Will The Court Revisit Felon Disfranchisement Laws This Term?

September 30, 2004 12:00 am

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ACLU Supreme Court Preview: 2004 Term

Statement of General Counsel Frank Askin


WASHINGTON — Some have described felon disfranchisement as the last vestige of slavery in our country. Of the approximately five million adults who will be forbidden from voting this year because of a criminal conviction, 40 percent are black and the overwhelmingly majority are people of color. A recent study by the United States Civil Rights Commission reports that 13 percent of all black males in the country are disfranchised because of a felony conviction.

Nor can it be mere coincidence that felon disfranchisement laws are most harsh in the Southern States, which have a 150-year, post-Civil War history of crafting laws to prevent the descendants of former slaves from voting – including poll taxes, literacy tests and a host of other barriers which disparately impacted the poor and the under-educated.

Thanks to constitutional and statutory reforms and aggressive civil rights advocacy, most of those barriers have been eliminated one by one. However, because of a strained reading of Section 2 of the Fourteenth Amendment in an opinion by Justice Rehnquist in 1974, felon disfranchisement laws have been able to survive efforts to expand the franchise and provide equal voting opportunity to minority groups.

Section 2 provides that whenever a state denies the right to vote to otherwise qualified inhabitants, the state’s representation in Congress will be reduced in proportion to the number of persons excluded from the franchise – except when disfranchisement is based upon “”participation in rebellion or other crime.”” The provision was obviously intended to punish any of the former Confederate States which tried to prevent former slaves from voting by reducing their representation in the national legislature.

The Rehnquist opinion in Richardson v. Ramirez read the provision as an exception to the Equal Protection Clause of Section 1 of the Amendment and a grant of authority to the states to disfranchise any person convicted of a crime. Notably, several years before Richardson a three-judge court in the District of New Jersey, in an opinion written by the future Chief Judge of the Third Circuit John Gibbons, disposed of the same argument as essentially frivolous, holding that “”it can hardly be argued that the exception or proviso in Section 2 was intended to impose such a limitation”” on the Equal Protection Clause. But that’s exactly what the Supreme Court held just a few years later. And while in a subsequent case out of Alabama, the Supreme Court ruled that felon disfranchisement laws would deny Equal Protection if it could be proven that the Legislature had acted with deliberate intent to discriminate on the basis of race, proof of actual intent is just about impossible.

Now a vast movement is developing in this country to once and for all restore voting rights to qualified citizens who have been deemed to have paid their debts to society and have been returned to their communities. Indeed, it is worth noting that in Canada (as a consequence of a recent high court decision) and in two of the United States, Maine and Vermont, even incarcerated prisons are entitled to vote.

Because of the barrier imposed by Richardson v. Ramirez to a claim directly under the Federal Constitution, the current legal attack on felon disfranchisement focuses on the Federal Voting Rights Act, which prohibits states from adopting any voting practice or procedure which results in an abridgement of the right to vote because of race or color, and provides that a violation is shown if:

based on the totality of circumstances, it can be shown that the political process is not open to participation by members of protected class in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.

Circuit Courts are sharply split on whether the Voting Rights Act was intended to apply to felon disfranchisement laws, and if it was, whether Congress could constitutionally do so in the face of Ramirez.

The first of those cases to reach the Court on a cert petition is Farrakhan v. State of Washington, in which a Ninth Circuit panel unanimously ruled that the Voting Rights Act did apply to felon disfranchisement laws, and that the plaintiffs could prevail if they could prove, as they alleged in their complaint, that the disparate impact on the minority community was in fact an artifact of the discriminatory operation of the criminal justice system. In other words, it would satisfy the standard established by the Voting Rights Act if it were true that members of a protected class could demonstrate that they were investigated, arrested, prosecuted and convicted (and thus disfranchised) in numbers way out of proportion to their propensity to commit crime because of racial profiling and other discriminatory practices. Petition for rehearing en banc was denied by the Ninth Circuit with seven dissents.

A similar 2-1 decision by a panel of the Eleventh Circuit (Johnson v. Bush ) was vacated by the en banc court and rehearing is pending. Meanwhile, a Second Circuit panel disagreed with the Ninth Circuit in Montaqim v. Combe, and plaintiffs in that case have filed a petition for certiorari.

Farrakhan was on the Court’s conference agenda for last Monday, and all we know now is that the writ was not granted. However, the reply in the Second Circuit case is not yet due, so it is possible that the Court has decided to consider both cases together.

In any event, even if the Court decides not to take up felon disfranchisement laws this term, in light of the clear split in the Circuits, it will not be too long before the issue is back on the Court’s docket.

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