to voting or standard, practice, or procedure ... imposed or applied ... to deny or abridge the right of any citizen of the United States to vote on account of race or color." (71) Congress used its enforcement powers under Section Five of the Fourteenth Amendment (72) and Section Two of the Fifteenth Amendment (73) to enact the Voting Rights Act. (74) The Act was tremendously successful in extending suffrage to black Americans. (75)

Despite facing judicial scrutiny under the Fourteenth Amendment and the Voting Rights Act in the 1960s and 70s, felon disenfranchisement laws were almost always found to be constitutional. (76) Stephens v. Yeomans was the one exception, which found New Jersey's felon disenfranchisement law unconstitutional under the Fourteenth Amendment. (77) In Yeomans, the court could "perceive no rational basis for the ... classification" of felons as a group that could not vote. (78) In the subsequent case of Fincher v. Scott, (79) however, a district court in North Carolina openly mocked the Yeomans court's holding and reasoning. (80) The Supreme Court itself seemed to acknowledge the validity of felon disenfranchisement but did not rule on the issue directly. (81)

D. Judicial Challenges Under the Fourteenth Amendment

The tension between Sections One and Two (82) of the Fourteenth Amendment was settled when the Supreme Court decided Richardson v. Ramirez (83) in 1974. (84) Three convicted felons who had served their sentences and completed probation brought a class action suit when they were not allowed to register to vote. (85) The California Supreme Court held that disenfranchisement of felons who had served their time and completed parole--under provisions of the state constitution of 1879 (86)--was a violation of equal protection under Section One of the Fourteenth Amendment because California could not assert a compelling state interest to justify the practice. (87)

The U.S. Supreme Court reversed, citing the plain language of Section Two of the Fourteenth Amendment, and its historical and judicial interpretation. (88) The Court held that the framers of the Amendment intended to exclude felons from the franchise. (89) After an initial draft was rejected by the Senate, the language, "except for participation in rebellion, or other crime," was not changed despite several debates and proposed revisions. (90) More specifically, although it granted that the legislative history bearing on the words "or other crime" was scant, the Court found it consistent with the clear wording of the section. (91) Senator Henderson of Missouri felt that Section Two was an improvement on the earlier draft because disenfranchisement would follow for black and white alike. (92) Likewise, Senator Drake of Missouri had introduced the modifying phrase "under laws equally applicable to all the inhabitants of said State" to the Act readmitting Arkansas (93) so that felon disenfranchisement laws would not be used to disenfranchise blacks. (94)

Despite contemporaneous decisions by the Court striking down state voter qualifications on equal protection grounds, (95) felon disenfranchisement was distinguishable because it receives an "affirmative sanction" in Section Two of the Fourteenth Amendment. (96) Richardson held the framers' intent to be of "controlling significance" in distinguishing felon disenfranchisement from other state laws restricting the franchise that the Court had struck down as violating the Equal Protection Clause. (97) Section One of the Fourteenth Amendment could not have been meant to bar a form of disenfranchisement expressly permitted in Section Two. (98)

In his dissent, however, Justice Marshall emphasized that there was no clear purpose behind Section Two and speculated that it was included in the Fourteenth Amendment for "political exigency" by Republicans who wished to either benefit from the votes of black Southerners or, if only white Southerners were allowed to vote, to dilute Democratic strength once Confederate states were readmitted to the Union. (99) The majority's reliance on coeval laws such as the Reconstruction Act showed nothing more than that felon disenfranchisement was a common practice at the time. (100) "'[C]onstitutional concepts of equal protection are not immutably frozen like insects trapped in Devonian amber,'" (101) however, thus allowing one-year residency requirements, specifically permitted in the Reconstruction Act, to be struck down by the Supreme Court in modern times. (102) Because voting is a "'fundamental' right," (103) any restriction must rise to the level of a compelling state

interest under the Equal Protection Clause. (104) Marshall wrote that felon disenfranchisement did not meet this standard because it was not sufficiently narrowly tailored to prevent voter fraud and because groups of voters could not be excluded based upon presumptions of how they might vote. (105)

Both the majority and the dissent claim the mantle of the democratic process. Marshall observed that when the suit was filed, twenty-three states allowed ex-felons to vote. (106) By the time of their decision, four more states had done so. (107) Justice Rehnquist, writing for the majority, opined that whatever the merits of the policy arguments against felon disenfranchisement, it was for state legislatures to pass judgment on the persuasiveness of those claims. (108)

The ability of the states to bar criminals from voting under Section Two, however, is not without limit. In Hunter v. Underwood, two plaintiffs--one black, one white--challenged their disenfranchisement for crimes of moral turpitude, a misdemeanor, on the grounds that section 182 of the Alabama Constitution of 1901 was adopted with the purpose of disenfranchising blacks and that it had had that effect. (109) Alabama contended that intervening decades and the removal of egregiously racist provisions of section 182, such as the ban on miscegenation, had erased the original discriminatory taint. (110)

On appeal, the Supreme Court held that nothing in Section Two of the Fourteenth Amendment permits intentional racial discrimination which otherwise violates Section One. (111) Although section 182 was facially neutral as to race and was equally applied, (112) it had been explicitly enacted with the purpose of furthering white supremacy, and continued to have that effect. (113) Alabama had curtailed suffrage prior to 1901, but the state's constitutional convention that year expanded the list of enumerated "black" crimes and added the phrase "crimes of moral turpitude" to broaden criminal disenfranchisement. (114) This had the intended discriminatory effect: by 1903, ten times as many blacks as whites had been disenfranchised. (115)

The Court rejected an argument that intervening decades and the removal of explicit racism had legitimated the statute because the original intent and effect were still present. (116) It left open the possibility, however, that a facially neutral law "might overcome its odious origin" by amendment. (117) Notably, the Court declined to decide whether section 182 would be constitutional if it were enacted today without any discriminatory intent. (118)

The Hunter court left open the possibility that a law enacted with discriminatory intent could be subsequently cleansed of that taint by amendment. (119) In Cotton v. Fordice, the Fifth Circuit addressed the opening when it denied a Hunter-based challenge to Mississippi's felon disenfranchisement law. (120) Although the facially neutral Mississippi law in question was enacted with discriminatory intent, (121) the court found it had been cleansed of that intent. (122) The court distinguished Mississippi's law from the Alabama law in Hunter because Mississippi voters had affirmatively expanded their state's law without discriminatory intent, whereas the Alabama provision was shorn of discriminatory-intent crimes by the courts. (123)

The Fourth Circuit is in accord on this point. In Allen v. Ellisor, the court held that South Carolina's felon disenfranchisement laws were constitutional because they had been revised and amended since being enacted eighty years earlier. (124) The court was also persuaded by the defendant's argument that the amended laws postdate the Voting Rights Act and had thus been cleared by the Attorney General. (125) Similarly, in Howard v. Gilmore, (126) the court dismissed on appeal all claims brought by a convicted felon attempting to regain his right to vote. (127) The plaintiff could not show that the state acted with intent to discriminate on the basis of race as the Virginia statute in question was enacted in 1830, predating black enfranchisement, nor could the plaintiff demonstrate …

Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: Felon Disenfranchisement: Law, History, Policy, and Politics. Contributors: Brooks, George - Author. Journal title: Fordham Urban Law Journal. Volume: 32. Issue: 5 Publication date: September 2005. Page number: 851+. © 2009 Fordham Urban Law Journal. COPYRIGHT 2005 Gale Group.

This material is protected by copyright and, with the exception of fair use, may not be further copied, distributed or transmitted in any form or by any means.