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Excerpted From: Michael B. Mushlin, Validity of laws that restrict voting rights of felons,  3 Rights of Prisoners § 16:12 (5th ed.) October 2018 Update) (50 Footnotes)


Michael MushlinThe first major case challenging restrictions on voting by felons to reach the Supreme Court was Richardson v. Ramirez, 418 U.S. 24, 94 S. Ct. 2655, 41 L. Ed. 2d 551 (1974). In that case, three felons who had served their sentences challenged a California statute that disenfranchised for life any person who had been convicted of an “infamous” felony. The plaintiffs contended that the statute violated the Equal Protection Clause. They argued that the right to vote was an important constitutional right that could only be limited if necessary to the extent needed to protect an important governmental interest, that there was no such interest here, and that to the contrary, a law that restricted voting by ex-felons disserved the government's interest in rehabilitation and in reintegration.

The Supreme Court, in an opinion by Justice Rehnquist, rejected the claim. The majority concluded that the plaintiffs' Fourteenth Amendment equal-protection claim was barred by the very amendment under which it was brought. It is true, the majority conceded, that the equal-protection provision of the Fourteenth Amendment bars irrational distinctions between similarly situated groups. If this were the only applicable provision in the Fourteenth Amendment, state laws barring all felons from voting would be subject to judicial scrutiny. However, a little-known provision of the Fourteenth Amendment contemplates that states may deny the vote to persons who have participated “in rebellion or other crime.” Justice Rehnquist interpreted that provision to mean that the drafters of the Constitution authorized states to exclude felons from the franchise. Thus, an inmate's claim to the right to vote was distinguished from the claim of other citizens who have been deprived of the right to vote.

This holding was consonant with decisions of lower courts decisions from that time. In one well-known case, Judge Henry Friendly offered a philosophical justification for laws that deprive felons of the right to vote. Basing his argument on John Locke's theory that society is a compact between the rulers and governed, Justice Friendly reasoned that a person who commits a crime breaks that covenant and therefore forfeits the right to participate in the democracy by voting. Judge Friendly wrote that:

it can scarcely be deemed unreasonable for a state to decide that perpetrators of serious crimes shall not take part in electing the legislators who make the laws, the executives who enforce the laws, the prosecutors who must try them for further violations, or the judges who are to consider their cases.

Other, more recent, decisions have struck the same theme reasoning that state legislatures can rationally conclude that persons who have broken the criminal laws “could fairly have been thought to have abandoned the right to participate in further administering” government through participation in the political process of selecting government officials.

Richardson dealt with felons who had served their sentences. However, its reasoning granting the states broad powers to control access of felons to the ballot box, applies with even greater force to felons who are still incarcerated. Under Richardson, states may have the power to decree that all felons are disenfranchised. Does Richardson grant the states unbridled power to grant the franchise to some felons while withholding it from others? The Supreme Court has not answered this question and in the absence of a ruling, lower courts have split.

Courts that have held that the power to limit the franchise to particular groups of felons have pointed to the fact that the Supreme Court in Richardson itself “acknowledged that unequal enforcement [of laws prohibiting felons from voting], if proven, could be unconstitutional.” These courts also highlight the absurdities that could result if there were no constitutional limitation on the power to withhold the franchise from a particular group of inmates. If that were the case, then, as the Third Circuit put it, the state might be able to “disenfranchise blue-eyed felons, but not brown-eyed felons.” Thus, the state may not make “a completely arbitrary distinction between groups of felons with respect to the right to vote.” Applying this standard, a state law that took away the vote from inmates who had been convicted of “wife abuse” but did not deprive other inmates convicted of assault of the right to vote was declared unconstitutional.

Even courts that take this view do not hold that distinctions among felons for the purposes of voting cannot be drawn. Challenges to a common scheme that prohibits inmates serving sentences in state prison from voting but restores the right to vote after service of the sentence have uniformly been upheld. These cases hold that it is rational for a state to determine that “those convicted felons who had served their debt to society and had been released from prison … stand on a different footing … and should … be entitled to participate in the voting process.”

So far in our discussion, we have not addressed the racial implications of laws that restrict voting by inmates and felons generally. That issue was presented in Hunter v. Underwood, the second and latest voting case to reach the Supreme Court. Hunter dealt with an Alabama disenfranchisement law that was challenged on the ground that it was intended to discriminate against black voters. The law was a provision in the 1905 Alabama Constitution that prohibited persons convicted of “infamous crimes” from voting. The Court held that there was overwhelming historic evidence that the provision was part of a plan to discriminate against blacks by establishing a system of white supremacy in the state. Accordingly, it struck it down.

The Hunter holding is important. It potentially leaves vulnerable many state laws prohibiting inmates from voting. This is because of the reality that the felon disenfranchisement laws disproportionately impact minority populations. For this reason, Hunter led to a revival in litigation as plaintiffs sought to have voting prohibition laws invalidated on the grounds that they discriminated against blacks and Hispanics. The law in this area remains unsettled but to date, most of the cases have not been successful.

The post-Hunter cases take two paths. One path is to argue that the voting laws are unconstitutional examples of racial discrimination prohibited by the Fourteenth Amendment. A second path is to argue that even if the laws are not unconstitutional, they violate the Federal Voting Rights Act. Neither path has thus far been successful.

The first path, taking the position that the laws are unconstitutional, has not led to victories for plaintiffs. Without firm proof that the laws were actually intended to take blacks and Hispanics off the voting rolls, courts have uniformly rejected these claims even when the plaintiff could show that the laws had a strong discriminatory effect. These cases “have limited severely the impact of Hunter's intent test … [and] have made it extraordinarily difficult for plaintiffs even to survive a motion to dismiss.” A prominent example is a recent Florida case brought on behalf of all Florida citizens who have been convicted of a felony and successfully completed all terms of incarceration, probation, or parole, but who are still ineligible to vote under Florida's felon disenfranchisement laws.” To prove disparate impact, the plaintiff relied on statistical evidence which showed that 10.5% of African Americans in the State of Florida are prohibited from voting because of a felony conviction as opposed to 4.4% of the non-African American Floridians who have lost their right to the franchise because of a felony conviction. To establish racial animus, the plaintiffs relied on testimony from Florida's most prominent historian who testified that racial animus was the likely source of the provision of the Florida Constitution when it was passed in 1868. The revised 1968 constitution reviewed and modified the disenfranchisement provision limiting it to convicted felons and was adopted after extensive review. Based on this evidence, the court found that Florida's disenfranchisement provision in the 1968 constitution was not enacted with discriminatory intent. The court put great weight on the reenacted laws from 1968 which narrowed the class of disenfranchised individuals, thereby removing any discriminatory taint. In addition, the court relied on the plaintiff's inability to prove that there was racial discrimination at the time of the reenactment.

The second line of cases, attacking the laws as violating the Voting Rights Act, has not been more successful. The Voting Rights Act prohibits any voting practice or procedure that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” To establish a violation of this provision of the Act, it must be shown, based on “the totality of the circumstances,” that “the political processes are not equally open to participation by members of a class of citizens … in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” An influential law review article developed a theory that to establish such a claim, it is not necessary, as is true with a constitutional challenge, to show that the laws were intentional acts of discrimination, as long as the result is that racial minorities have less than “equal access to the process of electing their representatives.”

Utilizing that theory, lawyers for plaintiffs have argued that under section 2, “while a State may choose to disenfranchise some, all or none of its felons based on legitimate concerns, it may not do so based on distinctions that have the effect, whether intentional or not, of disenfranchising felons because of their race.” This theory had some initial success. It was accepted by a panel of the Second Circuit which reversed a district court decision dismissing a complaint raising the theory to attack New York's felony disenfranchisement law. However, the full court granted rehearing en banc. The panel decision was then vacated when the panel opinion was unable to garner support from a majority of the members of the court.

Other courts take even more stringent views opining that “Congress did not intend for the Voting Rights Act to apply to felon disenfranchisement provisions.” One court said that it would not ascribe such an intent unless Congress “make[s] its intention to override state [felony disenfranchisement] laws unmistakably clear in the language of the statute.” An additional reason given for upholding the voting laws despite a racial challenge under the Voting Rights Act is that “felons are not disenfranchised based on any immutable characteristic, such as race, but on their conscious decisions to commit an act for which they assume the risks of detention and punishment.” In a development contrary to American decisions, The Supreme Court of Canada decided in 2002 that denying Canadian felons the right to vote violates the Canadian Charter of Rights and Freedoms.

Despite these setbacks the effort to find avenues to challenge restrictions on felony disenfranchisement laws continues but so far without notable success. For example the Ninth Circuit, in an en banc opinion held that Washington State's statute for the restoration of civil rights following a convict's completion of sentence did not violate section 2 of the Voting Rights Act, absent evidence that minorities were less able to complete the eligibility requirements for restoration than nonminorities. Indeed, the Ninth Circuit held that to prevail in this type of case the plaintiff must show that the criminal justice system in question is “infected by intentional discrimination.” And in Johnson v. Bredesen, the Sixth Circuit upheld a state law regarding which conditioned the restoration of a felon's voting rights on full restitution to victims and being current child support payments.

Despite the unsuccessful results of this litigation, there is nothing that prevents a state from extending the franchise to prisoners who are otherwise qualified to vote, should it choose to do so. Indeed commentators have urged this reform. Standard setting bodies have also called for ending felony disenfranchisement laws. The American Bar Association for example in its standards Collateral Sanctions and Discretionary Disqualification provides that voting rights other than during the period of confinement should not be taken away.

There are solid reasons why a state may wish to do so as a matter of good public policy. Granting the right to vote to inmates can be an important tool in reintegrating offenders back into society by strengthening their ties with the free-world community to which they will return. Since so many hundreds of thousands of inmates who are currently stripped of their right to vote are members of minority groups, granting the right to vote would also contribute to making the electorate more representative of the nation. Taking steps to rectify this problem will produce “a more equitable and inclusive franchise.” The trend in this direction has been emerging as voting-rights restoration efforts have been recently successful in several states through legislative efforts and popular support for amending of state constitutions. According to data compiled by the Brennan Center for Justice “[o]ver the past two decades, more than 20 states have taken action (legislative or executive) to allow more people with past criminal convictions to vote, to vote sooner, or to access that right more easily.”

If the state chooses to grant suffrage to some or all of its inmates, it must take steps to make sure that those inmates who have the right to vote are given reasonable access to the ballot box. The state can provide that access in a variety of ways, but the most common method is by use of the absentee ballot.

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