The Uncertain Future of Felon Disenfranchisement

40 Pages Posted: 31 Mar 2020 Last revised: 29 Apr 2020

See all articles by Bruce E. Cain

Bruce E. Cain

University of California, Berkeley - Charles and Louise Travers Department of Political Science

Brett Parker

Stanford University - Department of Political Science

Date Written: March 2, 2020

Abstract

Felons represent a large majority of disenfranchised adult Americans, with a significant proportion remaining unable to vote even after completing the entirety of their sentences. As voter eligibility requirements become an increasingly contested partisan battlefield, the fate of these disenfranchised individuals has become increasingly unclear. With this backdrop in mind, we consider recent developments in felon disenfranchisement, the prospects for future legislative action, and the legal arguments that litigants might employ to challenge the practice. In so doing, we exploit newly collected polling data to determine (1) whether Americans are ready to end felon disenfranchisement, and (2) under what circumstances they believe felon disenfranchisement constitutes excessive punishment. Examining these results, we conclude that the prospects for an immediate end to felon disenfranchisement are limited and that a categorical challenge to disenfranchisement under the Eighth Amendment would be doomed to fail. However, our results do suggest that a limited set of “gross disproportionality” challenges could plausibly succeed in states with lifetime disenfranchisement laws. We finish by discussing the disparate impact of disenfranchisement laws on African-Americans and consider the prospects for challenging these laws under the Voting Rights Act.

Keywords: Felon Disenfranchisement, Eighth Amendment, Voting Rights, Public Opinion

Suggested Citation

Cain, Bruce E. and Parker, Brett, The Uncertain Future of Felon Disenfranchisement (March 2, 2020). Missouri Law Review, Vol. 83, Issue 4, p. 935, SPRING 2020, Available at SSRN: https://ssrn.com/abstract=3549649

Bruce E. Cain

University of California, Berkeley - Charles and Louise Travers Department of Political Science ( email )

210 Barrows Hall
Berkeley, CA 94720
United States

Brett Parker (Contact Author)

Stanford University - Department of Political Science ( email )

Stanford, CA 94305
United States

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