Why Can Felons Be Denied the Right to Vote?

Felons retain their free speech rights. Some recent court decisions conclude that some felons regain their Second Amendment rights. But the right to vote is different, according to the constitutional text.


Occasionally, people ask about the constitutional basis for denying felons the right to vote (set aside here the policy arguments about that). There's a good answer to that, I think

First, note that the Constitution never secures a right to vote, the way it secures a right to free speech or a right to keep and bear arms. It leaves the matter to each state, and provides that, even in federal elections, who may vote shall be determined by whom each state allows to vote in state elections. Of course, various amendments have barred the government from discriminating based on race, sex, payment of poll tax, and age (over 18); but no constitutional text goes beyond that.

The Supreme Court has interpreted the Equal Protection Clause, in section 1 of the Fourteenth Amendment, as generally requiring "strict scrutiny" of laws that discriminate in voting (including when they use criteria that would be allowed in other contexts). But right there in section 2 of the Fourteenth Amendment is a provision that expressly contemplates states' denying people the right to vote based on criminal record.

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. [Emphasis added.]

Given that it is section 1 of the Fourteenth Amendment that has been read as generally securing a constitutional right to vote, I think that right has to be read in light of the restrictions that section 2 says are tolerable. And that is precisely what the Supreme Court held in Richardson v. Ramirez (1974) (some paragraph breaks added):

Despite this settled historical and judicial understanding of the Fourteenth Amendment's effect on state laws disenfranchising convicted felons, respondents argue that our recent decisions invalidating other state-imposed restrictions on the franchise as violative of the Equal Protection Clause require us to invalidate the disenfranchisement of felons as well….

As we have seen, however, the exclusion of felons from the vote has an affirmative sanction in § 2 of the Fourteenth Amendment, a sanction which was not present in the case of the other restrictions on the franchise which were invalidated in the cases on which respondents rely. We hold that the understanding of those who adopted the Fourteenth Amendment, as reflected in the express language of § 2 and in the historical and judicial interpretation of the Amendment's applicability to state laws disenfranchising felons, is of controlling significance in distinguishing such laws from those other state limitations on the franchise which have been held invalid under the Equal Protection Clause by this Court….

[We] rest on the demonstrably sound proposition that § 1, in dealing with voting rights as it does, could not have been meant to bar outright a form of disenfranchisement which was expressly exempted from the less drastic sanction of reduced representation which § 2 imposed for other forms of disenfranchisement. Nor can we accept respondents' argument that because § 2 was made part of the Amendment "'largely through the accident of political exigency rather than through the relation which it bore to the other sections of the Amendment,'" we must not look to it for guidance in interpreting § 1. It is as much a part of the Amendment as any of the other sections, and how it became a part of the Amendment is less important than what it says and what it means.

Pressed upon us by the respondents, and by amici curiae, are contentions that these notions are outmoded, and that the more modern view is that it is essential to the process of rehabilitating the ex-felon that he be returned to his role in society as a fully participating citizen when he has completed the serving of his term. We would by no means discount these arguments if addressed to the legislative forum which may properly weigh and balance them against those advanced in support of California's present constitutional provisions.

But it is not for us to choose one set of values over the other. If respondents are correct, and the view which they advocate is indeed the more enlightened and sensible one, presumably the people of the State of California will ultimately come around to that view. And if they do not do so, their failure is some evidence, at least, of the fact that there are two sides to the argument.

Some readers might ask whether section 2's implicit endorsement of the constitutionality of requirements that voters be "male" and "twenty-one years of age" would similarly render constitutional restrictions on voting by women and by 18-to-20-year-olds. The answer, I think, is surely yes—which is why it took the Nineteenth Amendment and the Twenty-Sixth Amendment to specifically forbid such voting restrictions. (Note that voting restrictions may also be unconstitutional if they are motivated by a desire to discriminate based on race, see Hunter v. Underwood (1985). But many laws barring felons from voting were motivated by hostility to felons generally, not hostility to a particular racial group.)

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  1. “many laws barring felons from voting were motivated by hostility to felons generally, not hostility to a particular racial group”

    What foolishness is this? Disenfranchising felons is racist, dude!


      1. Just because you linked to the arguments sarcastically doesn’t mean they’re not correct.

        1. I looked into those arguments about Florida – the problem is that in the state constitution of 1845 – where non-whites were disenfranchised on racial grounds – there was still a clause providing for the disenfranchisement of certain (white) convicts.

          In the Reconstruction Convention of 1868, there were certain provisions designed to limit black political power, but felon disenfranchisement, carried over from prior policy, was not one of these provisions.

          In the subsequent Jim Crow conventions of various Southern states, they actually allowed certain felons to vote, so long as those felons were convicted of what the conventions considered “white” crimes.

          But this is a tad too nuanced for what I call the ketchup progressives – they put accusations of “racism” on everything.

          1. From the first Florida Constitution, drafted in 1838 and taking effect in 1845:

            “ARTICLE VI.

            “…Section 1. Every free white male person of the age of twenty-one years and upwards (etc., etc.) shall be deemed a qualified elector (etc., etc.)

            “Section 4. The General Assembly shall have power to exclude from every office of honor, trust or profit, within the State, and from the right of suffrage, all persons convicted of bribery, perjury, or other infamous crime.”

            1. Correction: Mississippi’s Jim Crow Constitution allowed convicted murderers and rapists to vote, because murder and rape were considered “white” crimes. As the 5th circuit noted in upholding Mississippi’s felon disenfranchisement policy, the state corrected this in 1968, when it finally agreed to disenfranchise convicted murderers and rapists.

              So I’d say that you’re a racist if you want convicted murderers and rapists to vote. /sarc

              1. From an earlier Mississippi Constitution, in 1817, when black voting was (shall we say) not really a concern, Article VI Sec. 5 provided: “Laws shall be made to exclude from office and from suffrage those who shall thereafter be convicted of bribery, perjury, forgery, or other high crimes or misdemeanors.”

          2. I don’t deny that there are non-racist motives behind the felon voting prohibitions, and to the extent race is a motive its based on partisan motives rather than racial animus.

            But I think modern felon prohibitions are not that dissimilar from voter ID laws, the partisan motivations have the same consequence as racist motivations, to disproportionately reduce the political power of a given racial group.

            I don’t see a legitimate benefit for felon disenfranchisement that justifies these costs.

              1. I wasn’t saying partisan was racist, I was drawing a clear distinction.

                But surely you recognize that an attempt to suppress black votes, with partisan intent, still translates to a racist policy.

                It is not as abhorrent as if the intent was racism, but it is still highly objectionable.

                1. I guess you *are* one of those ketchup-oriented progressives.

  2. (Note that voting restrictions may also be unconstitutional if they are motivated by a desire to discriminate based on race, see Hunter v. Underwood (1985). But many laws barring felons from voting were motivated by hostility to felons generally, not hostility to a particular racial group.)

    May public statements by legislators be used as evidence to establish a racial motivation?

    1. Sitting legislators or merely candidates for office?

      1. Either one.

        Bad motives don’t change into good ones by the magic of winning an election. Wednesday morning’s winner is the same person as Monday evening’s candidate.

        1. True, but statements made on the campaign trail don’t necessarily reflect a candidates true motives.

          1. Too bad for the candidate then.

            Besides, suppose we have a race between an incumbent and a challenger – hardly uncommon. Shouldn’t both be held to the same standard?

            1. Incumbents already have a significant advantage over challengers. Suggesting that challengers should be held to the same standard because “level playing field” boarders on being delusional.

              1. Yes, incumbents do have a political advantage, but that is no reason to grant challengers legal advantages.

                Good-looking candidates have an advantage too, all else equal. Should we give their opponents some legal privilege to make up for it?

        2. Anyway, the person you are obviously talking about confirmed it after he swore the oath.

    2. There’s another pair of issues that are important with respect to old disenfranchisement laws. Until fairly recently those convicted of a crime serious enough for imprisonment could not have much effect on voting with respect to either numbers or racial disparity.

      In the 1920s the rate of imprisonment was about .04% of the total population per year (that’s combining state /and/ Federal institutions). While there was black over-representation, it was fairly small compared to today (21% black prisoners versus about 10% of the population).

      Changes in relative numbers of incarceration and percent of prisoners black both occurred slowly. Blacks as a percentage of state prisoners reached 40+% in the late 1970s (where it is today). Overall rates of incarceration began skyrocketing at the same time, from about 200 per 100,000 in 1970 to about 950 per 100,000 by 2000. The U.S. position as a world leader at imprisoning its citizens has not long existed.

      Why go into all of this? To make the point that until pretty recently, laws disenfranchising felons simply wouldn’t have been expected to have much effect on the numbers or race of voters.


      1. (continuation)

        Further, the War on Drugs, and maximum-minimum sentencing long had the enthusiastic support and encouragement of major parts of the black community, including the Congressional Black Caucus. It wasn’t a plot to cut down on black voters but a response to the extreme social disorganization of the 1960’s-80’s.

        That is not to say that a certainly political party might not, after-the-fact, see an advantage and want to keep it, but while that’s an intriguing possibility it wasn’t causative.

        American incarceration

        Race of prisoners 1926 to 1986

        1. Pox, this may be sort of a stretch, or it may not be. Being a prisoner isn’t the issue. Being a convicted felon is, and for this discussion that is a lasting status, even after release.

          Wouldn’t it be possible, if white prisoners were serving longer terms on average, for the percentage of blacks with lasting felony status to be notably larger than their percentage at any given time in the prison population? If prosecutors were overcharging lots of inherently minor crimes by blacks, who then served comparatively short sentences, albeit for felonies, they could move through the prisons, get out, and be replaced by other blacks, all the while increasing the convicted felon percentage for blacks in the general population, without much budging the percentage needle among the prison population.

          I have no idea if that happened, but it doesn’t seem far-fetched to me. Then, if the severity of sentences for blacks increased, that could account for an increase in the fraction of blacks among the prison population, without necessarily even needing more black criminals in the population at large.

  3. Note that Section 2 ALSO requires that “the basis of representation therein” (referring, presumably, the basis upon which States are represented in both Congress and in the number of electors for President and Vice President) “shall be reduced in the proportion which the number of such male citizens [i.e., those disenfranchised based on criminal convictions] shall bear to the whole number of male citizens twenty-one years of age in such State.”

    Which raises a number of questions: (1) Are the decennial census figures upon which Congressional seat allocations are based adjusted as required by Section 2? (2) There is nothing in either the 19th or 26th Amendments which alters the formula for proportional reduction set forth in Section 2 of the 14th Amendment. Does this mean that women who are denied the right to vote based on a felony conviction can be ignored in that proportional reduction? And can males between the ages of 18 and 20 who are similarly disenfranchised also be ignored?

    1. A felony conviction is an explicitly permitted cause for disenfranchisement, it doesn’t invoke that clause regardless of sex , race, or age

    2. As Brett mentions, there is no proportional reduction for disenfranchisement based on crimes. In fact, it doesn’t even seem to be limited to felonies or other serious crimes.

      A better question is can Section 2 ever be implemented? It seems like the Supreme Court has forbidden all forms of voting disenfranchisement (except for felony convictions), so what kind of voting impediments would the Supreme Court permit that would then trigger Section 2 and require a proportional reduction of representation?

      And if such a scenario was possible, would the proportional reduction be based on males over the age of 20 only, or would the proportional reduction factor in the later amendments protecting suffrage for females and 18-20 year olds?

  4. No that’s backwards – the Representative count is reduced for the number of disenfranchised males NOT FOR reason of rebellion or crime.

  5. An Emily Litella moment – “Oh, never mind.” I didn’t read carefully enough.

    1. It’s not exactly worded in the most straightforward way, IMHO.

    2. Based on a strict reading of the Amendment, if women or men aged 18-20 were denied the right to vote by state law for a reason other than a criminal conviction, that would be ignored for purposes of calculating the reduction in that state’s representation, and only the proportion of male citizens 21 and over who are denied the right to vote for such reasons would be used to calculate it. I really don’t expect that provision to ever be invoked in that manner, but technically it could be.

  6. The way I see it there is nothing particularly egregious about deprivation of suffrage compared to all the other penalties we exact. The problem is if it is made permanent especially if the government is making a net profit through tax money off the individual at the same time. If the individual has served his duly deserved punishment and if he no longer a net drain on the state I generally would agree their rights that they’re paying for should be restored.

  7. Just like most gun control was purposed to deny guns to newly freed blacks.

    Denying Americans the ability to vote and keep and bear arms is just racist anti-American behavior.

    1. I don’t know about *racist*. My cousin, who was a bit of an idiot and forged a check with my grandmother’s signature when he was 19, did his time, and has been a model citizen since his release from prison, is a white guy who lost his right to vote in my home state, Kentucky. I don’t know whether he has or hasn’t done this, but it is my understanding that, in order to have his voting rights reestablished, he must apply to the governor for a restoration of his civil rights. And he still can’t own a gun. All this for being an idiot and forging a check.

      I don’t necessarily agree with the law, but to say that it’s racist is a fairy ignorant statement. It affects ex-convicts equally. The color of their skin has nothing to do with the fact that they’ve broken the law.

      1. “though I stress that it is focused on the practice of the U.S. Supreme Court; other courts may have different customs”

        Actually, in many cases it has a significant impact on the likelihood that they will be prosecuted and convicted.

      2. The laws to disenfranchise ex-prisoners from voting were designed as racist attempts to keep blacks from voting. Voting is not a mentioned right in the Constitution and blacks were being arrested for minor offenses and getting over a year in prison by the tens of thousands to hundreds of thousands. It was a devious and racist way to keep a lot of blacks from voting.

        The fact that these laws also affect other races does not mean that the laws original purpose was not racist.

        The reason that prisoners cannot vote is because historically large state facilities could alter local elections because all the prisoners vote a certain way and might outnumber local residents.

  8. Black people disproportionately vote Democrat and are disproportionately convicted of felonies. If felons are denied the vote that creates an incentive for Republican governments to create more black felons and for Democratic governments to create fewer.

    Surely people can recognize that introducing additional partisan motivations into the criminal justice system will have negative consequences.

    1. Very true.

      Black folks used to vote Republican because of Lincoln. The Democrats offered free shit and the voting demographic changed.

      The Democratic Party is massively racist but there were certainly some racist Republicans too.

      1. Black folks used to vote Republican because of Lincoln. The Democrats offered free shit and the voting demographic changed.

        Try reading an actual history book sometime and learn a little about the Republican and Democrats parties and how they changed since Lincolns assasination and maybe you wouldn’t look like an idiot when posting.

      2. By “free shit” I assume you mean civil rights?

        1. No, I mean AFDC/TANF, EITC, Section 8 vouchers, affirmative action grants, WIC, EBT cards, etc.

  9. I can’t understand how one can make a straight-faced argument in front of the Supreme Court of the United States that it would be better if the explicit language of the Constitution were ignored. Or rather, I don’t understand how one can do so and not get laughed out of court. How is this any different than a Congress member or the President proposing to ignore a ruling of the Supreme Court?

  10. Would it be legal for a state to have property qualifications for voting, as some states did when the Constitution was adopted? I would think that the answer is yes — and that it should not matter why a state’s legislators put it in place. (Though I would be motivated by a desire to prevent welfare recipients from continuing to vote themselves more money.)

    1. No. It would not be legal. See Harper vs. Virginia Board of Elections.

      We conclude that a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax.

      1. A BS decision, much like Reynolds v Sims and every other from that era

        1. “Every other” is a tad overexclusive.

  11. I’d just note that loss of franchise is not the only lifetime penalty imposed om certain persons who have otherwise served their time & “paid their debt” to society for certain crimes.

  12. So, what color was that Texas lady who got five years in prison for failing to notice that clause 26 of subpart B in Part 12 of Chapter 17 said she couldn’t vote until she finished ducking and shuffling before the Kleptocracy after having filled out looter tax forms incorrectly?

    1. You’re assuming she actually did make a mistake. But it wouldn’t have been much of a defense if she’d said that she didn’t expect to be caught, so she was of course going to claim it was by mistake.

      The reason she was convicted is that her claim that it was by mistake wasn’t believed.

      1. It would also be kind of a stupid thing to do on purpose, hoping not to be caught.

        Quit defending the indefensible.

        1. Well, her felony conviction was for the same sort of stupidity, so why is this shocking?

    2. Is that the case where the woman was still on supervised release from a felony conviction?

      To be sure, she was convicted of helping people evade the IRS, so part of me says more power to her (just kidding, if any IRS lawyers are reading this), but on the other hand she *was* strictly speaking still serving a felony sentence at the time. This wasn’t a case of “omg lifetime disencranchisement!”

      1. IIRC she got what struck me as an excessive sentence for a nonviolent crime, though I don’t think we have to look for racism to explain this.

        But I could be wrong. How about this experiment – trying being a *white* tax-dodger, especially if you’re helping other people dodge taxes, and see how lenient the system is with you.

        1. IIRC she got what struck me as an excessive sentence for a nonviolent crime,

          You think? Hey, those Texans are going to crack down on those millions of illegal voters, whether they exist or not.

          1. I meant the crime of helping people avoid taxes.

            1. I think the formal sentence was 5 years.

              I don’t know what the sentence was for the voter fraud, but if you’re serving a felony sentence you should keep away from the ballot box. In Texas (like most states), they let you vote again when your sentence ends.

              (see here – “Pursuant to Section 11.002 of the Texas Election Code (the “Code”), once a felon has successfully completed his or her punishment, including any term of incarceration, parole, supervision, period of probation, or has been pardoned, then that person is immediately eligible to register to vote.”)

              1. The woman does exist, but looking at the story, it seems both sentences were excessive – the sentence for “cheating” the IRS and the sentence for illegal voting.

                If the underlying felony had been a violent offense like armed robbery, I wouldn’t complain about the sentence – except to say it was too lenient.

              2. It was five years for the vote fraud. Not clear what it was for the tax stuff.

                Too bad she’s not a blonde right-wing nut. Then she would have gotten off, and Brett would have approved.,

                1. That looks like a very interesting Hustler article about the voter-fraud allegations against Coulter – so let’s stipulate that Hustler is right.

                  The overly-harsh penalties for “cheating” the IRS and for voting while still serving one’s sentence, are a Bad Thing. They are a bad thing because such stiff sentences should be reserved for violent felons – so if someone robbed me at gunpoint and then tried to vote while still on supervised release, I’d expect to see them get a comparatively harsh sentence.

                  But this is getting us off the topic of disenfranchising felons.

                  Only Florida and a few other states say convicted felons can *never* vote (unless permitted by the governor or other politician) – the usual rule is a felon can’t vote while serving their sentence.

                  So getting past the wickedness of Ann Coulter and the excessive sentence in this Texas case, do you think *any punishment at all* would be appropriate for a convicted felon trying to vote *while still serving their sentence*?

                  At what point should convicted felons get their vote back? Or should they vote while still in prison?

                  1. I think a felon, or anyone else, who tries to vote illegally should be subject to a fine at worst, unless there is proof that it was part of a larger scheme to affect the election. (Of course I also think that the vast majority of “anti-vote fraud legislation” is part of a large scheme – by far the biggest – to unfairly influence elections.)

                    I don’t think someone out on probation should be sent back to prison for it, or face any worse punishment than anyone else.

                    I also don’t think, contra Brett, that the judge not believing a plausible explanation of a mistake is enough to merit a jail sentence, or even a conviction, for that matter. And this was plausible.

                    To answer your last question I think it should be restored automatically upon completion of sentence. I wouldn’t object if prisoners were allowed to vote, though I can accept that they are not. I very much dislike the fact that they count towards representation in the prison’s district. It’s just one more distortion of our election process.

                    1. Agreed on that last point, if there’s a way to exclude prison populations from population counts for representation purposes, that would be excellent.

  13. Disenfranchising Democrats is the only reason we need to keep the policy in place.

    1. Thanks very much for your help.


      1. Bad people shouldn’t be allowed to vote. One can’t be a liberal without being a bad person. Therefore, it follows that liberals shouldn’t be allowed to vote.

        1. Can’t tell if serious.

          Anyway, Romans 3:23 suggests that your proposal would disenfranchise everyone.

  14. I think it should be automatic that your voting rights are restored once you serve all your time including probation.

    1. Most states have this rule, or a more lenient rule.

      Check out this ACLU map.

      There seem to be about 40 states, give or take, where a person who has completed their felony sentence (including probation or parole) can vote. Some of these 40 states have even more liberal rules, and two states let you vote while still in prison.

      So that leaves about 10 states where some or most felons are disenfranchised even after their sentences are over.

      If this is a true National Crisis, then a federal constitutional amendment – call it the Debt to Society Amendment – can be passed which restores felons’ voting rights once their sentence is over.

      But as for letting inmates, probationers and parolees vote – that’s a bridge too far, IMHO.

      1. But as long as we’re setting federal rules by a constitutional amendment, let’s also have a clause that bars convicted felons from voting *until* their sentence is over.

        That should be a great compromise measure which should satisfy everyone, I presume. /sarc

        1. Probation may last for many years, and is often imposed on people who have been convicted of relatively minor drug offenses and have served little if any jail time. It is difficult for me to understand why such people should be disenfranchised, regardless of whether it’s constitutionally permissible. According to a 2016 article in the New York Times (“Why 10% of Florida Adults Can’t Vote: How Felony Convictions Affect Access to the Ballot”), well over a million probationers are barred from voting. Shouldn’t we be trying to integrate those people into society, rather than shutting them out?

          1. Then that will be an extra incentive for governors in Blue states to grant clemency for “relatively minor drug crimes.” If a constitutional amendment makes clear they can’t vote until their probation is over, those governors may act to get them off probation and back on the voting rolls as quickly as possible. Also, blue state legislatures will have an incentives to provide for lesser probation for those “relatively minor drug crimes” – or even remove the criminal penalties altogether from voluntarily supplying adults with mind-altering substances.

            1. It’s pretty lame for Dems to keep people on probation while letting them vote – if they’re rehabilitated, or if the crimes were “relatively minor,” then what are they doing on probation for such long periods in the first place? If the Dems were interested in rehabilitation, why would they keep people on probation so long for minor crimes?

              “So long as they have the right to keep voting for us, who cares if their sentence is excessive?”

  15. “Constitution never secures a right to vote”

    Eh. It’s a basic right in a republican form of government and that’s basically why it is deemed a fundamental right under current law. And, its fundamental nature was cited back in 1886, so it isn’t just something invented by Earl Warren or something. If the right to vote is denied, it should be done for a darn good reason.

    Like the First Amendment, this principle shouldn’t have needed so many amendments to reaffirm, but denying it repeatedly needed extra work. One aspect here was a special penalty provided if certain types of discrimination were in place. The second section of the 14A expressly only does that though yes there is an implication that the felony exception [which covers fairly trivial crimes if you are going to use it to deny the right to vote] goes further as was the case with the use of “male.”

    Richardson v. Ramirez was wrongly decided. The dissent had a better case. At the very least, repeatedly, felony disenfranchisement laws are problematic as seen in Hunter or when the “felony” is some non-malum in se crime, which libertarians can tell you are a dime a dozen.

    1. I’m not sure, then, what the purpose of Section 2 actually was.

      “Yes, you can disenfranchise criminals without being penalized in your representation, but of course it would be unconstitutional to disenfranchise criminals!”

      1. It’s unconstitutional for states to violate the freedom of speech.

        If they do, they aren’t penalized in their representation. A specific thing warrants that level of penalty.

        You can also check the dissent in Richardson v. Ramirez.

        1. That dissent pooh-poohed originalism and built on bad, non-originalist precedents.

          Harlan’s separate opinion in Oregon v. Mitchell reviews why Sec. 1 of the Fourteenth Amendment is not a voting-rights charter – that job is left to Section 2 and subsequent amendments on voting rights.

          But to use something like your analogy – suppose Section 2 reduced the representation of any state which imposed sales taxes on food, with the proviso that a state’s representation would be unaffected if it taxed fois gras. That would seem to suggest an underlying assumption that taxes of fois gras are constitutional.

          1. But in a constructive spirit, I’ll suggest that the concerns of the three dissenters could be addressed by a constitutional amendment providing that convicted felons cannot vote while serving their sentence, but will be re-enfranchised as soon as their sentence is over.

  16. You no playa da game, you no make-a da rules.

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