Does the US Congress Have Authority to Legislate Felon Enfranchisement in Federal Elections?
Gillian E. Metzger, JD, Professor of Law at Columbia University Law School, wrote in an Oct. 20, 1999 memorandum to the U.S. House of Representatives Subcommittee on the Constitution:
"There are three potential constitutional bases for Congress's authority to enfranchise non-incarcerated offenders for federal elections:
Congress's supervisory power over federal elections, rooted in Article 1, Sec. 4;
Congress's enforcement power under Section Five of the Fourteenth Amendment, and
Congress's enforcement power under Section Two of the Fifteenth Amendment.
Under its enforcement powers, Congress can conclude that enfranchisement of non-incarcerated offenders is appropriate to ensure that racial discrimination does not taint federal elections.
Congress could also enfranchise non-incarcerated offenders under its Fourteenth Amendment enforcement power based on its determination that laws disenfranchising non-incarcerated felons are arbitrary and irrational."
John Conyers, Jr., LLB, U.S. Representative (D-MI), wrote in his Mar. 15, 2005 bill H.R. 1300, the Civic Participation and Rehabilitation Act of 2005, which expired at the end of the term without a vote:
"The Congress makes the following findings:
(1) The right to vote is the most basic constitutive act of citizenship and regaining the right to vote reintegrates offenders into free society. The right to vote may not be abridged or denied by the United States or by any State on account of race, color, gender or previous condition of servitude. Basic constitutional principles of fairness and equal protection require an equal opportunity for Americans to vote in Federal elections. Congress has ultimate supervisory power over Federal elections, an authority which has repeatedly been upheld by the Supreme Court.
(2) Congress finds three areas where discrepancies in State laws regarding felony convictions lead to unfairness in Federal elections: (A) there is no uniform standard for voting in Federal elections which leads to an unfair disparity and unequal participation in Federal elections based solely on where a person lives; (B) laws governing the restoration of voting rights after a felony conviction are unequal throughout the country and persons in some States can easily regain their voting rights while in other States persons effectively lose their right to vote permanently; and (C) State disenfranchisement laws disproportionately impact ethnic minorities.
(3) Although State law determines the qualifications for voting, Congress must ensure that those laws are in accordance with the Constitution. Current laws vary throughout the country resulting in discrepancies regarding which citizens may vote in Federal elections. elections."
Richard L. Hasen, JD, PhD, The William H. Hannon Distinguished Professor of Law Chair at Loyola Law School, stated in his Nov. 2005 article "The Uncertain Congressional Power to Ban State Felon Disenfranchisement Laws," accessed via the Social Science Research Network:
"In the United States most attacks on felon disenfranchisement through constitutional litigation have failed. [...]
I conclude that in light of the Supreme Court's new federalism jurisprudence it is uncertain whether the Supreme Court would uphold such a [felon enfranchisement] law as a permissible exercise of congressional power, leaving state legislatures as the prime locus for changes to felon disenfranchisement laws."
The Washington Times stated in a Mar. 8, 2005 editorial titled "Felons and Democratic Politicking":
"Most prominently, the 14th Amendment makes felon voting a state prerogative, not a federal one. [...]
The senators' bill [Count Every Vote Act of 2005], by contrast, tosses out the Constitution and declares in no uncertain terms that felon voting should be a federal issue. [...]
If voters choose to change state laws regarding felons and voting, it's their prerogative. Federalism allows for such state-level experimentation, and it's at the state level where the consequences of new felon-voting laws will best be judged. Congress should let the process play itself out, as the Constitution allows it to."
Roger Clegg, JD, President and General Counsel of the Center for Equal Opportunity, stated in his article "Felon Disenfranchisement Is Constitutional, And Justified," accessed on May 7, 2007 from the website of the National Constitution Center:
"The procedural issue is resolved for the most part by the Constitution itself, in Article I, section 2, which [...] gives authority for determining elector qualifications to the states. The exception is, of course, where the Constitution itself forbids the exclusion of voters on specific grounds, such as race (the 15th Amendment), sex (the 19th Amendment), failure to pay a poll tax or other tax (24th Amendment), or age for those 18 years old or older (26th Amendment).
The Supreme Court recently reaffirmed in United States v. Lopez (1995) what is obvious from the text of the Constitution: 'The Constitution creates a Federal Government of enumerated powers.' And no power exists for Congress to pass a law banning felon disenfranchisement by the states."