Gabriel J. Chin

excerpted from: Gabriel J. Chin, Reconstruction, Felon Disenfranchisement, and the Right to Vote: The Fifteenth Amendment Repeal Section 2 of the Fourteenth Amendment?, 92 Georgetown Law Journal 259-316, 259-260, 305-316 (January, 2004)(307 Endnotes)

The second sentence of Section 2 of the Fourteenth Amendment presents one of the Constitution's most enduring mysteries. Adopted in 1868, this clause was designed to encourage the former Confederate states to enfranchise African-Americans by excluding former slaves from the state's population for purposes of apportioning Congress if former slaves were denied the right to vote. As Justice Thurgood Marshall explained, "Section 2 ... put Southern States to a choice--enfranchise Negro voters or lose congressional representation." Southern states systematically disenfranchised African-Americans after Reconstruction, so the conditions triggering invocation of Section 2 existed for the better part of a century. Yet, under both Republican and Democratic-controlled Congresses, no discriminating state lost even a single seat in the House of Representatives when Congress reapportioned itself. From the era of Plessy to the era of Brown and beyond, no court ever declared that disenfranchised African-Americans would be excluded from a state's population. It was as if Section 2 had disappeared.

Section 2 was never invoked to serve its intended function of promoting the right to vote on a race-neutral basis, or at least of punishing discriminating states. Ironically, however, it serves a critically important role in suppressing African-American suffrage. After a century of vigorous nonenforcement, and just as the ink was drying on the Voting Rights Act of 1965, Section 2 was revived as a justification not to subject felon disenfranchisement laws to equal protection scrutiny. The rationale was that Section 2 was a textual authorization for felon disenfranchisement and thus precluded application of otherwise applicable laws that might have allowed African-Americans to vote.

This Part first describes the historical use of felon disenfranchisement as a tool of Jim Crow and its contemporary impact. It then describes the review of state disenfranchisement provisions under the Equal Protection Clause of the Fourteenth Amendment and suggests that there are serious reasons to doubt that felon disenfranchisement can survive strict scrutiny. Finally, this Part examines the cases that decline to review felon disenfranchisement under strict scrutiny or the Voting Rights Act and argues that their reliance on Section 2 is misplaced.

A. JIM CROW AND FELON DISENFRANCHISEMENT

Admittedly, it is hard to regard denying the franchise to convicted murderers, rapists, and kidnappers as a particularly urgent civil rights issue. Yet, felon disenfranchisement is a legitimate concern of the Reconstruction Amendments and other civil rights laws. African-Americans are disproportionately affected by felon disenfranchisement. As a result, their political preferences are less likely to meet with electoral success. Professors Uggen and Manza calculate that the Democratic Party would have controlled the Senate since 1986 and that the Democratic candidate would have won the 2000 presidential election but for felon disenfranchisement.

Of course, African-Americans can avoid being disenfranchised simply by refraining from committing crimes. Yet, this does not entirely answer the question of fairness. "Many felon voting bans were passed in the late 1860s and 1870s, when implementation of the Fifteenth Amendment and its extension of voting rights to African-Americans were ardently contested." There is strong evidence that the crimes leading to disenfranchisement were manipulated to accomplish the disenfranchisement of African-Americans.

In an 1896 opinion written with startling candor, a unanimous Mississippi Supreme Court wrote that the all-white 1890 constitutional convention "swept the circle of expedients to obstruct the exercise of the franchise by the negro race." African-Americans, the court explained, were "a patient, docile people, but careless, landless, and migratory within narrow limits, without forethought, and its criminal members given rather to furtive offenses than to the robust crimes of the whites." Accordingly, "the convention discriminated against ... the offenses to which its weaker members were prone.... Burglary, theft, arson, and obtaining money under false pretenses were declared to be disqualifications, while robbery and murder and other crimes in which violence was the principal ingredient were not." To this day, the disenfranchisement provision produced by the convention remains in effect.

Mississippi was hardly alone. In Hunter v. Underwood, Justice Rehnquist, writing for a unanimous Court, invalidated Alabama's felon disenfranchisement provision because it was aimed at African-Americans: "[T]he Alabama Constitutional Convention of 1901 was part of a movement that swept the post- Reconstruction South to disenfranchise blacks." As part of this movement, "Virginia's law adding petty larceny to the list of disqualifications was imitated because of its effect on the Negro vote." An analysis of the factors inducing states to impose or eliminate felon disenfranchisement provisions concluded that "[s]tates with greater nonwhite prison populations have been more likely to ban convicted felons from voting than states with proportionally fewer non-whites in the criminal justice system." As of 2003, Alabama, Florida, Iowa, Kentucky, Mississippi, Nebraska, and Virginia were the only states disenfranchising all felons for life.

Historically, Jim Crow states selectively enforced facially neutral felon disenfranchisement laws to discriminate against African-Americans, just as they discriminated in enforcing other voting requirements. Accordingly, in some situations, "ineligible" whites were allowed to vote, while African-Americans were not. Some news reports stated that in the 2000 general election in Florida, a Republican-inspired voter purge "included people who committed only misdemeanors, not felonies; people who had never committed any sort of crime; and people whose names did not even match names on county voting rolls." The errors in this purge disproportionately affected racial minorities.

Two circumstances create the likelihood that the problem will continue. First, most of those who lose the right to vote because of criminal conviction would vote Democratic. Second, race is a stronger predictor of party affiliation for African-Americans than for whites. Thus, suppressing the African-American vote is a winning strategy for Republicans in a way that suppressing the white vote will never be for any major party. In the full contact sport of American politics, both parties will seek any advantage they can, so it is no special criticism to say that both parties would be pleased if many members of the opposing party chose to, or were compelled to, stay home on Election Day.

It goes without saying that many Republicans and Democrats rise above partisan political interest and support policies they believe are right regardless of the consequences for their party. Yet, Republicans have a terrible conflict of interest with respect to African-American voter turnout and its connection to felon disenfranchisement. Even Republicans who believe on the merits that relatively minor crimes do not warrant lifetime disenfranchisement, or that people should be allowed to reenter the community once their punishment has been fully discharged, may nevertheless pause before supporting legal changes that would slash their political power.

Unfortunately, felon disenfranchisement creates the possibility for electoral entrepreneurship. A significant portion of the increase in felon disenfranchisement has come from drug convictions. The most convincing evidence of racially disproportionate prosecution is in the area of drug crimes; the overwhelming majority of drug offenders are white, but African-Americans constitute a majority of those imprisoned for drug offenses. In the abstract, many or most Republicans may support a public health approach to the drug problem rather than the expensive, and apparently unsuccessful, criminalization approach; many also deplore old-fashioned racism or whatever other factors result in the disproportionate prosecution of African-Americans. Yet Republicans have these phenomena to thank for some of their political success. Alternatives such as successful preventative measures, noncriminal treatment of African-Americans or the nondiscriminatory prosecution of drug crimes, would put Democrats in office.

Felon disenfranchisement, then, was aimed in substantial part at African-Americans and continues to affect them disproportionately. Yet, precisely because of that disproportionality, the political process contains powerful incentives to maintain felon disenfranchisement, as well as those aspects of the criminal justice system resulting in disproportionate prosecution of African-Americans. Prisoners count for purposes of apportioning Congress, and sometimes state and local legislative bodies as well. Accordingly, every African-American incarcerated not only suppresses a vote, but increases the voting power of everyone else in the jurisdiction. It would hardly be surprising for some pragmatic politicians to conclude that, as important as the principles of racial equality and participatory democracy may be, vigorous measures to enforce them will have to wait until another day if the consequence would be a change in control of the White House and Senate. But, such pragmatism aside, there is no a priori reason that civil rights laws aimed at ending racial discrimination should leave felon disenfranchisement to the tender mercies of the political process.

B. THE RIGHT TO VOTE UNDER SECTION 1 OF THE FOURTEENTH AMENDMENT

The modern Supreme Court pays lip service to the idea that "the States have the power to impose voter qualifications." In practice, however, voter qualifications have been almost wholly federalized. The Supreme Court has held that voting is a fundamental right, and therefore, subjects qualifications to strict scrutiny under the Equal Protection Clause of Section 1 of the Fourteenth Amendment.

Applying strict scrutiny, the Court has invalidated broadly applied, traditionally accepted restrictions, including those in effect in 1868. In those cases, the Court has revealed little interest in the question of whether the restrictions were understood as permissible when the Fourteenth Amendment was adopted. The Court also does not look at the class of individuals disqualified and ask whether it is permissible to regulate them differently from other classes of persons. Instead, it notes the fundamental nature of the right to vote and examines whether other, similarly situated classes are allowed to vote. If so, it invalidates the restriction. "[I]f a challenged state statute grants the right to vote to some bona fide residents of requisite age and citizenship and denies the franchise to others, the Court must determine whether the exclusions are necessary to promote a compelling state interest."

The Court has rejected the idea that voters must have certain kinds of connections to the state. In Carrington v. Rash, the Supreme Court invalidated a prohibition on the registration of soldiers from other states who were stationed in Texas, even though this kind of restriction existed in other states. In Dunn v. Blumstein, the Court invalidated a one-year residency requirement for voting in state elections, even though one year was "the norm."

The modern Court has also consistently rejected wealth requirements, even though "[p]roperty qualifications and poll taxes have been a traditional part of our political structure." In Harper v. Virginia State Board of Elections, the Court invalidated a poll tax under a strict scrutiny analysis; the Court disclaimed any reliance on racial discrimination as a basis for its decision. Harper is particularly notable because two earlier decisions upheld "nondiscriminatory" poll taxes. In addition, just two years before Harper, the Twenty-Fourth Amendment eliminated the poll tax in elections for federal offices, implying that Congress and the states thought that states could impose them. In 1969, Kramer v. Union Free School District No. 15 invalidated a requirement that voters in school board elections either have children or own property in the district.

Strict scrutiny of statutes completely disenfranchising classes of citizens is extremely powerful. The homeless have been allowed to register to vote in the face of arguments that they are legally prohibited from living in public parks or other areas they claim as their residences. Although traditionally disqualified, "paupers" and recipients of social services can vote. Pretrial detainees in jails have the right to absentee ballots. At some profound level of impairment, mental illness or retardation may warrant disenfranchisement, but many courts have held that it violates the Constitution to disenfranchise individuals simply for being retarded or mentally ill or in a residential treatment facility, even by involuntary commitment.

Only restrictions at the margin, usually temporary and/or partial, have survived strict scrutiny. As Professors Rotunda and Nowak explain, "[l]aws that totally prohibit a class of persons from voting in a general election or laws that are designed to restrict the voting power of a particular class of persons in a general election are unlikely to survive such a standard."

C. SECTION 2 AND THE RIGHT TO VOTE UNDER SECTION 1

Chief Justice Burger argued that to test voting restrictions "by the 'compelling state interest' standard is to condemn them all. So far as I am aware, no state law has ever satisfied this seemingly insurmountable standard, and I doubt one ever will, for it demands nothing less than perfection." Accordingly, before the Supreme Court held that felon disenfranchisement was lawful per se in 1974, the equal protection challenge to felon disenfranchisement seemed quite likely to be successful; indeed, several courts invalidated felon disenfranchisement statutes under Section 1.

A disenfranchisement statute for convicted felons is difficult to tailor narrowly. If it disenfranchises too few convicts, letting those with similar convictions vote, it is invalid as underinclusive. Thus, a three-judge U.S. District Court held in 1970 that New Jersey's felon disenfranchisement provision was invalid under equal protection because there was no principled basis for distinction between disenfranchising crimes and nondisenfranchising crimes. On the other hand, if a statute disenfranchises all felons, it may be invalid as overbroad. Accordingly, the California Supreme Court explained in 1966 that "[t]he unreasonableness of a classification disfranchising all former felons, regardless of their crime, is readily demonstrable: ... since conspiracy to commit a misdemeanor is itself a felony, disfranchisement would automatically follow from conviction of conspiracy to operate a motor vehicle without a muffler ...."

It is also difficult to identify the compelling state interest in disenfranchising felons. The typical justification for felon disenfranchisement is maintaining the "purity of the ballot box," an idea which received influential support in an Alabama case conceptualizing the right to vote as a "privilege, which is grantable or revocable by the sovereign power of the state at pleasure." Unfortunately, as the Supreme Court held in Hunter v. Underwood, Alabama's felon disenfranchisement provision was designed to maintain white supremacy; the ballot box purity was of the racial variety.

Ballot box impurity cannot be based simply on the undesirable viewpoint of the voter; all of those who support reduction in the number of people incarcerated or some other controversial position cannot be disenfranchised, even if the majority takes the opposite view. Ballot box impurity must be tied to the idea that felons will cast their votes corruptly. On this view, it is hard to see how lifetime felon disenfranchisement is narrowly tailored. As Justice Marshall argued, surely there are less restrictive means of achieving that goal, such as enforcement of existing election laws.

Another overarching, critical fact opposing the idea that disenfranchisement of felons represents a compelling interest is that a supermajority of the states allow persons who have completed their sentences to vote. Those states have not been captured by evildoers, repealed their penal codes, or suffered waves of election fraud. The laboratory of democracy has operated and given a result; the idea that felon disenfranchisement is necessary to achieve a compelling state interest has been disproved by experience.

Faced with these objections, the most comfortable way to save felon disenfranchisement was to find some reason in the first place to exclude it from equal protection review under Section 1 of the Fourteenth Amendment. Courts accordingly found that Section 2 constituted textual authorization for felon disenfranchisement, thus eliminating the need or permissibility of engaging in the question of whether felon disenfranchisement would satisfy strict scrutiny. One of the earliest decisions in this line was Judge Friendly's opinion in Green v. Board of Elections. In addition to dicta from Supreme Court opinions and colorful hypotheticals (the court rejected the idea that "the equal protection clause requires New York to allow convicted mafiosi to vote for district attorneys or judges"), the court relied on Section 2. "The framers of the amendment, says the Attorney General, could hardly have intended the general language of § 1 to outlaw a discrimination which § 2 expressly allowed. [This] argument is convincing." Several three-judge district courts followed Green in opinions summarily affirmed by the Supreme Court.

Finally, the issue received plenary review by the Supreme Court in 1974 in Richardson v. Ramirez. According to the Court, Section 2's treatment of felon disenfranchisement was determinative. The majority recognized the vigorous protection generally granted by decisions recognizing voting as a fundamental right and subjecting restrictions on the franchise to strict scrutiny. The Court distinguished those decisions because "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 other restrictions on the franchise which were invalidated in the cases on which respondents rely." The Court held 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." Although the argument that Section 2 had been repealed was not raised, the Court nevertheless noted that "[Section 2] is as much a part of the Amendment as any of the other sections." Courts and commentators have understood the outcome in Richardson as turning on the apparent textual authorization of felon disenfranchisement in Section 2. Richardson rested on an assumption, rather than a determination, that Section 2 was in force. Because the possible repeal of Section 2 was not briefed, argued, or decided, Richardson does not constitute authority for the proposition that Section 2 still exists.

If the Court erred in treating Section 2 as an affirmative constitutional authorization for felon disenfranchisement, it could at least use it as evidence that the framers of the Fourteenth Amendment did not consider felon disenfranchisement invalid across the board. There are two problems with such reliance: one doctrinal and the other historical.

The doctrinal problem is that history has been treated as irrelevant to the modern Court's evaluation of voting restrictions. Durational residence requirements, for example, were not only traditional and widespread, but specifically authorized in the readmission acts which were drafted by a Congress close in time and composition to the one that drafted the Fourteenth Amendment. Yet, such requirements were invalidated under equal protection.

More fundamentally, looking at Section 2 as evidence of the congressional view in 1868 offers an incomplete perspective because subsequent, but nearly contemporaneous, enactments were much stricter. Section 2 allowed disenfranchisement for any crime, presumably including speeding or other minor misdemeanors. The Military Reconstruction Act and readmission acts also allowed disenfranchisement, but only for felonies at common law: "murder, manslaughter, rape, robbery, mayhem, burglary, arson, larceny and prison break." Because "[m]any crimes classified as misdemeanors, or nonexistent, at common law are now felonies," allowing disenfranchisement only for common law felonies would reduce the practice substantially. The Fifteenth Amendment, Congress's last word on African-American suffrage, however, gave no special authorization for disenfranchisement even of those who had committed the most serious crimes. Because Congress clearly recognized that criminal disenfranchisement could be used to undermine the political status of the freed slaves, it would seem reasonable for a court interpreting Section 1, a law designed to prevent racial discrimination, to give full consideration to these views as to the permissible scope of disenfranchisement for criminal conviction.

D. SECTION 2 AND THE VOTING RIGHTS ACT

The Voting Rights Act prohibits voting qualifications that result in a denial or abridgment of the right to vote on account of race or color, regardless of discriminatory intent. Thanks to Section 2, however, felon disenfranchisement has survived. In Baker v. Pataki, an equally divided Second Circuit, sitting en banc, affirmed a ruling that "results" liability under the Voting Rights Act could not be predicated on a provision disenfranchising some or all felons because "the legitimacy of felon disenfranchisement is affirmed in the text of the Fourteenth Amendment itself." The narrow reading of the Voting Rights Act was necessary, for "any attempt by Congress to subject felon disenfranchisement to the 'results' methodology of § 1973 would pose a serious constitutional question concerning the scope of Congress' power to enforce the Fourteenth and Fifteenth Amendments." The Sixth Circuit reached the same conclusion. Because Section 2 has been repealed, these courts interpret the Voting Rights Act under a nonexistent constraint.

CONCLUSION

Although courts have never considered the contention that Section 2 has been repealed, there is precedent for a repeal unnoticed by observers. In the Panama Refining episode, a case reached the Supreme Court before anyone recognized that the law in question had been repealed before suit was filed. As in Panama Refining, courts have shaped the law based on the influence of "a provision which did not exist," but at least in Panama Refining the Court caught the mistake quite early. Although Section 2 was never vigorously enforced, it is time for the Court to declare that it is dead and apply the Constitution in effect now, rather than the version that prevailed before the Fifteenth Amendment granted African-Americans the right to vote.

. Professor of Law & Co-Director, Law, Criminal Justice and Security Program, University of Arizona James E. Rogers College of Law.