Academic journal article Brigham Young University Law Review

The Prisoner's Campaign: Felony Disenfranchisement Laws and the Right to Hold Public Office

Academic journal article Brigham Young University Law Review

The Prisoner's Campaign: Felony Disenfranchisement Laws and the Right to Hold Public Office

Article excerpt

I. INTRODUCTION

The 2002 race for Ohio's 17th District congressional seat included three candidates: Democrat Tim Ryan of Niles, Ohio; Republican Ann Womer Benjamin of Aurora, Ohio; and Independent James A. Traficant Jr. of Federal Prison, Pennsylvania.1 On April 9, 2002, Ohio Congressman James Traficant was convicted of ten counts of bribery, racketeering, filing false tax returns, and forcing aides to do chores around his Ohio farm.2 As a result of these convictions, on July 24, 2002, Traficant was kicked out of Congress by a vote of 420 to 1.3 On July 30, Traficant was sentenced to eight years in a federal prison in White Deer, Pennsylvania.4 Throughout the trial and congressional hearings, Traficant maintained his innocence and threatened to run for office from his prison cell. "I'm running," he said, "and I wouldn't be surprised if I'm elected from a jail cell because people know I got railroaded back here."5 True to his word, Traficant was on the ballot when the citizens of Ohio went to the polls on November 5, 2002.6 Although Traficant was defeated, one looming question remains: had he been elected, could Traficant have legally taken his seat in Congress?

Many Americans may not realize that jail time is not the only possible consequence of a felony conviction. Currently, millions of Americans are denied access to the polls under state laws that preclude convicted felons from voting. These state voter disenfranchisement7 laws have come under attack in recent years; opponents of the laws argue that they have an unconstitutional effect on the political process, including denying the vote to over ten percent of the African-American population.8 Along with voter disenfranchisement laws, many states have candidate disenfranchisement laws, which do not allow convicted felons to run for political office. This particular aspect of disenfranchisement laws has received little attention, but the 2002 Ohio congressional race had the potential to bring this issue to the forefront.

An analysis of disenfranchisement laws reveals that, while Traficant could not have voted in an election or held a state-elected office in Ohio, he very likely could have represented the people of Ohio in the federal government. In other words, the State of Ohio can deny Traficant the right to vote for his representative in Congress, but it cannot keep him from being that representative. This perplexing result arises out of the Supreme Court's interpretation of the Qualifications Clauses of the Constitution.9 While courts have consistently upheld voter disenfranchisement and state candidate disenfranchisement laws, Supreme Court precedent suggests that a convicted felon could run for federal office. However, the history and policy behind both voter and candidate disenfranchisement laws support federal candidate disenfranchisement laws as well.

This paper compares the judicial interpretation of and the policies behind voter and candidate disenfranchisement laws. Part II summarizes the felony disenfranchisement laws of the fifty states and the District of Columbia. Part III reviews the judicial interpretation of those laws. Part IV analyzes whether Traficant could have taken office if elected, concluding that while Ohio law prohibits convicted felons from holding office, the Supreme Court's interpretation of the Constitution likely would allow a convicted felon to hold federal office. Part V analyzes the purposes behind voter and candidate disenfranchisement laws, asserting that policy may not support denying an ex-felon the right to vote after completion of the sentence but concluding that the states' interest in protecting their citizens does support at least a partial ban on allowing ex-felons to hold public office. Part VI suggests a possible compromise to solve the disparity between voter and candidate disenfranchisement laws. A brief conclusion follows in Part VII.

II. DISENFRANCHISEMENT LAWS

Losing the right to vote as a result of a felony conviction and losing the right to hold public office as a result of that conviction are inextricably linked. …

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