In a February statement by the United States Attorney General Eric Holder, he decided to announce a new push by the Department of Justice to fight state laws that restrict the voting privileges of convicted felons. In doing so, he stated that “By perpetuating the stigma and isolation imposed on formerly incarcerated individuals, these laws increase the likelihood [that felons] will commit future offenses.” He went on to attack such laws on the basis of their disproportionate effect on minority communities that they impose, presuming higher rates of convicted felons in minority communites, and the nature of the laws as being of an additional punishment levied on felons who have already served their due sentence. While these arguments appear facially valid, whether or not they could withstand legal challenge as a reason for why such laws should be repealed still stands to be seen.
Looking at the current climate of state law regarding voting restriction for felons, eleven states currently have laws on the books which permit permanent restriction of voting privileges, with some allowing leeway depending on the nature of the offense and the time that has elapsed since commission. Twenty states currently allow restoration of voting privileges following incarceration, parole, and probation. Four states permit restoration after incarceration and parole. Thirteen states and the District of Columbia permit restoration following incarceration. Finally, two states permit felons to retain voting privileges even while incarcerated by means of absentee ballots. Based on these numbers, the vast majority of states appear to be in line with the sentiment that following retribution and rehabilitation, voting privileges can be restored in full, with only about a fifth of states permitting permanent restriction. While the efforts of the Department of Justice are not without merit, the Supreme Court of the United States has held that such permanent restriction is valid based on their interpretation of the Fourteenth Amendment.
In 1974 in Richardson v. Ramirez, the Court ruled that based on the language in Section 2 of the Fourteenth Amendment reading, “[T]he right to vote . . . in any way abridged, except for participation in rebellion, or other crime . . .,” that this reflected an affirmative mandate which permits the restriction of voting privileges based on the commission of a crime. Because this baseline decision was rooted in the Fourteenth Amendment, the Department of Justice’s assertions that state laws which restrict voting privileges have a disproportionate effect on minority communities would need to show that such laws cannot survive a strict scrutiny test. Such a test would be necessary due to the fact that a strict scrutiny test is applied when a law or government action is challenged based on the incorporation of a suspect classification such as race, which would arguably be the theory under which the Department of Justice would oppose such laws.
Such a challenge appears to be facially valid, since the Supreme Court has already held previously in a case involving a voting restriction law in Hunter v. Underwood that a facially neutral law with racially disproportionate effects can amount to a violation of equal protection. Given this ruling by the Court, it would appear that so long as the Department of Justice is able to produce evidence sufficient to support a disproportionate effect along racial lines that such laws can be invalidated. Based on estimates of the racial makeup of the United States, African-Americans and Hispanics make up only thirteen percent and fifteen percent (respectively) of the population, they comprise thirty-eight and twenty percent (respectively) of the prison population. Given these numbers, the argument can certainly be made that there may be a valid argument that such statistics reflect the foundation for what could become grounds for impermissible voting restriction based on a disproportionate racial impact.
Returning to the comments made by Eric Holder, he alluded that in this push for reexamination of voting restrictive laws, that such efforts may find support from across the aisle from vocal libertarians. It will be interesting to see the dynamic that unfolds if such alliances are formed given the pushback that the Department of Justice has faced in recent years from such allies. One interesting consideration that I believe will become part of the discussion if such voter law changes are proposed, is that of the current laws barring felons from gun ownership. I believe the argument can and likely will be made by right of center libertarians who believe government intervention into the lives of citizens should be avoided at all costs, that if restriction of voting privileges can be found to be a violation of equal protections, restrictions on gun ownership by felons could face similar challenges based on the same argument of disproportionate minority impact. While certainly a much more difficult argument to press under a strict scrutiny challenge, given the reasonable argument that keeping guns out of the hands of dangerous people is a compelling state interest, I think it would be an interesting development to see nonetheless.
Given that the right to bear arms and the Second Amendment is included in the bill of rights and precedes the argued voting rights protections contained in the Fourteenth Amendment, I am willing to pose the argument that given the Constitutional prominence of such rights, that they deserve the same level of protection as voting. While this may not be a popular or even a winning argument, I believe that given the current level of media attention that Second Amendment rights have been receiving, that a push for striking down laws resulting in felon voter disenfranchisement could have a reciprocal effect of creating a push for restoring the firearm ownership rights of the same disenfranchised individuals. Though this post is directed mainly at this latest direction of the Department of Justice’s efforts towards felon voting disenfranchisement, I believe a discussion of felon gun ownership is a natural corollary if the basis of repealing felon voting laws is in fact premised on disproportionate racial impact.
Senior Staffer, Criminal Law Practitioner
Image by Tom Arthur from Orange, CA, United States (vote for better tape Uploaded by Petronas), via Wikimedia Commons.