End Disenfranchisement of Felons by Erwin Chemerinsky
The time is long overdue to eliminate laws that keep those who have been convicted of a felony from voting. Approximately 5.8 million Americans cannot vote because of a felony conviction. In a democracy, all should be able to vote; no one should be subjected to “taxation without representation.” The right to vote is fundamental and there is no excuse for denying it to people because of a criminal conviction.
Felon disenfranchisement laws have a dramatic racially discriminatory effect. One of every thirteen African Americans has lost the right to vote because of laws keeping those with a felony conviction from voting, compared with only one of every fifty-six non-black voters. In some states—Florida (23%), Kentucky (22%), and Virginia (20%)—more than one in five African Americans is disenfranchised.
Every state has its own law as to the ability of those convicted of a crime to vote. In forty-eight states and the District of Columbia those convicted of a felony are denied the right to vote while incarcerated for a felony offense. Only two states—Maine and Vermont—permit persons in prison to vote. Thirty-five states, including California, prohibit those on parole from voting. Four states permanently deny the right to vote to those who have been convicted of a felony, while eight others permit application for reinstatement of the right to vote after a waiting period.
Disenfranchising those who have committed a crime is nothing new. It is based on the idea of “civil death,” that was part of English law. Those convicted of a crime were deemed to have lost their rights to participate in society and were denied the ability to get occupational licenses, to vote, and to participate in many other aspects of the community. Over time, this concept has been rejected as misguided, but it still survives as to voting.
Laws keeping felons from voting, especially in Southern states, were a result of the desire to keep African Americans from being able to vote. In 1894, a white South Carolina newspaper argued that voting laws needed to be amended, lest whites be swept away at the polls by the black vote. Alabama, for example, amended its constitution to expand disenfranchisement to all crimes involving “moral turpitude”—a vague term that was applied to misdemeanors and even acts not punishable by law. The president of the constitutional convention argued that keeping African Americans from voting was justified, because they were inferior to whites and because the state needed to avert the “menace of Negro domination.”
There is no rationale for denying the right to vote to those convicted of a felony. The Supreme Court long has held that those convicted of a crime can be denied only those rights that are necessary to effectuate incarceration. Denying those in prison from voting by absentee ballot, let alone keeping those released from custody from voting, serves no government interest. Some have suggested that keeping people convicted of a felony from voting helps to deter crime. But it is hard to imagine anyone inclined to commit a crime deciding not to do so out of fear of losing the right to vote.
A number of other countries have repealed their felon disenfranchisement laws or had them declared unconstitutional. England, for example, no longer follows this practice. The Canadian Supreme Court declared unconstitutional that country’s disenfranchisement law and declared that the “universal franchise has become . . . an essential part of democracy” and said “if we accept that governmental power in a democracy flows from the citizens, it is difficult to see how that power can legitimately be used to disenfranchise the very citizens from whom the government’s power flows.” See Sauvé v. Canada, Case no. 27667, 2002 SCC 68 (2002).
Unfortunately, in Richardson v. Ramirez, 418 U.S. 24 (1974), the Supreme Court upheld the constitutionality of keeping those convicted of a felony from voting. The Court focused on Section 2 of the Fourteenth Amendment, which creates requirements for states to be represented in Congress. It says that, to have representation in Congress, a state must extend the right to vote “to any of the male inhabitants of such state, being twenty-one years of age and citizens of the United States” “except for participation in rebellion or other crime.” Id. at 42. The Court held that keeping felons from voting did not deny equal protection in violation of Section 1 of the Fourteenth Amendment. The Court said Section 1 “could not have been meant to bar outright a form of disenfranchisement which was expressly exempted from the less drastic sanction of reduced representation” imposed by Section 2.
The flaw in this reasoning is that it takes a provision about what states must do to gain representation in Congress as having resolved the question of whether disenfranchising felons is constitutional. Justice Thurgood Marshall wrote a dissent joined by Justices William Douglas and William Brennan. Justice Marshall argued that the Court’s holding was “based on [an] unsound historical analysis.” In the view of the dissent, the historical purpose of the Penalty Clause was to maintain Republican dominance in Congress and this “should not be construed to be a limitation on the other sections of the Fourteenth Amendment.” Justice Marshall said that Section 2 of the Fourteenth Amendment “does not necessarily imply congressional approval of this disenfranchisement. . . . [A]nd such discriminations thus are not forever immunized from evolving standards of equal protection scrutiny.”
There are many ways to end this discrimination in voting. Ideally, the Supreme Court will overrule Richardson v. Ramirez and hold that laws denying the right to vote on account of a felony conviction unconstitutionally infringe the right to vote. Absent such a decision, Congress could accomplish this by amending the Voting Rights Act. State governments can change their own laws. Also, courts can find that the racially discriminatory impact of felon disenfranchisement laws violates Section 2 of the Voting Rights Act. In Virginia, the Governor took the courageous act of restoring voting rights to 206,000 convicted individuals, only to be rebuffed by the Virginia Supreme Court in a 3-2 decision, which held that the Governor must restore voting rights on an individual, not a group basis.
What is crucial is that there be an end to this unjustified discrimination with regard to a fundamental right.
Erwin Chemerinsky is Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law.
Felon Voting and the Rule of Law by John C. Eastman
Back in April, Virginia Governor Terry McAuliffe created quite a stir when he unilaterally restored voting rights to over 200,000 convicted felons, including those convicted of such violent crimes as murder and rape. Article II, Section 1 of the Virginia Constitution prohibits voting by felons unless their civil rights have been restored by the Governor, but never before in Virginia’s history had any governor exercised that power other than on a case-by-case basis after a specific request by the convicted felon. Moreover, at least sixty-nine bills to eliminate the state constitution’s ban on felon voting have been introduced in the state legislature over the past decade, but all have failed.
Governor McAuliffe’s order was based on a rather expansive interpretation of his state constitutional power to grant clemency, an interpretation so broad that even his fellow Democrat predecessor in the Virginia Governor’s mansion and now U.S. Senator and Democrat nominee for Vice President, Timothy Kaine, had rejected it in 2010 as barred by the Virginia Constitution and existing Virginia law. The very “notion that the Constitution of the Commonwealth could be rewritten via executive order is troubling,” former Governor Kaine concluded.
The Supreme Court of Virginia agreed that Governor McAuliffe’s order was unconstitutional, holding in July that the Governor’s categorical order had effectively inverted the state constitutional prohibition on felon voting into the opposite rule: “No person who has been convicted of a felony shall be disqualified to vote unless the convicted felon is incarcerated or serving a sentence of supervised release.” The court ordered state elections officials to cancel the voter registrations of all 13,000 ex-felons who had registered to vote under the authority of Governor McAuliffe’s unconstitutional order.
Governor McAuliffe’s response was even more troubling than his initial unconstitutional action. Thumbing his nose at the order of his state’s Supreme Court, he proceeded to restore the voting rights of all 13,000 convicted felons who had registered to vote pursuant to his April mass clemency order just one month after the court ordered them to be removed from the voting rolls. And he has vowed to continue to restore the voting rights of all 206,000 convicted felons just as quickly as he can sign individual paperwork for each one—hardly the kind of particularized assessment that the Virginia Constitution and the Virginia Supreme Court’s holding required.
A similar story of lawlessness has played out in California. Since its first constitution in 1849, California’s citizens have disenfranchised those “convicted of any infamous crime.” Article II, Section 4 of the California Constitution, adopted by voter initiative in 1974, loosened the permanent ban on voting by felons but still prohibits voting by those who are “imprisoned or on parole for the conviction of a felony.” In 2011, in response to court orders mandating that the state alleviate alleged overcrowding in its state prison system, the California legislature passed a “realignment” statute, shifting a number of felons from the statute prison system to the county jail system but otherwise leaving in place the “felony” status of their crimes. The bill also realigned responsibility for the supervision of paroled felons from state corrections officials to local officials for those felons who were shifted to the county jail system, calling the county system “post release community supervision.” Then-Secretary of State Debra Bowen issued a guidance memorandum to county elections officials explaining the common-sense understanding that felons on “post release community supervision” were still barred from voting by Article II, Section 4 of the State Constitution because they were “on parole for the conviction of a felony,” despite the different nomenclature used by the legislature to address the realignment.
After an effort to specify in state law that “post release community supervision” was not “parole” failed in the state legislature, the ACLU brought suit against Secretary Bowen to accomplish the same end through litigation. And in May 2014, Judge Evelio Grillo of the Alameda County Superior Court obliged. Despite clear dictionary definitions to the contrary defining “parole” as it is generally understood (i.e., the release of a prisoner before his or her term has expired on condition of continued good behavior), Judge Grillo held that felons given early release from county jails into the “post release community supervision” program were not actually felons on parole. Ergo, they must be allowed to register to vote.
Secretary Bowen appealed, but her successor in office, Alex Padilla, settled the case and withdrew the appeal, allowing roughly 45,000 convicted felons who are still on supervised release to vote in the upcoming election, despite the rather clear prohibition contained in the state’s constitution. Moreover, his collusive settlement of the case (Padilla is on record in support of felon voting more broadly), which reaches throughout the state and not just the county in which the suit was brought, violates another provision of the state constitution, namely, Section 3.5 of Article III, which prohibits government officials from refusing to enforce a state statute (such as the one implementing the prohibition on felon voting) “unless an appellate court has made a determination that such statute is unconstitutional.”
As if that is not bad enough, the state legislature in August passed a bill that, if signed by the Governor, would excise from the state constitution’s prohibition the “imprisoned” component of the felon voting ban. AB2466, introduced back in February by Assemblywoman Shirley Weber (and sponsored by the ACLU), would manipulate the definition of “imprisoned . . . for the conviction of a felony” to cover only those sent to state prison, not those convicted of felonies who are transferred to or initially sent to county jail under the statutory realignment law. The bill barely passed the Assembly by a 41-37 vote in May, but passed the Senate by a 23-13 vote in August. Apparently, a majority of the Assembly, and a large majority of the Senate, thinks the word “imprisoned” refers not to someone who is incarcerated, but the name on the building in which they are incarcerated—state prison instead of county jail. Words no longer seem to have any meaning. Or as Humpty Dumpty would say, “When I use a word, it means just what I choose it to mean—neither more nor less.” Lewis Carroll, Through the Looking Glass (1871). Can anyone seriously contend that when the people of California voted to ban voting by those “imprisoned or on parole for the conviction of a felony,” they really meant to allow voting by convicted felons while they were still in jail, or while they were out on parole but in a new legislatively created category of parole called “post release community supervision?”
Why have California’s elected Democrats taken such extraordinary steps to negate a clear constitutional ban on felon voting? Some have claimed that the ban on felon voting was put in place because it has a disproportionate impact on African-American voters. That, too, is nonsense, since the original ban dates all the way back to 1849. It is simply not credible to claim that the 1974 amendment, which loosened the long-standing ban by eliminating the lifetime prohibition, was designed to restrict voting rights.
Another explanation is much more straightforward and, under the Ockham’s razor theory, more likely to be true. A recent authoritative study by professors from Stanford and the University of Pennsylvania, published in the The Annals of the American Academy of Political and Social Science, showed that felons overwhelming register and vote Democrat. As reported in the Washington Examiner back in 2014, the study demonstrated that in New York, for example, 61.5% of convicts are Democrats, while just 9% are Republicans, and that 73% of convicts who vote in presidential elections vote Democrat. Perhaps that is because Democrats are at least perceived to be softer on crime than Republicans.
But whatever policy arguments there are for or against expanded voting by felons, the voters of California have already made their policy choice. It is based on the sensible recognition that those who have disregarded the basic terms of our governing social compact by committing serious crimes have forfeited their right to have a say in the conduct of government and the choice of our representatives. California no longer even requires that former felons demonstrate that they have been fully rehabilitated before having their voting rights restored; all that is now required is that they complete their prison sentence and supervised release without committing additional felonies. What is more, California voters made that policy choice not by mere statutory law, but in the state’s constitution, which is supposed to be binding not just on the state’s citizens but also (and particularly) on its elected officials. Allowing felons to vote while still incarcerated (“imprisoned”), or still on supervised release (“parole”), is therefore lawlessness of the first order, since it is contrary not just to statutory law but to the higher law of our constitution. Prior to the 1974 amendment, the state constitution had banned voting by elected officials who were convicted of abusing their public trust by embezzlement or misappropriation of public money. Perhaps we should consider restoring that provision, modified to cover elected officials who commit a much more serious breach of the public trust by ignoring the clear mandates of the constitution, diluting the votes of the law-abiding citizenry in order to gain partisan political advantage by swelling the voter rolls with convicted felons still serving their sentences.
Dr. John C. Eastman is the Henry Salvatori Professor of Law and Community Service, and former Dean, at Chapman University Fowler School of Law. He is also a Senior Fellow at the Claremont Institute.