Is the Disenfranchisement of People with Felony Convictions Unconstitutional?
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Do laws disenfranchising people with felony convictions conflict with the 8th Amendment of the US Constitution?
Pamela S. Karlan, JD, the Kenneth and Harle Montgomery Professor of Public Interest Law at Stanford University, stated in her 2004 article “Convictions and Doubts: Retribution, Representation, and the Debate over Felon Disenfranchisement,” published in the Stanford Law Review:
“Given contemporary voting rights doctrine, if disenfranchisement is to be justified at all, it must be justified as an appropriate punishment. Thus it is impossible to avoid the question Trop v. Dulles set to one side: is disenfranchisement consistent with the Eighth Amendment’s prohibition on cruel and unusual punishment?The Eighth Amendment ‘succinctly prohibits ‘excessive’ sanctions,’ and demands that ‘punishment for crime should be graduated and proportioned to the offense.’ (Atkins v. Virginia, quoting Weems v. United States) … The claim that a particular punishment violated the Eighth Amendment because it is disproportionately severe ‘is judged not by the standards that prevailed in 1685… or when the Bill of Rights was adopted, but rather by those that currently prevail.’.. Thus, the states that continue to exclude all felons permanently are outliers, both within the United States and in the world.”
In Thiess v. State Administrative Board of Election Laws, the Maryland 4th circuit Federal Court, stated in its Dec. 26, 1974 ruling:
“Unlike the penalty of expatriation [discussed in the case Trop v. Dulles], the penalty of disenfranchisement is one specifically recognized by the Fourteenth Amendment, an amendment enacted subsequent to the Eighth. See Richardson v. Ramirez. In addition, Mr. Chief Justice Warren’s words in Trop [Trop v. Dulles] suggest a marked difference in severity between total political expatriation and the more limited deprivation of the right to vote…
As the Court noted in Richardson v. Ramirez, it may be that modern legislators should conclude that the concept of disenfranchisement is ‘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.’ Be that as it may, as a Court, we cannot conclude that such disenfranchisement as has been decreed by the State of Maryland is a punishment so grossly disproportionate to the crime as to be proscribed by the Eighth Amendment.”
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state 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.”
[Note: The bolded sentence is the “Equal Protection Clause.”]
“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.”
[Note: The bolded clause is the primary source of the debate on felon disenfranchisement.]
Do laws disenfranchising people with felony convictions conflict with Section I (the Equal Protection Clause) of the 14th Amendment?
In Hunter v. Underwood, the US Supreme Court stated in its Apr. 16, 1985 decision:
“Held: Section 182 [of the Alabama constitution of 1901] violates the Equal Protection Clause of the Fourteenth Amendment [of the U.S. Constitution] … That 182 may have been adopted to discriminate against poor whites as well as against blacks would not render nugatory [worthless, futile] the purpose to discriminate against blacks…
The drafters [of Section 182] retained the general felony provision – ‘any crime punishable by imprisonment in the penitentiary’ – but also added a new catchall provision covering ‘any…crime involving moral turpitude.’ …It is alleged, and the Court of Appeals found, that the crimes selected for inclusion in 182 were believed by the delegates to be more frequently committed by blacks.”
In Richardson v. Ramirez:the US Supreme Court stated in its June 24, 1974 decision:
“California, in disenfranchising convicted felons who have completed their sentences and paroles, does not violate the Equal Protection Clause.
(a) The understanding of the framers of the Fourteenth Amendment, as reflected in the express language of 2 of the Amendment, which exempts from the sanction of reduced congressional representation resulting from the denial of citizens’ right to vote, the denial of such right for ‘participation in rebellion, or other crime,’ 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 that this Court has held invalid under the Equal Protection Clause.”
Do laws disenfranchising people with felony convictions conflict with Section II of the 14th Amendment?
Jason G. Morgan-Foster, JD, Researcher at New York University School of Law, stated in his 2006 article “The Transnational Judicial Discourse and Felon Disenfranchisement: Re-examining the Textual Premise of Richardson v. Ramirez,” published in the Tulsa Journal Comparative & International Law:
“Interestingly, it appears that, like the international context, the Framers [of the U.S. Constitution] also viewed disenfranchisement along a continuum, intending the phrase ‘or other crime’ to apply only to crimes of rebellion or disloyalty to the state, such as treason…
[W]e should care about felon disenfranchisement because it inherently contradicts the rest of our constitutional jurisprudence on the right of every citizen to vote. This article has suggested that it is time to re-examine the original textual premise of the Ramirez decision that section 2 of the Fourteenth Amendment affirmatively sanctions felon disenfranchisement.”
Alex Kozinski, JD, US Ninth Circuit Court of Appeals Judge, stated in his Feb. 24, 2006 dissent of the order denying a 9th Circuit Court of Appeals rehearing en banc in Farrakhan v. State of Washington:
“Unlike any other voting qualification, felon disenfranchisement laws are explicitly endorsed by the text of the Fourteenth Amendment…
They are presumptively constitutional. Only a narrow subset of them – those enacted with an invidious, racially discriminatory purpose – is unconstitutional.”
“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
“The Congress shall have the power to enforce this article by appropriate legislation.”
Do laws disenfranchising people with felony convictions conflict with the 15th Amendment?
Gabriel J. Chin, JD, LLM, Professor of Law, Public Administration, and Policy at the University of Arizona, stated in his Jan. 2004 article “Reconstruction, Felon Disenfranchisement, and the Right to Vote: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth Amendment?,” published in the Georgetown Law Journal:
“Felon disenfranchisement has tremendous effects on the political landscape – leading researchers report that felon disenfranchisement ‘may have altered the outcome of as many as seven recent U.S. Senate elections and one presidential election.’ Because the Fifteenth Amendment repealed Section 2 [of Amendment XIV], courts must reconsider the treatment of felon disenfranchisement…
In states that denied the vote to African-Americans, white voters had extra impact because African-Americans counted for purposes of allocating seats in Congress but did not participate in electing those who served there. Section 2 thus encouraged states to let African-Americans vote by punishing states disenfranchising African-Americans, but it left the ultimate decision to the states. Instead of merely encouraging nondiscrimination, the Fifteenth Amendment imposed it, granting the right to vote to qualified African-Americans. The Fifteenth Amendment represented a newly restrictive view of both state power and the consequences of exceeding it.”
Richard L. Hasen, JD, PhD, Distinguished Professor of Law at Loyola Law School, stated in his Nov. 2005 article “The Uncertain Congressional Power to Ban State Felon Disenfranchisement Laws” for the Howard Law Journal:
“Under today’s standards, Congress will have to come up with significant evidence of intentional state racial discrimination to justify a felon disenfranchisement ban under its 14th or 15th amendment enforcement powers.
The evidence of intentional state discrimination must come either in relation to a cycle of poverty leading to a higher number of minority felons or intentional state discrimination in the criminal justice system that makes it more likely that minorities accused of felonies will be convicted than whites accused of felonies.”
“The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.”
“The Congress shall have power to enforce this article by appropriate legislation.”
Do laws disenfranchising people with felony convictions conflict with the 24th Amendment?
The American Civil Liberties Union stated in the Dec. 8, 2005 “Motion for Summary Judgment” they filed in the case of Madison v. Washington:
“By denying the vote to those who have not paid their LFOs [Legal Financial Obligations], the State of Washington distributes this fundamental right [to vote] on the constitutionally impermissible basis of wealth.
Washington’s re-enfranchisement scheme creates two classes of ex-felons in Washington: those ex-felons who are able to pay their LFOs and regain the right to vote, and those ex-felons who are unable to pay their LFOs and remain permanently disenfranchised.
By requiring payment of all LFOs as a condition for reenfranchisement, the State effectively imposes a poll tax upon Plaintiffs and all other ex-felons. This violates both the Federal and State Constitutions.”
Rob McKenna, JD, Attorney General for the state of Washington, wrote in the Dec. 21, 2005 “Cross-Motion For Summary Judgment and Response to Plaintiffs’ Motion for Summary Judgment” filed in the case of Madison v. Washington:
“As noted, a decision by a state not to extend the right to vote to convicted felons enjoys express constitutional sanction. The Legislature’s policy judgment that civil rights should be restored only upon completion of all terms of a felony judgment and sentence bears a rational relationship to this objective. That a different policy judgment might have been reached is no answer. The constitutional question is whether the inclusion of legal financial obligations is wholly irrelevant…
Requiring the payment of a poll tax as a qualification for voting is unconstitutional because it bears ‘no relation to voting qualifications.’ By contrast, both the federal and state constitutions recognize the State’s legitimate policy decision not to extend the right to vote to convicted felons whose civil rights have not been restored.
Felony convictions, unlike the applications of the poll tax, is linked to the individual choices and conscious behavior of the particular person. Felon disenfranchisement ‘does not deny any citizen, ab initio, the equal opportunity to participate in the political process and elect candidates of their choice.’
The cause of disenfranchisement is simply that the felon’s ‘conscious decision to commit a criminal act for which they assume the risks of detection and punishment.’”