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Janai S. Nelson

Abstracted from: Janai S. Nelson, The First Amendment, Equal Protection, and Felon Disenfranchisement: a New Viewpoint , 65 Florida Law Review 111 (January, 2013)(288 Footnotes)


       “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics . . . .”-Justice Robert H. Jackson

      Along the arc of right to vote challenges, felon disenfranchisement has proved an especially intractable form of vote denial. Despite robust academic and popular skepticism concerning the constitutionality of felon disenfranchisement laws, they persistently evade successful legal challenge. This is, in part, because courts routinely interpret the legal precedent establishing the constitutionality of felon disenfranchisement broadly to the exclusion of other claims. In Richardson v. Ramirez, the Supreme Court held that Section 2 of the Fourteenth Amendment implicitly authorizes states to deny voting rights based on a felony conviction. Courts have generally relied on Ramirez to bar equal protection challenges to felon disenfranchisement's disparate impact and its unequal treatment of citizens with felony convictions and other citizens.

      However, two important developments since Ramirez challenge the seemingly unfettered discretion that legislatures exercise to enact and maintain felon disenfranchisement statutes. The first development is a subtle doctrinal shift that has linked the First and Fourteenth Amendments in the realm of political participation outside the areas of campaign finance and ballot access. First Amendment principles have increasingly surfaced in voting qualification and political restructuring cases since the Supreme Court decided the one person, one vote cases of the 1960s. More recently, the Court's partisan gerrymandering opinions-majority, concurring, and dissenting-have acknowledged the First Amendment's relevance to contemplating fairness and equality in the electoral process. The First Amendment, although not applied directly, seems to be influencing the scrutiny in such cases (some more than others), resulting in heightened constitutional protection in the electoral arena.

      The second development since Ramirez is one that predates the Court's partisan gerrymandering claims and directly limits Ramirez. Although Ramirez held that state felon disenfranchisement laws do not violate the Equal Protection Clause per se, in Hunter v. Underwood, the Court held that the Equal Protection Clause prohibits states from disenfranchising citizens with felony convictions if the disenfranchisement is motivated by race. Put another way, if the motive to deny the right to vote is based on race, the regulation violates the Equal Protection Clause despite Ramirez's sanction of felon disenfranchisement. This Article applies the Hunter rationale prohibiting race discrimination to a theory of viewpoint discrimination in the enactment and maintenance of felon disenfranchisement laws. The principal claim is straightforward: If a state's motive or interest in denying voting rights to citizens with felony convictions is based on how those persons might vote, then the regulation denies those citizens equal protection of the laws and fails strict scrutiny. In short, an impermissible motive that constrains a fundamental right is constitutionally suspect.

      But how can the Equal Protection Clause apply to viewpoint discrimination, which falls squarely and traditionally within the domain of the First Amendment? This Article advances the under-explored theory of “First Amendment Equal Protection” to address the equality concerns in the electoral sphere that engage both the First and Fourteenth Amendments. First Amendment Equal Protection is a unique species of equal protection that is informed by First Amendment protections of free speech and expression in the political realm. By applying First Amendment principles, First Amendment Equal Protection fortifies the equal protection inquiry by (1) requiring clear government standards, (2) broadening justiciability of claims, (3) providing leniency toward facial challenges, and (4) increasing judicial fact-finding. These four factors distinguish First Amendment Equal Protection from conventional equal protection and counteract, in part, the Court's disregard of disparate impact.

      This Article proceeds as follows. Part I lays the groundwork for the viewpoint discrimination claim against felon disenfranchisement laws. In addition to defining viewpoint discrimination, Part I analyzes the Court's jurisprudence in a series of cases concerning residency requirements and other voting qualifications that reveal a judicial theory of viewpoint discrimination in voting regulations. It then examines the justifications for felon disenfranchisement that form the basis of a viewpoint discrimination claim, identifying both the perceived viewpoint that legislatures intend to exclude and the viewpoint that is ultimately excised from the electoral process. Part II introduces First Amendment Equal Protection as a viable theory in which to couch a viewpoint discrimination claim. In light of the lack of precedent applying the First Amendment directly to voting cases and the strength of the Equal Protection Clause in this area, First Amendment Equal Protection maximizes the equality protections for the right to vote through the combined force of both doctrines.

      Part III considers three challenges to applying First Amendment Equal Protection to a viewpoint discrimination claim against felon disenfranchisement. First, it briefly explores the omission of First Amendment jurisprudence from election law and the question of whether voting is speech. Second, it recognizes the formidable impact of Ramirez in the Equal Protection context as a shield against challenges to felon disenfranchisement laws. Finally, using the Court's partisan-gerrymandering cases starting with Vieth v. Jubilierer, this Part unpacks the opinions to demonstrate that, as in excessively partisan redistricting, viewpoint discrimination in felon disenfranchisement poses a danger of excessive legislative manipulation of the political process. As evidenced in its political-gerrymandering jurisprudence, the Court is concerned about the boundaries of state influence in the electoral process. The concerns raised by felon disenfranchisement are not materially different.

      The Article concludes that a viewpoint discrimination-based challenge to felon disenfranchisement laws would not necessarily lead to the undoing of these pervasive regulations. Rather, such a challenge reveals the unconstitutionality of certain justifications for these laws and, in some cases, may provide a sufficient basis for repealing state statutes that are based on these motives.

* * *

      Of the U.S. Constitution's twenty-seven amendments, five expand the right to vote to include groups of citizens that were once denied that right for what would now be considered discriminatory purposes. Some groups once considered “unpopular” under the law were denied the right to vote based on the same moralistic and functional justifications that are today used to defend felon disenfranchisement. It is well-established that Ramirez permits intentional discrimination against citizens with felony convictions, in the form of vote denial, because of their status as felons. It stretches Ramirez's holding beyond constitutional limits, though, to interpret it to permit intentional discrimination in the form of vote denial because of how felons may vote.

      As the development of election law directs us toward more nuanced conceptions of equality in the political arena, the justifications for felon disenfranchisement laws-especially when viewed in the context of their impact on racial minorities and poor populations-weaken significantly. Because there is no “organizing principle to ‘the law of politics,”’ cross-pollination between substantively related doctrines like the First Amendment and Equal Protection can inform the protection of the right to vote against various forms of discrimination, even those society is not yet willing to recognize. Indeed, if we take seriously Justice William O. Douglas's trenchant pronouncement that “the Equal Protection Clause is not shackled to the political theory of a particular era,” then expanding current conceptions of the Clause's interaction with other fundamental rights is appropriate. The opinion in Harper v. Virginia Board of Elections, from which this observation originates, further counsels that “[n] otions of what constitutes equal treatment for purposes of the Equal Protection Clause do change,” especially concerning the protection of fundamental rights. This is particularly true concerning groups that have been disfavored or discriminated against historically. Undeniably, the central lesson of the century-plus struggle toward universal suffrage, and the expansion of constitutional protections more generally, is that “an understanding of our Constitution, for our Constitution will be tested again and again by unpopular people and unpopular causes.” Applying First Amendment Equal Protection to felon disenfranchisement laws that are grounded in viewpoint discrimination meets this challenge by safeguarding and connecting the principles of equality in the constitutional provisions where they are valued most.


. Associate Professor and Associate Director of the Ronald H. Brown Center for Civil Rights and Economic Development, St. John's University School of Law.