The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A couple of years ago, Virginia was embroiled in a noisy political dispute involving voting rights for ex-felons. All States (except Vermont and Maine) prohibit convicted felons from voting while they are incarcerated. But Virginia (and 10 other States: AL, AZ, DE, KY, IA, MS, NE, NV, TN, and WY), goes further, and permanently disenfranchises convicted felons—permanently, as in forever, even after they have served their time and completed their term of imprisonment and/or probation or parole—unless their rights are restored individually by a gubernatorial "clemency" action. [See the excellent report by the Sentencing Project on "State Felony Disenfranchisement, 2016"] The VA Democratic governor at the time, Terry McAuliffe, was proposing a blanket restoration of those ex-felon voting rights, and there was fierce opposition from the Republican-dominated State Legislature. [The Brennan Center has a good summary of the Virginia dispute here]
In the aggregate, these State laws bar over six million people from voting—around 2.5% of the voting age population in the country. About a quarter of these are people who are currently in prison. But a majority (51%) of the disenfranchised are individuals who have completed all parts of their sentences successfully and are now back in the community, trying, one would hope, to put their lives back together again. [Relevant statistics are here]
Coincidentally, while the Virginia battle was playing out on the local news here in DC, I was working on several constitutional challenges to the provisions in State "sex offender" laws that deprive individuals previously convicted of "sex offenses" of their right to work at certain jobs, or to use certain Internet resources, or to live in certain neighborhoods, or to enter school buildings or parks or other public facilities. [As it happens, this work did bear fruit, ultimately, in last Term's decision in Packingham v. North Carolina].
There's a fairly substantial body of case precedent on these issues as they pertain to sex offender statutes, and I had been digging into it for a while when it suddenly struck me that I hadn't seen any reference in those cases to cases on the constitutionality of State disenfranchisement laws. That seemed odd. Surely there must have been such cases, and, given how widespread disenfranchisement laws still were, the practice must have been upheld as constitutional.
I needed to find those cases, because they could make it considerably more difficult to craft the argument(s) that I was trying to make; if the government can deprive the entire class of ex-convicts of a fundamental right (to vote), that could be a strong basis on which the State could argue that it can constitutionally deprive a subset of the class of ex-convicts—those who had been convicted of "sex offenses"—of their fundamental rights (to assemble with others, to speak, to live where they choose).
I needed to find them, also, because I was straining to imagine how courts could possibly have upheld the constitutionality of State felon-disenfranchisement laws. There is surely no more fundamental right in a republic than the right to vote, and, ordinarily, governmental deprivations of fundamental rights receive the strictest judicial scrutiny: The government must show that it is pursuing a "compelling" interest, that the action it has taken is necessary to achieve its purpose, and that it has been "narrowly tailored" to that end, i.e., that all feasible steps had been taken to minimize the scope and extent of the deprivation.
What is the compelling interest being served by depriving people who had felony convictions of their right to vote? How could the States' meat-ax approach of disenfranchising all felons alike—bank robbers, murderers, car thieves, drug sellers, con artists, embezzlers, counterfeiters, etc.—have been adjudged "narrowly tailored" to achieve its purpose? What is its purpose?
I quickly discovered that there had indeed been cases challenging the constitutionality of felon disenfranchisement, and they turned on one of those Constitutional provisions hardly anyone ever looks at or thinks about.
Everyone knows (or at least knows of) Section 1 of the Fourteenth Amendment: "No State shall … 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." But I suspect that many fewer have ever read through Section 2 of that Amendment, which reads in full:
"Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein 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."
In Richardson v. Ramirez, 418 US 24 (1974), the Supreme Court held that the language in Section 2 italicized above assumes that States can deny its citizens the right to vote, inasmuch as it specifies the consequences in the event they do so: Their representation in the House of Representatives (and the Electoral College) will be correspondingly and proportionately reduced by the number of people so deprived of the right, unless the disenfranchisement is for "participation in rebellion" or "other crime," in which case the State's numerical basis for its representation is not reduced.
The purpose of Sec. 2 was to given States of the former Confederacy an incentive to provide full political rights, including the franchise, to freed slaves. The first sentence repeals the notorious "three-fifths clause" of Art. I Sec. 2 (which counted slaves as 3/5 of a person for purposes of determining representation in the House). This would substantially increase the relevant size of the southern States, and Radical Republicans were concerned about that, and about the likelihood that the southern States would not permit those freed slaves to vote. Hence the second sentence: States could disenfranchise people for reasons other than their participation in rebellion "or other crime"—e.g., race, or property qualifications—but if they did so, they would not be able to count those individuals in determining their share of the House.
The conclusion seems inescapable: At least at the time of passage of the 14th Amendment, felon disenfranchisement would not have been deemed a violation of the Equal Protection or Due Process Clause because, as the Court put it in Richardson, "those who framed and adopted the Fourteenth Amendment could not have intended to prohibit outright in § 1 of that Amendment that which was expressly exempted from the lesser sanction of reduced representation imposed by § 2 of the Amendment."
Wearing my advocate's hat, I was relieved; voting, it turns out, is different from other fundamental rights. Because of Sec. 2, a different rule applies to deprivations of the right to vote, which would not receive the "strict scrutiny" that would be applied to deprivations of other fundamental rights. (Which explains why there were no citations to the disenfranchisement cases in the cases involving abridgements of sex offenders' rights to live and work and speak and assemble.)
But as a citizen, I found it disheartening. Whatever Congress' views of the constitutionality of State felon disenfranchisement laws were in 1865, in my own personal constitutional universe I like to think that all government action that impinges on truly fundamental rights should be given "strict scrutiny"—and the Court's unwillingness to do so, for whatever reason, does not relieve us of our obligation as citizens to do so. And as I said, I cannot imagine a persuasive argument that would convince me that felon disenfranchisement serves some compelling government interest, or that it has been carefully and narrowly tailored to minimize its rights-destructive impact.
Which brings me to Florida. The numbers from Florida are particularly appalling. It has, by far, the highest disenfrachisement rate in the country; around 1.7 million adult Floridians cannot vote in federal, state, or local elections under Florida's disenfranchisement law, amounting to approximately one in every ten adult Floridians (up from one in 50 in 1980), and approximately one in every five adult African-Americans. Florida alone accounts for more than a quarter (27 percent) of the disenfranchised population nationally, and its nearly 1.5 million individuals who are disenfranchised after completion of all sentencing requirements account for nearly half (48 percent) of the national total of individuals in that category.
It's disgraceful, and a group called Floridians for a Fair Democracy announced, on January 23, that their "Florida Second Chances" campaign had surpassed the 766,200 signature threshold to place an amendment to the Florida constitution that would to restore voting rights to most (though alas, not all) ex-felons on the 2018 ballot.
It's not all that complicated, to my eye. People who commit crimes should be punished. Their punishment can include depriving them of cherished and fundamental rights—that's the price they pay for criminal behavior. But once it has been paid, the full panoply of their constitutional rights should be restored. That should be the law. I used to think, naively, that that was the law. I sincerely hope that Florida voters agree with me.