The Uncertain Congressional Power to Ban State Felon Disenfranchisement Laws

Abstract

This article, prepared for a voting rights symposium to appear in the Howard Law Journal, considers congressional power to ban state felon disenfranchisement laws. Although courts in other countries have held that the practice of denying the right to vote to felons (or ex-felons) violates constitutional guarantees, the U.S. Supreme Court has held that the practice usually does not violate the U.S. Constitution. Current controversy in lower federal courts swirls over whether section 2 of the Voting Rights Act may bar certain state felon disenfranchisement laws. This article looks beyond that controversy to the constitutional question: If Congress passed a clear law barring the state practice of disenfranchising felons (or ex-felons), would the Supreme Court uphold such a law as a permissible exercise of Congressional power to enforce the 14th or 15th amendments? The most promising, but still quite uncertain, basis for congressional power is that a felon disenfranchisement ban enforces equal protection guarantees against race discrimination under the 14th amendment and enforces the right to vote free of race discrimination under the 15th amendment. In particular, the federal government could argue that it is intentional past (and potentially present) race discrimination in this country that leads to cycles of poverty in minority communities, and that such poverty makes it more likely that members of these communities will be arrested. In addition, the government could argue that state discrimination in the administration of the criminal justice system makes it more likely that minorities will be convicted of felonies and therefore disenfranchised. The article concludes that in light of the Supreme Court's new federalism jurisprudence it is uncertain whether the Supreme Court would uphold such a law on this basis as a permissible exercise of congressional power, leaving state legislatures as the prime locus for changes to felon disenfranchisement laws.

Keywords: voting rights, election law, felon disenfranchisement