How Congress Can Craft a Felon Enfranchisement Law that Will Survive Supreme Court Review
66 Pages Posted: 15 May 2020 Last revised: 28 May 2020
Date Written: December 1, 2019
The political moment is ripe for a law ending felon disenfranchisement. The topic received extended media attention when Bernie Sanders suggested in a Democratic presidential primary debate that even those in prison should be allowed to vote—though he did not suggest a plan for changing the law on the federal level. But other Representatives and Senators have begun proposing enfranchisement laws in recent Congressional cycles, including liberal Congressman Jerrold Nadler, and conservative Kentucky Senator Rand Paul. The approval of these two politicians suggests that a broad and bipartisan constituency currently favors the end of harsh felon disenfranchisement laws. Even without Congressional action, many states have gone the path of re-enfranchisement, most recently Florida, whose voters, in November, 2018, voted to re-enfranchise 1 million disenfranchised people. Still, some five million people remain disenfranchised by these state laws, two million of them in spite of finishing their sentences, with staggering impacts on racial minorities in places like Kentucky, Virginia, and Tennessee, each of which disenfranchise twenty percent of voting age Black Americans. The need for a national law remains pressing.
Seldom asked in the course of holding debates and drafting bills, however, is whether Congress has the constitutional power to end the practice of felon disenfranchisement. While Congress’s path may have been straightforward had it passed a felon enfranchisement law in 1965 or 1970, when the Supreme Court afforded near-total deference to Congress’s powers over the franchise, the path is winding and pitted after three decades of federalist testing and paring back of those powers. If Congress attempts to end felon disenfranchisement, litigation over the law might become the next battleground for the Supreme Court’s federalist doctrine, hotly litigated in recent years in such cases as Shelby County v. Holder.
No solution to the federalist challenge offers clear promise. There are three possible bases for a Congressional enactment: (1) the Elections Clause of Article I, permitting Congress to set the “time, place, and manner” of federal elections; (2) the power to enforce the Fourteenth Amendment’s Equal Protection Clause; (3) and the power to enforce a franchise free of race discrimination under the Fifteenth Amendment. But recent case law rules out the Article 1 solution, and whether the enforcement powers may be useful is uncertain given the holding of Richardson v. Ramirez that the constitution does not protect the voting rights of convicted felons.
Nevertheless, with some cleverness and close attention to the Court’s precedents, Congress may overcome these obstacles to its enforcement powers. This Article posits that the overbreadth, severity, and lack of legitimate government interest in permanent felon disenfranchisement makes permanent disenfranchisement, still practiced in several states, an appropriate target for Congress’s Equal Protection enforcement powers. Congress should be able to mandate universal re-enfranchisement at the end of a felon’s prison and parole term. As for the Fifteenth Amendment, it is doubtful that the Court would accept findings that all felon disenfranchisement is racist, and so Congress should focus instead on laws like drug possession or burglary with proven racial disparities. Once focused on these targets, Congress could either ban disenfranchisement for certain crimes outright, or create a cause of action, akin to section two of the Voting Rights Act, that would permit plaintiffs to prevail by showing proof of racial impacts (rather than the racist intent of state actors).
Keywords: felon disenfranchisement, voting rights, Shelby County v. Holder, Fourteenth Amendment, Fifteenth Amendment, Enforcement Powers, Reconstruction Amendments, Richardson v. Ramirez, Elections Clause, animus, equal protection
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