1 of 5 12/7/2012 11:15 AM Search: Go TEMPLETON LECTURE SERIES WELCOME EDUCATORS AND STUDENTS SCHOOL AND GROUP VISITS FOR EDUCATORS The Exchange TAH Grants Lincoln Teacher's Guide Supreme Court Confirmation FAQ Viewpoints Constitutional Minute Archives Discussion Starters Lesson Plans Meeting Standards Service Learning FOR STUDENTS FOR KIDS! EDUCATOR RESOURCE ROOM Home > Educational Resources > For Educators > Viewpoints > Felon Disenfranchisement Is Constitutional, And Justified Felon Disenfranchisement Is Constitutional, And Justified by Roger Clegg Should felons be allowed to vote? There is both a substantive and a procedural issue here. The procedural issue is, Who gets to decide this question? The substantive issue is, And what should that decision be? Congress Lacks Authority to Prohibit Felon Disenfranchisement The procedural issue is resolved for the most part by the Constitution itself, in Article I, section 2, which says that electors for the House of Representatives and, by extension, for all federal elections shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. Thus, it 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). Nonetheless, some members of Congress have recently proposed legislation that would make it illegal for states to bar felons from voting. This is a dramatic change, because most states do not allow at least some of these people to vote. 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. One purported justification would rely on Article I, Section 4,
2 of 5 12/7/2012 11:15 AM ELECTION2008 TRAVELING HISTORY AND CIVICS PROGRAM AMERICAN ADVENTURE SUMMER CAMP SUMMER EDUCATOR PROGRAMS BIRTHDAY PARTIES LESSON PLAN CONTEST SCOUT DAYS PENNCORD AND THE CAMPAIGN FOR THE CIVIC MISSION OF SCHOOLS JENNINGS PROJECT ANNENBERG CENTER FOR EDUCATION AND OUTREACH RELATED LINKS TEACHING WITH CURRENT EVENTS CIVICS TEST Purchase Tickets Directions & Hours Calendar of Events Become a Member which gives Congress authority to trump the states authority under Article I, Section 2, insofar as the former allows Congress to make or alter such [state] Regulations regarding [t]he Times, Places and Manner of holding Elections for Senators and Representatives. As a textual matter, this is unpersuasive, since Article I, Section 4, is talking about holding Elections not about who votes, which is the express focus of Section 2. Thus, in The Federalist No. 60, Alexander Hamilton said of Article I, Section 4, that the national government s authority would be expressly restricted to the regulation of the times, the places, and the manner of elections. The qualifications of the persons who may choose or may be chosen are defined and fixed in the Constitution; and are unalterable by the legislature. In The Federalist No. 52, James Madison had written of Article I, Section 2: To have left it [that is, [t]he definition of the right of suffrage ] open for the occasional regulation of Congress, would have been improper. Hamilton and Madison believed that generally the state constitutions would determine who voted; Congress, in any event, would not. It Is Constitutional for the States to Ban Felons from Voting If Article I, Section 4, does not give Congress the power to trump the states authority for determining voting qualifications, then we are left with the claim that Congress may pass such legislation under its authority to enforce the 14th and 15th Amendments. In particular, it is claimed that, because a disproportionate number of felons are African Americans, therefore Congress can pass a ban on felon disenfranchisement as part of its authority to enforce the 14th and 15th Amendments prohibitions of racial discrimination. The trouble here is that it is well established that laws which have a mere disproportionate effect or disparate impact on the basis of race but no discriminatory intent do not violate the 14th and 15th Amendments. When in 1985 the Supreme Court considered a claim that a state law denying the franchise to those convicted of crimes involving moral turpitude was unconstitutional race discrimination, it said: `[O]fficial action will not be held unconstitutional solely because it results in a racially disproportionate impact. Proof of racially discriminatory intent is required to show a violation of the Equal Protection Clause. It is true that the Supreme Court has upheld congressional bans on certain voting practices and procedures like literacy tests that are not themselves discriminatory on their face but have disproportionately excluded racial minorities from voting. But, as the Court later stressed, these cases involved
3 of 5 12/7/2012 11:15 AM Museum Store About Us Podcasts Facility Rentals Press Room Sign up for our newsletter: Go bans aimed at practices that historically have been rooted in intentional discrimination. The disenfranchisement of criminals, on the other hand, has no such roots. Indeed, Section 2 of the 14th Amendment itself contemplates this disenfranchisement, since it acknowledges that the right to vote may be abridged for participation in rebellion, or other crime. Surely this is some evidence that the reasons for disenfranchising criminals need not be racially discriminatory. The Supreme Court upheld a felon disenfranchisement statute from a nonracial Equal Protection Clause challenge in Richardson v. Ramirez (1974), relying on Section 2. The fact that an overwhelming number of states have passed such disenfranchisement laws also indicates that something other than racial discrimination is indeed the motive. Rather, as even the Sentencing Project and the Human Rights Watch vigorous opponents of felon disenfranchisement acknowledge, Disenfranchisement in the U.S. is a heritage from ancient Greek and Roman traditions carried into Europe. In Europe, the civil disabilities attached to conviction for a felony were severe, and English colonists brought these concepts with them to North America. Thus: Only two New England states Maine and Vermont allow all felons to vote. Twenty-eight states prohibit felons who are on probation from voting. Thirty-two states prohibit felons who are on parole from voting. The states that prohibit felons who have served their complete sentences from voting are hardly the old Confederacy: Only five of the thirteen states fall in that category. Conversely, of the old Confederacy, Texas, Arkansas, Louisiana, North Carolina, South Carolina, Tennessee, and Georgia all allow some felons to vote. It is true that, between 1890 and 1910, five Southern states (Alabama, Louisiana, Mississippi, South Carolina, and Virginia) tailored their criminal disenfranchisement laws to increase their effect on black citizens. But these states have all changed their laws to one degree or another. In discussing the scope of Congress s enforcement powers for the Reconstruction Era amendments, the Court has declared, There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. There is no congruence and proportionality between guaranteeing people the right to vote irrespective of race and a requirement that criminals be allowed to vote.
4 of 5 12/7/2012 11:15 AM Felon Disenfranchisement Makes Good Sense Of course, just because it is constitutional for states to ban felons from voting doesn t necessarily mean that they should. But let s consider briefly why they might legitimately choose to do so. Voting is a right, but it is also a privilege. Not everyone in the United States may vote. As a general matter, only those who have reached a certain age, are mentally competent, and are American citizens, are allowed to vote. This is because we do not want people voting who are not trustworthy and loyal to our republic. It is not unreasonable to suppose that those who have committed serious crimes may be presumed to lack this trustworthiness and loyalty. Criminals are, in the aggregate, less likely to be trustworthy, good citizens. This doesn't mean that someone who, for instance, wrote a bad check 50 years ago shouldn't have his or her right to vote restored. But those decisions should be made on a case-by-case basis. Those who want to give felons the right to vote argue that after prison, the criminal's debt to society has been paid. But many leading activists, such as the Sentencing Project, want the right restored even for those still in prison. Society should not ignore people's criminal records, even after a sentence has been served. We don't allow felons to carry firearms or serve on federal juries. Barring felons from voting is one way society sends the message that committing a serious crime has serious consequences. Others support felon re-enfranchisement because a disproportionate number of felons are black. But calculations of racial winners and losers should not influence lawmaking. If a voting qualification makes sense, then we should let the chips fall where they may, even if some groups (men, for example, or African-Americans) are statistically more likely to be affected. Besides, since law-abiding African-Americans are more frequently the victims of crime and live disproportionately in areas with high felon populations, they have the most to lose if their voting rights are unfairly diluted by allowing criminals to vote. People who are not willing to follow the law should not be allowed to make the law for everyone else. When you vote, you make law, either directly or indirectly. Someone who has committed a serious crime against society -- the definition of a felon -- should not be given this power over the rest of us. Roger Clegg is general counsel of the Center for Equal
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