INTRODUCTION
I. LITERACY TESTS
A. Historical Origins and Discriminatory Intent
B. Structural and Discretionary Discriminatory Effects
1. Educational inequality
2. Implementation bias
C. Justifications for Literacy Tests
1. Biological claims of inferior intelligence
2. Lassiter: The Supreme Court’s stamp of approval
D. The Voting Rights Act: The Prohibition of Literacy Tests
II. FELON DISENFRANCHISEMENT
A. Discriminatory Origins
B. The Societal Impact of Felon Disenfranchisement
1. The incarceration boom
2. Racial bias in the criminal justice system
3. The effect on voting rights of felons and ex-felons
C. Implementation Bias
1. Discriminatory execution of felon disenfranchisement laws
2. Discretion in restoring voting rights
D. Justifications for Felon Disenfranchisement Laws
1. Rhetoric and rationality
2. Criminality
E. Challenges in Court
1. Amended section 2 of the Voting Rights Act
2. The Equal Protection Clause
3. Other alternatives
CONCLUSION
The right to exercise the franchise in a free and unimpaired
manner is preservative of other basic civil and political
rights. (1)
–Chief Justice Earl Warren
INTRODUCTION
Earl Warren once said that of all the Supreme Court decisions he
wrote, he was most proud of Reynolds v. Sims (2) because it ensured that
“elections would reflect the collective public interest.” (3)
Forty years after that seminal voting rights decision, the voices of
felons and ex-felons, groups disproportionately comprised of minorities,
are absent from Warren’s vision of the collective public–and the
numbers of felons and ex-felons are growing. The incarceration boom of
the past three decades, combined with the corresponding collateral
consequences stemming from criminal convictions, has ingrained into
modern society a minority underclass resembling that of the stratified societal structure present during the Jim Crow era. Felon disenfranchisement laws deny the right to vote to a whopping 2.3% of the
U.S. voting-age population: (4) most of this disenfranchised group are
citizens of color. The structure and effect of felon disenfranchisement
laws have many similarities to a relic from Chief Justice Warren’s
days: literacy tests. Courts and Congress (eventually) determined that
literacy tests served as a tool of racial discrimination and political
exclusion. Today, felon disenfranchisement laws discriminate against,
and politically exclude, minorities in many similar ways.
During the Jim Crow era, Southern state governments and officials
used a number of methods to disenfranchise blacks, including physical
force and threats, but literacy tests provide a particularly apt lens
through which to view the disenfranchising schemes and rationales of
that era. By the 1950s and 1960s, literacy tests were the last
remaining, most prevalent, and most effective mechanism of political
exclusion, and their eradication required significant and controversial
congressional action. Similarly, felon disenfranchisement provisions are
the most noteworthy of a growing number of collateral consequences of
criminal sentences, often referred to as “civil disabilities,”
that perpetuate the economic, social, and political exclusion of
minorities. Disenfranchisement often is singled out because it “is
the harshest civil sanction imposed by a democratic society.” (5)
Since the right to vote confers upon individuals the ability to
influence the application of all other collateral consequences, (6) and
instills a sense of civic responsibility and relevance, felon
disenfranchisement is a particularly significant and devastating civil
disability.
There is a tremendous amount of legal scholarship addressing felon
disenfranchisement, particularly since the disputed federal election in
2000, (7) but the issue has only recently regained attention from the
courts. Three courts of appeals have recently addressed the intersection
of racial discrimination in the criminal justice system and felon
disenfranchisement laws, and although the Supreme Court recently decided
not to address the issue, it may have another opportunity in the near
future. Most scholarly publications on this topic attempt to either set
forth or debunk the various legal arguments and justifications for felon
disenfranchisement provisions. That is not the objective of this Note.
Instead, this Note intends to build on those arguments by framing the
issue in a different manner with the hope of altering the calculus used
to analyze the legitimacy of felon disenfranchisement laws.
Unquestionably, there are differences between felon disenfranchisement
and literacy tests–the most important of which is the fact that, unlike
literacy tests, one must be convicted of a crime in order to be affected
by felon disenfranchisement laws. Yet by illuminating the similarities
between felon disenfranchisement provisions and literacy tests, and
illustrating the analogous paths of each type of regulation, this Note
attempts to show that felon disenfranchisement laws do, at the very
least, advance a mechanism for political exclusion and social control in
the same manner as literacy tests. Furthermore, the rhetoric and
justifications used to support both policies are remarkably alike,
marked by racial stereotypes and thinly veiled messages of exclusion.
Even if those who favor felon disenfranchisement are not swayed by these
similarities, this Note aims to demonstrate a genuine structural and
temporal continuity between the two voting restrictions that might alter
the discourse surrounding the issue, thereby placing felon
disenfranchisement in a new framework as the issue approaches the
Supreme Court.
Both felon disenfranchisement laws and literacy tests are justified
as provisions entirely divorced from race because they are formally
facially neutral. Yet felon disenfranchisement laws mirror the
discriminatory, nature of literacy tests in two important ways: (1) they
each depend on racial discrimination in other relevant areas of American
society to produce a racially disparate impact, and (2) the racial bias
associated with the discretionary implementation of each regulation
serves to exclude minorities, particularly African Americans, from the
political process. Whereas literacy tests systemically incorporated a
state’s educational system in an era when blacks received unequal
education in segregated schools, felon disenfranchisement provisions
incorporate a state’s criminal justice system, which
disproportionately and detrimentally affects African Americans and other
minorities. And just as the discretionary (and discriminatory)
implementation of literacy tests contributed to Congress’s decision
to ban such tests, the discretionary nature of the criminal justice
system–from arrest to arraignment to plea bargaining to sentencing–and
the implementation bias inherent in the restoration process determine
who is disenfranchised in a racially discriminatory manner.
In addition, the rhetoric used to justify both types of provisions
is based on false stereotypes and incorrect assumptions about
minorities. Moreover, the origins of the two disenfranchising schemes
indicate that both regulations often were enacted by states in an effort
to exclude minorities. Initially, both types of provisions were not the
primary methods of black disenfranchisement, but each effectively
disenfranchised a large number of African Americans after other
race-conscious mechanisms were prohibited. In fact, the effect of felon
disenfranchisement laws increased dramatically after literacy tests were
permanently prohibited by the Voting Rights Act in the 1970s. (8) Even
if this continuity ultimately fails as a legal argument under the intent
standard of the Equal Protection Clause, it nonetheless violates a
normative notion of antidiscrimination values that is recognized in the
American legal structure. Today, literacy tests are viewed as a
mechanism that had the purpose of excluding blacks from the ballot box,
even though they were not perceived that way at the height of their
application. Similarly, analyzed within the social and political context
of modern times, the dramatic effect of felon disenfranchisement laws
elicits questions about whether the discriminatory effect is
sufficiently severe to establish that a discriminatory purpose is
present. (9) Even if it is not, and even if there is no constitutional
remedy for felon disenfranchisement laws, the striking parallels between
the two types of provisions require reconsideration.
The structure of this Note is straightforward. Part I traces the
history of literacy tests, including the successful (and discriminatory)
implementation of literacy tests after World War II based on a
segregated educational system and the subjective discretionary abuse of
Southern election officials. And perhaps most relevant to the
present-day controversy over felon disenfranchisement, this Part then
analyzes the rhetoric and justifications used to support the practice,
most of which relied on the notion that intelligent voting was essential
for the well-being of the polity and that African Americans were
inherently intellectually inferior. Finally, this Part analyzes how and
why literacy tests were eradicated throughout the entire United States,
not only in states where a discriminatory purpose was evident.
Part II begins with the history of felon disenfranchisement, one
marred by discriminatory motives. This Part then traces the
incarceration boom that began in the 1970s and concentrates on the
discriminatory nature of the “tough on crime” movement,
particularly the “war on drugs,” by identifying the structural
similarities connecting its discriminatory effect to that of segregated
education. A discussion of the discretionary nature of felon
disenfranchising follows, with particular emphasis on the discretion
evident both with respect to the criminal justice system and with
respect to the implementation bias that exists in the restoration
process. This Part then examines the justifications supporting, and
rhetoric surrounding, felon disenfranchisement laws. Of particular note,
this Part draws a direct link between popular beliefs of the 1950s and
1960s–that as a result of their “ignorance,” blacks were
biologically inferior–and current beliefs–that blacks are culturally
inferior as a result of their “criminality.” Finally, this
Part includes an analysis concerning how courts have viewed challenges
to felon disenfranchisement under the Voting Rights Act and the Equal
Protection Clause based on the disproportionate relationship between
race and crime. By concentrating on the similarities to literacy tests,
this analysis reveals that the legal path of felon disenfranchisement
resembles that of literacy tests. Ultimately, a congressional act
eliminated literacy tests, and this Part ends by addressing nonlegal
alternatives for prohibiting felon disenfranchisement laws, including
both federal and state legislative initiatives. Unquestionably, there
are important differences between literacy tests and felon
disenfranchisement laws, but the depth and variety of similarities,
compounded by the suspect normative justifications for felon
disenfranchisement laws, should give pause to even their most ardent
supporters.
I. LITERACY TESTS
A. Historical Origins and Discriminatory Intent
Following the withdrawal of invasive Northern oversight and
military enforcement of the Civil War Amendments at the end of
Reconstruction, Southern states gained greater autonomy over the inner
workings of their governments. Almost immediately, most state
governments in the South tackled what was perceived to be a significant
obstacle to white supremacy: black freedom and suffrage. Starting with
Mississippi in 1890, every state in the Deep South either adopted a new
constitution or rewrote an existing constitution through
“disenfranchising conventions.” (10) The purpose of these
conventions was clear: “Discrimination!” exclaimed Carter
Glass, a delegate to the Virginia Convention of 1906. “Why that is
precisely what we propose; that exactly is what this convention was
elected for.” (11)
These conventions used various techniques for disenfranchising
blacks, including force, restrictive and arbitrary registration
practices, lengthy residence requirements, confusing multiple-voting-box
arrangements, poll taxes, and literacy tests. (12) Every constitution
employed at least one, and often several, of these techniques, (13) but
the literacy test, if not as effective as physical violence and threats,
was perhaps “the most popular method of constricting the
electorate.” (14) Literacy tests successfully satisfied
Glass’s objective, since fifty percent of all black men in the
United States were illiterate at that time. (15) In the South, the
statistics were even more striking. In 1890, sixty-nine percent or more
of the adult blacks in seven Southern states that adopted literacy tests
were illiterate. (16)
Yet illiteracy did not plague African Americans alone at the turn
of the twentieth century. According to historian C. Vann Woodward,
“[o]f the 231 counties in the United States in which 20 percent or
more of the whites of voting age were illiterate, 204 were in the
South.” (17) Although an objective literacy test would have
disproportionately affected blacks in the South, it also would have
dramatically reduced the number of white voters. (18) This posed a
political problem at the disenfranchising conventions, because an
objective literacy test would disenfranchise a significant number of
whites in addition to the majority of blacks, the conventions’ true
target. As a result, discriminatory implementation was built into the
literacy tests from the outset. Mississippi invented the
“understanding clause,” (19) and Louisiana created the
“grandfather clause.” (20) The “understanding
clause” allowed officials administering the test to judge whether a
prospective voter’s “understanding was adequate.” (21)
The “grandfather clause” permitted anyone who could vote on
January 1, 1867, and his sons and grandsons, to continue to vote without
passing the required literacy test. (22) Property ownership provisions
and good-character tests–restricting the franchise to those who
“understood the duties and obligations of citizenship under a
republican form of government”–also allowed whites to sidestep the
literacy test when needed. (23)
In the first part of the twentieth century, however, the literacy
test was a secondary method of excluding blacks from the political
process. As the federal government and the Supreme Court backed away
from the problems created by Jim Crow laws in the South, other methods
clearly predicated on race–such as threats, force, and
exclusion–accomplished the goal of black disenfranchisement. For
example, Louisiana had had an “interpretation test” since the
1898 disenfranchising convention, but “[i]t was not needed. The
Democratic white primary made registration futile for Negroes….”
(24) Yet after Smith v. Allwright (25) and Terry v. Adams (26) formally
eliminated the white primary as a means of political exclusion, election
officials in Southern states returned to long unused constitutional
provisions endorsing literacy tests in an effort to exclude blacks. (27)
In 1946, Mississippi senator Theodore Bilbo said that in order to
register, a man “must be able to read and explain … a
Constitution that damn few white men and no niggers at all can
explain.” (28)
B. Structural and Discretionary Discriminatory Effects
Literacy tests, particularly when administered under the unchecked
discretion of the registrars, had dramatic effects in the Jim Crow
South. In the 1960 presidential election, fewer than three out of ten
Southern blacks–1.4 million–registered to vote. (29) A 1968 report by
the U.S. Commission on Civil Rights noted that prior to the enactment of
the Voting Rights Act of 1965, (30) a paltry 6.7% of nonwhites were
registered to vote in Mississippi (compared with 70% in 1867 (31)), only
19.3% in Alabama, and no more than 38.3% in any of the six Southern
states that qualify as “covered jurisdictions” under the
Voting Rights Act. (32) In the Jim Crow South, after other
race-conscious methods of disenfranchisement were ruled
unconstitutional, (33) literacy tests were effective in excluding blacks
from the political process primarily for two reasons: (1) education was
unequal as a result of segregated schools, and (2) the tests were
implemented with tremendous individual discretion. (34)
1. Educational inequality
In 1954, the Supreme Court invalidated segregated schools as a
violation of the Equal Protection Clause of the Fourteenth Amendment,
noting that “[s]eparate educational facilities are inherently
unequal.” (35) The Court reiterated that “[s]egregation with
the sanction of law, therefore, has a tendency to (retard) the
educational and mental development of Negro children….” (36)
Accordingly, a voting restriction that relied upon education in a
segregated society inevitably provoked constitutional concern. (37) In
Gaston County v. United States, the Court put it simply: “[T]he
County deprived its black residents of equal educational opportunities,
which in turn deprived them of an equal chance to pass the literacy
test.” (38) Members of Congress recognized that even if a literacy
test was racially neutral on its face, “it may disproportionately
disadvantage minorities when applied to persons denied equal educational
opportunities.” (39) Objective literacy tests retained legitimacy
only if discrimination in other areas of the social system did not enter
the equation. But that was not the case in an era of educational
segregation. Justice William Brennan put it best: “Congressional
power to remedy the evils resulting from state-sponsored racial
discrimination does not end when the subject of that discrimination
removes himself from the jurisdiction in which the injury
occurred.” (40)
2. Implementation bias
The truly devastating impact of literacy tests resulted from the
discriminatory, discretionary implementation of the registration
requirements. (41) The voting registrars had complete control over
whether an applicant would be tested (42) and whether she would pass the
test. (43) In one instance, a rejected black applicant stated that the
registrar “said what I was saying was right, but it wasn’t
like she wanted me to say it.” (44) Because Southern registrars
were unchecked by an objective authority, and the administration of the
tests was inherently subjective, blacks had little chance of passing the
literacy test if the registrar so desired. In fact, some blacks with
postsecondary-education degrees were denied the vote because they
“failed” the literacy test. (45) The effect of this discretion
was profound: many blacks did not even attempt to register, and those
that did were denied access to the ballot in numbers that exceeded the
number of blacks who actually were illiterate. In addition to
educational inequality that placed blacks at an objective disadvantage,
the subjective nature of the administrative discretion succeeded in
almost completely excluding blacks from the ballot box. By the 1960s,
nearly a full century after the ratification of the Fifteenth Amendment,
black participation in the political process, particularly in the South,
had only marginally increased.
C. Justifications for Literacy Tests
1. Biological claims of inferior intelligence
Support for black disenfranchisement developed from an array of
theoretical and practical underpinnings. Despite the eradication of
slavery, Southern white supremacists wanted to maintain control over
their schools, governments, and culture. Justification for
disenfranchisement was premised on a core belief that blacks were
biologically and innately inferior to whites. The white Southerner
wanted blacks to find their “place,” after which, he believed,
race relations would improve and the two races could coexist. (46) As in
the social structure of slavery, blacks’ “place” was
categorically beneath the white man, where those who were less
intelligent were thought to belong. According to I.A. Newby,
justification for “[d]isfranchisement was not a result of racial
discriminations, as commonly alleged, but of the Negro’s ignorance,
immorality, proneness to crime, and failure to pay a nominal poll
tax.” (47) The literacy test was merely a mechanism to control the
black population, and it was rational and sensible, according to those
who supported it, because the black population was ignorant, uneducated,
and inferior. (48) Legitimate and constructive civic participation
required a certain level of intelligence, knowledge, and understanding,
the theory went, and blacks were not capable of meeting such
requirements. (49)
At the South Carolina constitutional convention of 1895, Senator
Ben Tillman, a dominant political figure at the time, explained that the
aim of the literacy test was to take the vote away from the
“ignorant blacks.” (50) Public claims that blacks were less
intelligent continued through World War II. (51) Even in the early
1960s, well-respected scientists propagated the notion that African
Americans were biologically inferior to whites. In 1962, Dr. Wesley C.
George, former chairman of the department of anatomy of the University
of North Carolina’s medical school, “proved” that whites
and blacks were biologically unequal. (52) Only four years earlier, Dr.
Audrey M. Shuey, chairman of the psychology department at Randolph-Macon
College, had similarly “proved” that blacks were
intellectually inferior to whites. (53) Several highly respected
psychology professors at the time endorsed this opinion as well. (54) To
many, this supported the notion that literacy tests should weed out
those unfit to participate in the political process. Today, of course,
scientists and academics understand that biology has no relation to
race. Historian Barbara Fields sums up the current viewpoint:
“Anyone who continues to believe in race as a physical attribute of
individuals, despite the now commonplace disclaimers of biologists and
geneticists, might as well also believe that Santa Claus, the Easter
Bunny and the tooth fairy are real, and that the earth stands still
while the sun moves.” (55)
2. Lassiter: The Supreme Court’s stamp of approval
The U.S. Supreme Court added its imprimatur to literacy tests in
Lassiter v. Northampton County Board of Elections. (56) In upholding the
constitutionality of literacy tests, the Court refrained from
participating in any inquiry beyond a pure facial analysis of the voting
restriction: “The ability to read and write … has some relation
to standards designed to promote intelligent use of the ballot. Literacy
and illiteracy are neutral on race, creed, color and sex….” (57)
Five years after acknowledging that segregated schools were
“inherently unequal” in Brown, the Court also recognized that
“[l]iteracy and intelligence are obviously not synonymous.
Illiterate people may be intelligent voters.” (58) Yet the Lassiter
Court ruled that North Carolina’s literacy test served a legitimate
purpose in “promot[ing] intelligent use of the ballot.” (59)
Lassiter antedated the establishment of the right to vote as a
fundamental constitutional right (60) subject to a strict scrutiny analysis; (61) as a result, it has never been expressly overruled by the
Court. Yet Lassiter is instructive because it validated a common belief
in society at the time–that literacy tests served a legitimate purpose.
Most Americans today look back at literacy tests as a blatantly
discriminatory means of excluding blacks from the ballot box. But during
their heyday, when blacks were consistently excluded from the ballot
booth, (62) even the Supreme Court agreed with the race-neutral
justifications of the practice.
D. The Voting Rights Act: The Prohibition of Literacy Tests
Despite Lassiter, courts and (in particular) legislators soon
recognized that literacy tests served no legitimate purpose; rather,
they solely perpetuated the exclusion of blacks from the political
process. Literacy tests had been successfully substituted for
prohibited, race-conscious forms of exclusion denying African Americans
the right to vote. In 1965, after several years of court rulings that
literacy tests in particular counties throughout the South discriminated
against African Americans, (63) Congress passed the Voting Rights Act, a
broad measure designed to realize the promise of the Fifteenth
Amendment, albeit ninety-five years later. (64) The Act, among other
things, provided that citizens could not be denied the right to vote
because of “failure to comply with any test or device.” (65)
There was little doubt as to why this section was enacted: “The
inescapable conclusion is that these tests were not conceived as and are
not designed to be bona fide qualifications in any sense, but are
intended to deprive Negroes the right to register to vote. The only real
function they serve is to foster racial discrimination.” (66)
Initially, this provision was designed to last five years and
applied only to political subdivisions that employed literacy tests and
had low voter registration statistics. (67) The Act also required that
the Attorney General appoint federal voting examiners to properly
oversee the voting registration process. (68) The results were dramatic.
Voting registration, particularly among blacks, skyrocketed, (69)
prompting Congress to extend the ban on literacy tests to the entire
nation in 1970, (70) and make it permanent in 1975. (71) Indeed, the
legislative history regarding the nationwide ban on literacy tests in
1970 emphasized that literacy tests in all states, whether located in
the South or not, infringed upon the fundamental right to vote:
The [Voting Rights] Act has reconfirmed the faith of many that
exercise of the franchise and political participation today
represent the best and most productive means of achieving social
change. The Nation has a vital stake in further securing the gains
thus far achieved, and in encouraging all its citizens to exercise
their right to the franchise. (72)
In 1966, the Supreme Court upheld the Voting Rights Act as a
legitimate use of Congress’s authority to enforce the Fifteenth
Amendment and preserve the right to vote for all U.S. citizens of voting
age. (73) The Act purported to eliminate the last vestiges of black
disenfranchisement from the Jim Crow era. (74) President Lyndon B.
Johnson called the Act the “tumbling” of “the last of the
legal barriers” to voting. (75) The promise of the Fifteenth
Amendment had been realized, popular opinion suggested, and Jim Crow-era
political exclusion would follow segregated education into the history
books. In truth, however, one discriminatory restriction on the right to
vote was not addressed: felon disenfranchisement.
II. FELON DISENFRANCHISEMENT
A. Discriminatory Origins
Criminal disenfranchisement can trace its roots in the United
States even earlier than the Reconstruction era, but during the Second
Reconstruction in the late 1950s and 1960s, (76) neither the Court nor
Congress considered it to be a sufficiently significant restriction on
the franchise to warrant attention. (77) Felon voting restrictions were
the first widespread set of legal disenfranchisement measures imposed on
African Americans; the literacy tests and other mechanisms for political
exclusion followed at a later date. (78) By the start of the Civil War
in 1861, slightly more than half of all states had broad felon
disenfranchisement laws. (79) Yet by the end of Reconstruction in 1876,
nearly eighty-seven percent of states had felon disenfranchisement laws,
(80) and in the decades that followed, many states revisited, amended,
or created new felon disenfranchisement laws. Today, only two states
(Maine and Vermont) permit prisoners to vote. Now’, more than a
century after the disenfranchising conventions in the New South,
criminal disenfranchisement is the only substantial voting restriction
that remains from that era. (81)
The racial underpinnings of felon disenfranchisement trace those of
literacy tests. As one might expect following the Civil War, the
percentage of nonwhite prison inmates nearly doubled between 1850 and
1870. (82) Yet in some states, the statistics were far more striking. In
Alabama, for example, 2% of the prison population was nonwhite in 1850,
yet by 1870, 74% of the prison population was nonwhite, even though the
total nonwhite population increased by only 3%. (83) Felon
disenfranchisement provisions offered a tangible response to the threat
of new African American voters, a response that helped to preserve
racial political exclusion during the Reconstruction era. “Narrower
in scope than literacy tests or poll taxes and easier to justify than
understanding or grandfather clauses, criminal disenfranchisement laws
provided the southern states with ‘insurance if courts struck down
more blatantly unconstitutional clauses.'” (84) In other
words, other disenfranchising mechanisms–such as race-based
methods–were easier to implement, but criminal disenfranchising laws
were a more subtle and discrete mechanism for restricting the votes of
African Americans. (85)
The disenfranchising conventions around the turn of the twentieth
century, however, revealed the true intent of criminal
disenfranchisement provisions. In tact, the objective of such provisions
was similar to that of literacy tests: “Many prominent southern
white politicians of this period argued that black literacy and black
criminality were ‘linked together like Siamese twins.'”
(86) The Mississippi disenfranchising convention of 1890 altered the
1869 disenfranchising provision from one that included “any
crime” to one affecting only those convicted of certain offenses
more likely to be committed by blacks, (87) Other Southern states
pinpointed “furtive offenses,” such as petty larceny,
wife-beating, and “similar offenses peculiar to the Negro’s
low economic and social status.” (88) Furthermore, Georgia and
Alabama disenfranchised those who committed crimes of “moral
turpitude,” regardless of whether such a crime resulted in a prison
sentence. (89) Yet the impact of the felon disenfranchisement laws at
the time of their enactment appears to be minimal because other methods
of political exclusion were not only easier to implement, but were
largely ignored by the federal government and federal courts. It was not
until after literacy tests were permanently prohibited in 1975, and the
incarceration boom commenced, that felon disenfranchisement laws began
to disenfranchise a disproportionately large number of African
Americans.
B. The Societal Impact of Felon Disenfranchisement
1. The incarceration boom
When the Voting Rights Act eliminated one form of political
exclusion–literacy tests–another form of voting restriction–felon
disenfranchisement–began to affect greater numbers of people. The 1970s
marked the beginning of an incarceration boom that has resulted in there
being six times as many prisoners today as there were thirty years ago.
(90) Nearly 1.4 million Americans are currently in state or federal
prison, and the number reaches two million when the jail population is
considered. (91) There are 4.5 million Americans on parole or probation,
(92) and forty-seven million Americans–one quarter of the adult
population–“have criminal records on file with federal or state
criminal justice agencies.” (93) Furthermore, the United
States’s felon rate is significantly higher than those of other
countries. (94)
A number of factors have contributed to the incarceration
expansion: mandatory minimum sentences that remove judicial discretion
from the sentencing process, truth-in-sentencing laws that require a
certain percentage of a sentence to be served, and severe penalties for
recidivism are at least partially responsible. (95) Yet the most
significant contributor has been the war on drugs. The number of drug
offenses today is eleven times greater than in 1980. (96) In 1980, one
study indicated there were 581,000 total drug arrests; by 1995, that
number had nearly tripled. (97) Moreover, statistics show that the
increase in drug arrests is not a result of an increase in drug use. In
1979, 14.1% of the population reported using drugs in the past month,
whereas only 6.1% made the same admission in 1995. (98) Proportionally,
drug offense convictions have grown dramatically over the past two
decades. In 1980, 25% of federal prisoners were in prison for drug
offenses; by 1995, that percentage had escalated to 60%. (99) While
these numbers are startling, the war on drugs might be merely another
questionable policy decision if it were not for the dramatic and
discriminatory effect it has had on minorities.
2. Racial bias in the criminal justice system
In large part because of the war on drugs, nonwhites have
disproportionately borne the brunt of the criminal justice system.
Indeed, race, crime, and the criminal justice system are inextricably linked. Just as African Americans received inferior education as a
result of segregation during the Jim Crow era, blacks do not receive the
same treatment as whites do in the criminal justice system. Half of all
prison inmates are African American–far out of proportion to their
numbers in the general population. (100) In 1996, the rate of
imprisonment for black men was 8.5 times that of white men. (101) In
1995, a study by the Sentencing Project found that one in three black
males in their twenties was under some form of criminal justice
supervision on any given day. (102)
Some scholars and commentators argue that there is a simple
explanation for these statistics: African Americans commit more crimes.
(103) Even if that were true, it would not explain the degree of
disproportional treatment nonwhites endure in the criminal justice
system. The rate of black arrests for violent crime, while
unquestionably high, has remained relatively stable (fluctuating between
43% and 47%) since 1980, yet the proportion of prison cells occupied by
blacks has increased during that time. (104) Studies have shown that
discrimination pervades the entire criminal justice system, from arrest
to sentencing. A study by the San Jose Mercury News, for example,
analyzed the processing of 700,000 criminal cases. The analysts
concluded that after arrest, whites were more successful than nonwhites
“at virtually every stage of pretrial negotiation.” (105)
Blacks also are convicted more frequently than whites for the same
crime, (106) and are far more likely to be sentenced to prison, and for
longer terms, than whites convicted of the same crimes. (107) At the
absolute final step of the process, David Baldus has shown, defendants
charged with killing whites are 4.3 times more likely to receive the
death penalty than defendants whose victims were black. (108)
Yet the real racial disparity in treatment exists with respect to
nonviolent, victimless crimes, where the discretion of the actors within
the criminal justice system is most influential. Similar to the
discretionary administration of literacy tests, those responsible for
waging the “war on drugs” have the discretion to choose which
of the many drug users or distributors to arrest. Unlike crimes with
victims, in which law enforcement authorities have a victim and can
investigate and pursue the criminal actor based on a set of clues, there
are far more drug infractions than can be policed. (109) It is in this
context where the criminal justice system is most discretionary and most
significantly skewed toward arresting, prosecuting, convicting, and
sentencing to prison a disproportionate number of blacks. (110) Today,
blacks and Latinos constitute four out of every five drug offenders in
state prison, (111) and arrest rates for drug offenses are six times
higher for blacks than for whites. (112) One 1997 study of drug law
enforcement in Massachusetts found that blacks were thirty-nine times
more likely to be incarcerated for a drug offense than whites. (113)
Data indicates that whites make up more than three-fourths of all drug
users. (114) While, admittedly, most drug arrests are for drug
possession and distribution, statistics also show that blacks are
disproportionately arrested on these charges. In 1980, African Americans
accounted for 21% of drug possession arrests and 35% of arrests for drug
distribution. In 1995, black arrests for possession constituted 33% of
all such arrests; the corresponding figure for drug distribution arrests
was 49%. (115)
While law enforcement discretion explains much of the racial
disparity in drug offenses, there is also evidence that drug laws
originated with a discriminatory intent. In an important article
addressing race, drugs, and collateral consequences, Gabriel J. Chin
contends that crimes relating to drug use “were criminalized in
part because of their association with disfavored minority groups.”
(116) According to David Musto, the foremost authority on the history of
drugs and alcohol in America, “[c]ertain drugs were dreaded because
they seemed to undermine essential social restrictions which kept these
groups under control: cocaine was supposed to enable blacks to withstand
bullets which would kill normal persons and to stimulate sexual
assault.” (117) Today, not surprisingly, cocaine provides the best
example of racial bias in the war on drugs. The Federal Sentencing
Guidelines apply the identical punishment a mandatory five-year prison
sentence–for possessing five hundred grams of powder cocaine and
possessing five grams of crack cocaine. (118) A report published by the
U.S. Sentencing Commission noted that 65% of the persons who used crack
in 1993 were white, yet whites constituted only 4% of the federal
offenders convicted of trafficking in crack. On the other hand, 88% of
such defendants were black. (119) Further, the crack/cocaine disparity
is not an isolated example of discriminatory drug laws and policies. For
many years in Milwaukee, for instance, possession of marijuana was
classified as a misdemeanor within the city limits, yet the same
behavior in the suburbs was treated as an ordinance violation. As a
result, the arrests in the city, mainly of nonwhites, resulted in jail
time and a criminal record, while pot smokers in the suburbs, mainly
whites, were merely issued a ticket and forced to pay a fine. (120)
These examples are but two of many, but they effectively portray the
broad spectrum of discriminatory drug laws in the United States.
Even social scientists who generally discount claims of racial
discrimination in the criminal justice system recognize that drug laws
do, in fact, treat racial minorities in a discriminatory manner. For
example, Michael Tonry notes that “[d]rug law enforcement is the
conspicuous exception [to the proper correlation between race and the
criminal justice system]. Blacks are arrested and confined in numbers
grossly out of line with their use or sale of drugs.” (121)
Furthermore, drug law enforcement is more susceptible to abuse because
of its discretionary nature. It is easier to make arrests in inner-city
neighborhoods, where drug dealing is generally conducted outdoors, than
in suburban neighborhoods, where exchanges are more likely to occur
behind closed doors. (122) In addition, costly litigation is less likely
when a poor, inner-city black person is arrested than when a middle- or
upper-class white suburbanite is charged. (123)
Discretionary discrimination at the point of entry into the
criminal justice system is also a significant concern. Several studies
have documented the racially tainted policies and practices of law
enforcement agencies that stop, search, and arrest a disproportionate
number of minorities, a practice commonly known as racial profiling.
(124) In Volusia County in central Florida, for example, researchers
documented traffic stops made by local police in the late 1980s. More
than 70% of all drivers stopped were either African American or
Hispanic, yet blacks constituted only 12% of the driving-age population
in the state and only 15% of drivers convicted of traffic violations.
(125) The problem of racial profiling has even been recognized by
President George W. Bush and Attorney General John Ashcroft, both of
whom have called for an end to the practice. (126) When racial bias
exists at the point of entry into the criminal justice system, it has a
dramatic trickle-down effect throughout the rest of the process because
prosecutors can only prosecute those who are arrested and judges can
only adjudicate cases that come before them. Indeed, from the point of
entry to the sentencing decision, African Americans are treated in an
unequal and disparate manner by the criminal justice system in ways that
cannot fully be reconciled by actual crime statistics. In this way, the
criminal justice system shares similar characteristics with the
“inherently unequal” system of segregated education: a
state-run element of society conducts its business in a discriminatory
manner. The achievements of the civil rights movement and the Civil
Rights Act of 1964 have eliminated most, if not all, facially
discriminatory policies and programs such as segregated education.
Still, the disparate impact on minorities of the criminal justice
system, particularly the “war on drugs,” is an example of a
more nuanced, facially neutral, modern-day discrimination.
3. The effect on voting rights of felons and ex-felons
Naturally, the incarceration boom and racially discriminatory law
enforcement practices and policies translate directly into an increase
in the number of disenfranchised citizens, with a corresponding
disproportionate effect on racial minorities. Discretionary law
enforcement policies, coupled with felon disenfranchisement laws,
restrict black access to the ballot box in a similar manner as did
segregated education and the discretionary implementation of literacy
tests. The rapidly increasing number of disenfranchised offenders
constitutes a rare example of substantial disenfranchisement in a world
of expanding democracy. (127) Currently, convicted felons comprise the
largest single group of Americans who are denied the vote. (128) Whereas
less than 1% of the total electorate was disenfranchised in 1976, 2.3%
of the electorate is disenfranchised as of 2000. (129) In fact, one
million disenfranchised citizens were never even sent to prison. (130)
Of the forty-eight states (and the District of Columbia) that
disenfranchise incarcerated prisoners, thirty-five prohibit parolees
from voting and thirty-one exclude felony probationers as well. (131)
Seven states deny the right to vote to all ex-offenders no longer under
the supervision of the criminal justice system, (132) and seven other
states disenfranchise certain categories of ex-felons or permit
ex-offenders to apply for restoration after a waiting period, a process
that also suffers from discretionary problems and can often be
cumbersome and difficult. (133)
As a result of these laws, more black men are disqualified today by
the operation of criminal disenfranchisement laws than were actually
enfranchised by the passage of the Fifteenth Amendment in 1870. (134)
Thirty-six percent of the disenfranchised population is comprised of
black men, and the growing number of female prisoners–also
disproportionately women of color–adds to the number of minority
citizens who cannot vote. (135) Nationwide, 7.45% of the black
voting-age population is disenfranchised (compared with only 2.3% of the
entire voting-age population), (136) and both Alabama and Florida have
disenfranchised about one-third of their black male electorate. (137)
Marc Mauer and Jamie Fellner estimate that in states that disenfranchise
ex-felons, as much as 40% of the next generation of black men is likely
to lose the right to vote permanently. (138)
The resulting effect of the conflation of felon disenfranchisement
laws and the racially discriminatory criminal justice system is that
minorities, particularly African Americans, are excluded from the
political process in disproportionate numbers. According to Mauer,
“[w]hile one might debate whether the intended effect of
disenfranchisement policies today is to reduce minority voting power, it
is inescapable that this impact could have been predicted as a logical
consequence of the nation’s wars on crime and drugs.” (139)
Further, the effect of these laws has had a tangible influence on the
political process. According to a recent study of the 2000 election
conducted by Christopher Uggen and Jeff Manza, if ex-felons had been
permitted to vote in Florida in 2000, Al Gore would have handily won the
state (and therefore the election). (140) Uggen and Manza’s study
also indicated that seven senatorial elections since 1978 would have had
a different result, and that the Senate likely would be controlled today
by Democrats if not for felon disenfranchisement. (141)
While striking, the election ramifications of felon
disenfranchisement are just one part of the problem, according to Uggen
and Manza. These sociologists have extended their work to address the
racial impact of these provisions, asserting that there is a strong
correlation between felon disenfranchisement laws and racial exclusion
and subordination. In a recent study conducted with Angela Behrens, they
found that states with greater minority prison populations are
“more likely to ban convicted felons from voting than states with
proportionally fewer nonwhites in the criminal justice system.”
(142) They concluded that “such racial disparities in punishment
drive voting restrictions on felons and ex-felons.” (143)
Though facially neutral, felon disenfranchisement laws rely on the
criminal justice system to determine who is subjected to them. In recent
years, most states that have changed their felon disenfranchisement laws
have tended to relax them. (144) In 1975, twenty-eight states
permanently disenfranchised felons, whereas only seven do today. (145)
This trend corresponds to public opinion surveys, which show that
American citizens believe that convicted offenders should be permitted
to vote after they have completed their prison time. (146) Yet the
absolute number of disenfranchised citizens of voting age continues to
grow, and the proportionate effect on minorities continues to rise.
C. Implementation Bias
In addition to the racially discriminatory nature of the criminal
justice system, a second concern regarding felon disenfranchisement
revolves around the uneven and discriminatory implementation of the
provisions. This implementation bias takes two forms: (1) false
positives and other maintenance problems, and (2) discretionary
restoration processes.
1. Discriminatory execution of felon disenfranchisement laws
The 2000 election controversy and irregularities in Florida not
only illustrated the political impact of felon disenfranchisement laws
but also the racial discrimination that can result from the
discretionary and loosely monitored implementation of those laws. In one
of the rare studies of the implementation of election laws, the U.S.
Commission on Civil Rights determined that “Florida’s
overzealous efforts to purge voters from the rolls, conducted under the
guise of an anti-fraud campaign, resulted in the inexcusable and
patently unjust removal of disproportionate numbers of African American
voters from Florida’s voter registration rolls for the November
2000 election.” (147) The purge list was rampant with false
positives, names that resembled those of convicted felons, people who
were convicted of misdemeanors, and ex-felons who had been convicted in
other states but regained the right to vote after their sentences had
been completed. (148) The Commission’s report plainly stated the
importance of this election error: “[P]oorly designed efforts to
eliminate fraud, as well as sloppy and irresponsible implementation of
those efforts, disenfranchise legitimate voters and can be a violation
of the VRA.” (149)
African Americans were placed on the purge list more often than
whites. In fact, 54% of the people whose names were on the felon list
were black, even though African Americans make up only 15% of the
Florida population. (150) For example, in one large county, the
supervisor of elections estimated that 15% of those purged were actually
eligible to vote and a majority of them were African American. (151)
Another study by The Palm Beach Post indicated that of 5400 postelection
appeals of the denial of the right to vote, Florida election officials
found that 2500 should not have been purged. (152) Considering that the
felon purge list included a disproportionate number of African
Americans, a disproportionate number of African Americans therefore were
falsely denied their right to vote because of Florida’s felon
disenfranchisement provisions. Moreover, twenty of the sixty-seven
counties in Florida determined that the purge list was not reliable and
resorted to the traditional method of identifying felons by searching
local court records. (153) Although that decision likely permitted some
felons to vote, the Post’s study revealed that at least 1100
eligible voters nevertheless were wrongly purged in counties where the
list was used. (154) Furthermore, since most states automatically
restore voting rights after leaving correctional watch, Florida
elections officials violated state law by forcing out-of-state
transplants to prove they received clemency before registering to vote.
(155) Since the 2000 election, Florida has changed this policy, but it
did not alter its purge list creation method significantly. Nonetheless,
after finding serious inaccuracies among the 48,000 registered voters on
that list this summer, Governor Jeb Bush did away with the list, thereby
restoring control to the counties for purging ex-felons from voting
rolls. (156)
Considering the exceptional nature of the election and the studies
that flowed from it, Florida has endured much more severe scrutiny than
other states. But it is unlikely that Florida is alone in implementing
election laws in a flawed and discriminatory manner. (157) Undoubtedly,
more studies will soon follow, but currently there is insufficient
information to determine if Florida is unique in this manner, or if
other states’ practices would prompt similar concerns. If these
statistics are indeed representative of other states’
implementation methods, such practices bear significant resemblance to
the discretionary abuse associated with literacy tests in the South
prior to the Voting Rights Act.
2. Discretion in restoring voting rights
Another area where implementation bias may affect minorities
disproportionately is the various state procedures for restoring voting
rights. Many supporters of felon disenfranchisement argue that there are
mechanisms in place that allow ex-felons to resurrect their voting
rights, even in states that permanently disenfranchise former offenders.
This promise is true in theory yet false in practice. A number of states
force an ex-felon to wait five or ten years before even petitioning to
have his or her voting rights restored. (158) The pardon or clemency
process is often cumbersome and sometimes provides near-impossible
obstacles to overcome. (159) In sixteen states, federal criminals cannot
receive state-mandated pardons, and the only federal method for
restoring the right to vote is through a presidential pardon. (160)
One recent study indicates that even when ex-offenders do regain
their voting rights, disproportionately few African Americans are
permitted to vote again. (161) Of the approximately 8400 individuals
whose voting rights were restored in Florida from 1997 through 2001,
only 25% were black, whereas more than half the prison population is
black and nearly half of all people convicted of felonies in Florida are
black. (162) And that percentage decreases for restoration awarded
following a clemency hearing (19%) and for full pardons that erase the
crime entirely from one’s record (15%). (163) According to a Miami
Herald special report on the clemency process in Florida, it would take
three decades before all ex-felons receive their requested hearings from
the clemency board. (164) Furthermore, blacks were also disadvantaged by
penalties for outstanding fines and court costs. (165) Until 2001,
Florida also required ex-felons to fill out a lengthy twelve-page
application in order to request restoration of their right to vote.
Questions covered such personal details as marital history, information
about parents, job status, and financial data. (166) This past summer, a
Florida state appeals court determined that state prison officials were
required to provide the form to ex-felons and assist them in filling it
out. (167) In response, Governor Bush scrapped the form altogether in
favor of an electronic notification sent by the Department of
Corrections to the clemency officials. (168)
Florida is not alone in struggling with unclear and potentially
discriminatory clemency processes. In Ohio, a recent study conducted by
the Prison Reform Advocacy Center revealed that although convicted
felons are eligible to vote upon release from confinement, many are
unaware of their right to vote while under community supervision, or are
given misleading information by state authorities. (169) And according
to a report published by the Brennan Center for Justice, the restoration
processes for eligible voters in New York, Minnesota, and Idaho also
were not implemented properly. (170) Neither of these studies examined
the racial impact of improper implementation of the restoration process,
but since minorities are disproportionately represented on felon rolls,
it is likely that they are disproportionately affected by discretionary
or improper implementation of the clemency process. Still, advocacy
organizations are just beginning to analyze various states’
implementation processes, and more work is necessary before drawing any
conclusions about the racial impact of the clemency process. If a
state’s practice disproportionately affects minorities, however, as
Florida’s process seems to do, it may violate a fundamental element
of antidiscrimination norms: once a right or privilege has been bestowed
on some, it must be implemented in an equal manner for all. Indeed, in
this arena of restoring voting rights, “[o]nce a state has decided
to restore the right to vote to some convicted felons, it has created a
secondary system of voter qualification, albeit with a unique class of
voters.” (171)
Moreover, the subjective nature of the clemency process resembles
the blanket discretion bestowed upon Southern registrars who implemented
literacy tests during the Jim Crow era. If this subjective process has a
racially disparate impact, it could fail constitutional scrutiny under
an “arbitrary and capricious” analysis. (172) Though
antidiscrimination arguments against the restoration process are
somewhat undeveloped, and information is somewhat scarce, indications
are that the implementation of this process is done subjectively and in
a discriminatory manner. If this secondary system of voter qualification
is not administered in an objectively equitable fashion, it may be in
violation of the Voting Rights Act. (173) Further, and more relevant to
the purpose of this Note, this secondary system of voter qualification
is similar to the secondary system used to circumvent literacy tests,
such as understanding and grandfather clauses and good-character tests,
which were expressly prohibited by the Voting Rights Act.
D. Justifications for Felon Disenfranchisement Laws
1. Rhetoric and rationality
Proponents of felon disenfranchisement traditionally have used a
variety of justifications to support the practice as a rational,
democratically supported policy that is necessary to maintain the
“purity of the ballot box.” (174) Indeed, much of the legal
literature on felon disenfranchisement over the past fifteen years has
attacked the rhetoric and rationales put forth in support of felon
disenfranchisement. (175) Proponents of these provisions have expressed
concerns about voter and electoral fraud (176) and felons organizing to
enact harmful changes to laws. (177) These notions have lost favor,
however, because there is little empirical evidence to support them.
(178) Increasingly, justifications have relied less on factual scenarios
and more on theoretical notions of proper voting in a democracy. While
the concept of a “pure” ballot box is more than a century old,
the importance of purity appears to have evolved from a group-based idea
of what the polity should look like to an individualized assessment of
what the voter should be like; that is, the voter must be
“pure.” Another popular argument proffered by supporters of
disenfranchisement centers on the Lockean idea of the “social
contract”: once an individual breaks a law, he has broken the
“social contract” that binds all members of a society
together, and, as a result, he should lose his right to determine the
political path of that society. (179) Recently, Senator Mitch McConnell
espoused this theory on the Senate floor: “States have a
significant interest in reserving the vote for those who have abided by
the social contract…. Those who break our laws should not dilute the
vote of law-abiding citizens.” (180)
More generally, justifications of felon disenfranchisement rely on
the underlying belief that those who break the law are forever
untrustworthy (181) or morally incompetent, (182) and therefore should
not be permitted to vote. Similar to justifications for literacy tests
based on blacks’ lack of intelligence, courts equate felons with
mentally handicapped individuals who cannot express a sane, rational
opinion in a sanctioned election. This notion dates back to 1884, when
the Alabama Supreme Court acknowledged that the right to vote is
“almost universally [denied] to idiots, insane persons, and minors,
upon the ground that they lack the requisite judgment and discretion
which fit them for the exercise.” (183) Nearly one hundred years
later, the Fifth Circuit argued that “like insane persons,
[ex-felons] have raised questions about their ability to vote
responsibly.” (184) Even today, politicians use references to moral
competence as a prerequisite to voting. Senator Jeff Sessions recently
stated that “[e]ach state has different standards based on their
moral evaluation, their legal evaluation, [and] their public
interest.” (185)
2. Criminality
Despite these spoken justifications, the underlying rationalization
for felon disenfranchisement provisions is separate from the notion that
the immoral or unintelligent should be fenced off from the ballot box;
rather, the idea is that “criminals” should be fenced off from
the rest of society. The natural evolution of methods of political
exclusion has charted a corresponding shift in the justifications used
to uphold these laws that disproportionately disenfranchise minority
citizens. Whereas literacy tests aimed to exclude “ignorant”
blacks, felon disenfranchisement provisions target “criminal”
blacks. This transformation has followed a shift from “Jim Crow
racism to laissez-faire racism.” (186) According to Lawrence Bobo
and Ryan Smith, “Jim Crow racism was premised on notions of black
biological inferiority; laissez-faire racism is based on notions of
black cultural inferiority.” (187)
This more subtle–think de facto–racism that pervades our society
today has no individual culprit; rather, it has a group-oriented
foundation. “Race prejudice operates as a collective process,
whereby racial groups project negative images onto one another that
reinforce a sense of exclusiveness,” Behrens, Uggen, and Manza
write. “One particularly salient image that may be projected onto
an ethnic or racial group is that of ‘criminal,’ linking race
and crime in public consciousness.” (188) Disenfranchisement can be
interpreted as a by-product of these efforts to justify the social
exclusion of racial minorities. (189) Indeed, felon disenfranchisement
and other collateral consequences of criminal offenses have become
instruments of “social exclusion,” according to Jeremy Travis,
that create a “permanent diminution in social status of convicted
offenders, a distancing between ‘us’ and
‘them.'” (190)
Opinion polls repeatedly find that many Americans believe blacks
are more prone to commit violent and criminal acts than whites. (191)
Crime has developed into a “racial codeword” in American
politics, “one which elicits racially charged responses from the
public. (192) Perhaps as a result of the perceived connection between
race and crime, Americans are less concerned with protecting the rights
of criminals or with rehabilitating those who have transgressed. When
standard explanations for punishment fail to adequately justify the
penalties, George Fletcher argues, the only explanation is a “war
against the criminal class.” (193) Although this war is impossible
to win, it creates a “permanent undercaste” of individuals
stigmatized as felons who find it extremely difficult to reenter and
contribute to society. (194) By denying the “permanent
undercaste” the right to vote, the social elite can ensure that the
felon class remains powerless and unable to rise within the caste
system. Some argue that because of low turnout rates and the development
of detailed redistricting that compensates for this low turnout,
permitting disenfranchised minorities will have little practical effect
on local and congressional election results. Yet even if that is the
case–and the evolution of the two-party South and the recent case
Georgia v. Ashcroft (195) cast doubt over that claim there is an
important element of civic responsibility inherent in holding the right
to vote that can have a rehabilitative effect on ex-felons. Furthermore,
this argument falls flat when considering the actual impact of literacy
tests on election outcomes, because in the one-party South, racially
polarized voting would have prevented minorities from winning more than
half the vote, even if every African American of voting age went to the
polls.
Today, the stigma of criminality is amplified by racial bias,
justifying harsh sentencing policies and felon disenfranchisement laws.
Similarly, during the literacy test era, blacks were stigmatized as
biologically inferior to justify the use of literacy tests. Both
literacy tests and felon disenfranchisement laws have race-neutral
justifications. But viewed within the political and social context of
the time, these justifications fail to explain the dramatic racially
tinged effect of the practices.
E. Challenges in Court
1. Amended section 2 of the Voting Rights Act
Until very recently, courts have rejected a legal argument, made
under amended section 2 of the Voting Rights Act of 1965,196 based on
the interaction between discrimination in the criminal justice system
and disproportional disenfranchisement of minorities. Traditionally,
courts have held that felons are not disenfranchised because of their
race “but rather because of their conscious decision to commit a
criminal act for which they assume the risks of detention and
punishment.” (197) But within the past year, two circuit courts of
appeal–the Ninth and Eleventh have conferred legal recognition on the
causal link between racial bias in felon disenfranchisement and
discrimination within the criminal justice system because the link
adversely affects “the ability of racial minorities to participate
effectively in the political process.” (198)
Armed with more information regarding racial bias in the criminal
justice system, the Eleventh Circuit in Johnson v. Bush (199) and the
Ninth Circuit in Farrakhan v. Washington (200) recognized that felon
disenfranchisement provisions in Florida and Washington, respectively,
disparately affected a “voting qualification” that abridged
the right of African Americans to vote, thus violating amended section 2
of the Voting Rights Act. Both courts rebuked the Sixth Circuit’s
Wesley v. Collins (201) rationale–that the offenders essentially chose
to commit a crime and subject themselves to punishment–and held that
the Wesley court erroneously asserted that “the disenfranchisement
of felons has never been viewed as a device by which a state could
discriminatorily exclude a given racial minority from the polls.”
(202) Recast in a different light, the Johnson court determined that
“the proper question here is whether felon status ‘interacts
with social and historical conditions to cause an inequality in the
opportunities enjoyed by black and white voters to elect their preferred
representatives.”‘ (203) In Farrakhan, the court reversed the
district court’s “by itself’ causation standard, which
required that to violate amended section 2, a voting practice or
procedure must in and of itself treat minorities in a disparate manner.
(204) In so doing, the court noted this standard “would effectively
read an intent requirement back into the VRA, in direct contradiction of
the clear command of the 1982 Amendments to Section 2.” (205) The
court concluded that under the “totality of the circumstances”
analysis of amended section 2, discrimination in the criminal justice
system interacted with the state’s felon disenfranchisement law to
represent an important factor in section 2’s disparate impact test.
(206) These two recent opinions reopen a previously dormant path toward
the elimination of felon disenfranchisement laws, and perhaps more
importantly, give judicial credence to the disparate impact on
minorities that results from the intersection of the criminal justice
system and felon disenfranchisement provisions.
Some argue that these developments stretch the constitutionality of
amended section 2. Supreme Court Justices have simply assumed that the
statute is constitutional, (207) but it remains an open question. Under
Section 5 of the Fourteenth Amendment, which provides the authority
under which Congress enacted amended section 2, Congress can only
enforce constitutional rights through congruent and proportional means;
it cannot substantively alter constitutional protections. (208) The
Second Circuit also recently noted that when interpreting an ambiguous
statute without a “clear statement” from Congress, a court
must choose the interpretation that does not call into question the
constitutionality of the statute. (209) As a result, the court held that
because the Voting Rights Act does not include a clear statement that it
applies to felon disenfranchisement provisions, the statute therefore
cannot infringe upon the state’s traditional authority in this
area.
Judge Alex Kozinski, dissenting from the Ninth Circuit’s
denial for a rehearing en banc in Farrakhan, (210) argued that the
panel’s opinion jeopardized the constitutionality of amended
section 2 because the section “‘is so out of proportion to a
supposed remedial or preventive object that it cannot be understood as
responsive to, or designed to prevent, unconstitutional
behavior.'” (211) Judge Kozinski noted that section 2 might
rest on firmer constitutional grounds in this case if either intentional
discrimination existed in the criminal justice system or if a state
could show a history of discriminatory voting practices, but that
relying on mere statistical disparities in the criminal justice system
to make out a section 2 claim was “overinclusive.” (212) A
thorough discussion of the constitutionality of amended section 2 is out
of the scope of this Note, (213) but Judge Kozinski’s dissent lays
out a strong case that the Supreme Court should resolve this issue.
For the purposes of this Note, however, Judge Kozinski attempts to
draw a distinction between literacy tests and felon disenfranchisement
provisions because “‘[t]he legislative history of the 1970
Amendments [banning all literacy tests] contains substantial information
upon which Congress could have based a finding that the use of literacy
tests … deny[] the vote to racial minorities,”‘ (214)
whereas Congress had no similar evidence concerning felon
disenfranchisement laws. (215) Yet Judge Kozinski mischaracterizes the
evidence in front of Congress in 1970, just eleven years after the Court
validated the literacy test used in North Carolina, a partially covered
state under the Voting Rights Act. Based on the results of the
prohibition of literacy tests in the few “covered
jurisdictions” (216) that triggered the Voting Rights Act in 1965,
Congress banned all such tests across the country. Such a measure was
hardly “congruent and proportional” in the modern
understanding of the phrase, as Congress did not have evidence that
every state’s literacy test was discriminatory. Nonetheless, the
Supreme Court validated that prophylactic congressional act as an
appropriate remedy because of the “long history of the
discriminatory use of literacy tests to disfranchise voters on account
of their race.” (217) Similarly, felon disenfranchisement laws have
a long history of existence with similar discriminatory origins; in
fact, Judge Kozinski uses that long history of existence as a reason why
felon disenfranchisement laws are different than literacy tests. (218)
Further, felon disenfranchisement laws in Alabama (219) and Florida
(220) have been banned by courts because of their discriminatory
origins. Considering that the Voting Rights Act only covered six entire
states when it was originally passed, the history of felon
disenfranchisement laws cited by Judge Kozinski may be sufficient to put
these laws within the purview of the Act.
Though it had evidence regarding the discrimination inherent in
literacy tests when it amended section 2 in 1982, Congress did not have
this type of evidence in front of it with regard to felon
disenfranchisement, nor was amended section 2 designed to remedy the
discriminatory use of felon disenfranchisement. As a result, a
court’s challenge is different in considering felon
disenfranchisement provisions than it was in considering literacy tests.
Whereas in South Carolina v. Katzenbach (221) and Oregon v. Mitchell (222) the Court was charged with determining whether a statute was an
appropriate enforcement of a delegated power, courts today addressing
felon disenfranchisement must determine whether a legal analysis that
was not designed to remedy the practice can still be used to do so under
a more general disparate impact standard. Ultimately, this approach
muddies the use of the Voting Rights Act to challenge felon
disenfranchisement based on the racially disparate impact of the
criminal justice system. Nonetheless, it is particularly worth noting
the similarities between the path literacy tests followed through the
courts before Congress eliminated the practice and the one felon
disenfranchisement laws currently follow. Amended section 2 of the
Voting Rights Act expires in 2007, when Congress will be forced to
address this issue, if it hasn’t done so already.
2. The Equal Protection Clause
Johnson v. Bush also resurrected another legal avenue–the Equal
Protection Clause–that essentially had been left dormant with regard to
felon disenfranchisement since 1985. In Richardson v. Ramirez, the Court
sidestepped a standard equal protection analysis under Section 1 of the
Fourteenth Amendment by instead pointing to Section 2 of that Amendment,
(223) stating that “the exclusion of felons from the vote has an
affirmative sanction in Section 2 of the Fourteenth Amendment.”
(224) The Court asserted that Section 1 “could not have been meant
to bar outright a form of disenfranchisement which was expressly
exempted from the less drastic sanction of reduced representation which
section 2 imposed for other forms of disenfranchisement.” (225)
This decision prompted severe criticism in its immediate aftermath as an
incorrect reading of the Fourteenth Amendment, (226) and it continues to
elicit disapproving analysis from commentators and academics today.
(227) In dissent, Justice Thurgood Marshall asserted that Section 2 does
not eliminate the need for a standard Section 1 equal protection
analysis. He noted that “Section 2 provides a special
remedy–reduced representation–to cure a particular form of electoral
abuse–the disenfranchisement of Negroes.” (228) Fletcher calls
this contradiction in the Richardson decision the “paradox of
disenfranchisement.” (229) In Fletcher’s eyes, “[a]
constitutional amendment was enacted to support the enfranchisement of
emancipated slaves…. [Yet] [b]ecause patterns of law enforcement have
changed over the years … a constitutional provision designed in 1868
to improve the political representation of blacks has turned out in the
1990s to have precisely the opposite effect.” (230) Nevertheless,
Richardson has effectively removed felon disenfranchisement from
standard equal protection analysis.
In 1985, in Hunter v. Underwood, (231) the Court cut a narrow
sliver from Richardson by holding that Alabama’s felon
disenfranchisement provision was originally crafted with a
discriminatory purpose and was therefore unconstitutional. The Court
relied on extensive historical research showing that Alabama’s
“moral turpitude” clause was intended to discriminate against
blacks, and unlike most states, Alabama had never revisited this
provision. (232) Yet Hunter has been interpreted as a narrow exception
to Richardson, and subsequent decisions upholding felon
disenfranchisement laws generally interpret Hunter “to focus on
intentional discrimination, as evidence that states may disenfranchise
felons in any way they desire so long as they do not act on the basis of
race.” (233)
The Eleventh Circuit’s Johnson decision expanded the doctrinal
framework of Hunter to include states that have reenacted felon
disenfranchisement provisions but have not erased the original
discriminatory intent of those provisions. (234) If the Johnson
court’s opinion survives additional appeals, the rationale still
does not provide for a sweeping prohibition of felon disenfranchisement
laws. Rather, this equal protection analysis requires an in-depth,
state-by-state analysis of the history of felon disenfranchisement laws
and subsequent reenactments, in order to determine a very fact-specific
question.
Indeed, the intent requirement under current equal protection law,
as well as the Court’s interpretation in Richardson, poses
significant obstacles to pursuing this sort of legal challenge to felon
disenfranchisement. Under the Equal Protection Clause, there is a
potential factual argument that relies on showing that felon
disenfranchisement laws are part of a continuum of political exclusion.
To do this, one must provide a historical analysis such as the one in
Hunter, or perhaps one can show that felon disenfranchisement is a
direct descendant of literacy tests, white primaries, and other tools of
black disenfranchisement. While this may be a plausible goal in states
such as Alabama and Florida, it does not provide a viable means to
challenge felon disenfranchisement laws in states such as Washington.
While the current interpretation of the Equal Protection Clause may
block a constitutional attack on felon disenfranchisement under the
intent standard or under Richardson, this nation’s legal system and
democratic structure embrace basic antidiscrimination norms and values
that today’s felon disenfranchisement laws violate. Aside from
amended section 2 and its express sanction of a disparate impact
inquiry, other areas of our legal system endorse a disparate impact
standard. For example, Title VII of the Civil Rights Act of 1964 has
consistently permitted the use of claims of disparate impact to root out
subtle forms of discrimination in employment, (235) as has the Americans
with Disabilities Act. (236) This Term, the Court will address whether
the Age Discrimination and Employment Act (ADEA) allows for disparate
impact claims. (237)
Moreover, the objective of disparate impact claims within the
antidiscrimination scheme is to provide a remedy against facially
neutral provisions that are implemented or administered with a
discriminatory effect. Because it may be too difficult to see into the
minds of individuals to determine if they acted with discriminatory
intent, and because the intent standard can be “unnecessarily
divisive” by asserting claims of racism “on the part of
individual officials or entire communities,” (238) a disparate
impact standard is particularly appropriate for facially neutral
provisions that involve race. Viewed in the relevant social and
political context, a pervasive discriminatory effect can rise to the
level of a discriminatory purpose. Congress and the Supreme Court
determined that the literacy test regime escalated to a violation of the
Fourteenth Amendment. As felon disenfranchisement laws follow a path
similar to literacy tests, the same conclusion could be reached
regarding those provisions.
3. Other alternatives
Eventually, a congressional act eliminated literacy tests. That
would also be an effective route for felon disenfranchisement opponents
to pursue. In recent years, several attempts have been made in Congress
to pass legislation that would restore the vote to ex-offenders, but
none has passed and most have not even advanced beyond committee
consideration. (239) These efforts preceded the Farrakhan and Johnson
decisions, however, so it has yet to be determined if and how Congress
will act now that some courts have provided judicial credence to
arguments against felon disenfranchisement. Although there are some
questions as to whether there currently exists a legal remedy for the
discriminatory effect of felon disenfranchisement laws, there is little
doubt that, given the availability of the evidence referred to in this
Note, Congress would have the power to enact a sweeping remedy under the
Enforcement Clause of the Fourteenth Amendment. Politically, this issue
has polarized the national parties for the same reasons that the Uggen
and Manza study discussed above cited: Republicans benefit directly from
the disproportionate impact of felon enfranchisement laws because the
majority of disenfranchised felons and ex-felons are minorities and
would likely vote for the Democratic Party. But Democrats are reluctant
to push this issue because they run the risk of appearing “soft on
crime” if they are portrayed as supporting felons and ex-felons. As
a result, this issue likely will not surface on the congressional floor
while a Republican Congress is in power.
In the wake of the problems in Florida surrounding the 2000
election, Congress did pass a federal election reform law in 2002,
further evidence that the issue of voting rights is within the purview
of the federal legislature. (240) Among other things, the Help America
Vote Act of 2002 (HAVA) provides more funding for states to upgrade
their voting mechanisms, improves accessibility for the disabled and
voters with limited English proficiency, requires states to create a
computerized voter registration list, affords all voters a provisional
ballot if there are complications on Election Day, and requires
heightened identification authorization. (241) If implemented properly
by the states (which are largely responsible for the implementation),
HAVA promises to have a sweeping impact on voting in America. (242) HAVA
illustrates that enough public outcry and general concern about voting
matters can result in a federal law to remedy problems that
exist–problems, of course, that include felon disenfranchisement.
Nonetheless, voting regulation traditionally has been a state
issue, and state legislatures present the ideal vehicles through which
to prohibit felon disenfranchisement laws. Indeed, state legislatures
are, for the most part, responsible for reducing in recent years the
number of states that disenfranchise ex-felons. (243) This
country’s history, however, concerning individual states promoting
laws favoring civil rights–and inherently, felon disenfranchisement is
a civil rights issue–does not lend much hope to this path for the
remaining states with felon disenfranchisement laws. Therefore,
opponents of felon disenfranchisement laws cannot rest on the hope that
the individual states with such laws will overturn them.
CONCLUSION
Undoubtedly, there are significant differences between literacy
tests and felon disenfranchisement laws. Literacy tests directly
prevented access to the ballot box, whereas felon disenfranchisement
laws incorporate an additional step between an individual and the voting
booth. And that step is an important one: conviction of a crime. African
Americans never chose to attend segregated schools, or to suffer from
discriminatory implementation of the literacy tests, whereas anyone
forbidden from voting under felon disenfranchisement laws chose, in some
sense, to be subjected to those laws. (244) And literacy tests
disenfranchised proportionally more minorities than felon
disenfranchisement laws, even if the absolute numbers are more equal.
Furthermore, the Supreme Court has interpreted the Fourteenth Amendment
to include an affirmative sanction of felon disenfranchisement, whereas
it initially only upheld literacy tests under rational basis review.
Nevertheless, the striking similarities between these two mechanisms of
disenfranchisement–including their historical origins, a reliance on
other discriminatory social practices, racially biased implementation,
and the justifications offered in support of each mechanism-help to
provide a different framework through which to view felon
disenfranchisement.
Moreover, the course that literacy tests traced toward prohibition
resembles the one that felon disenfranchisement laws currently follow:
Initially, the Supreme Court validated the race-neutral justifications
for such tests before mounting evidence of a racially discriminatory
effect prompted lower courts to prohibit specific uses of the tests.
Congress responded to the increasing evidence of discrimination by
enacting the Voting Rights Act to prohibit the practice on a wider
scale, and the Supreme Court validated that prohibition for the same
reasons. With respect to felon disenfranchisement, the Supreme Court
validated the practice before the racially discriminatory effect of
these provisions became apparent. Recently, lower courts have
invalidated felon disenfranchisement laws because of their intersection
with the criminal justice system, which submits minorities to a racially
disparate impact. The Supreme Court recently declined to address this
issue, but it may get another opportunity after the Eleventh Circuit,
sitting en banc, decides Johnson v. Bush. State legislatures are looking
more closely at these provisions, and as the public outcry against felon
disenfranchisement–particularly for ex-felons grows, Congress may
revisit the issue.
This notable continuity from literacy tests to felon
disenfranchisement not only exists in a substantive fashion but in a
temporal one as well. Although there is no direct evidence that felon
disenfranchisement has been employed to continue what literacy tests
could no longer do after the Voting Rights Act, the effect is similar.
Just as literacy tests replaced white primaries as a technique to
exclude minorities from the political process, criminal
disenfranchisement, buoyed by the incarceration boom and “tough on
crime” policies, has replaced literacy tests in the same manner.
Even if one believes that the justifications are valid and legitimate
for one or both practices, there is no denying that a substantive and
temporal continuity exists between the two voting restrictions.
Despite the justifications for literacy tests in the 1950s and
1960s, Americans today generally accept that they were implemented with
a discriminatory purpose to politically exclude racial minorities during
that time. Now, proponents of felon disenfranchisement laws must ask
themselves whether the justifications for these provisions will pass
muster forty years from now. As long as these justifications center
around thinly veiled racial stereotypes such as inferior intelligence in
the literacy test era and criminality in the felon disenfranchisement
era–and the effect of these provisions is to prevent individuals
charged with resuming a normal, law-abiding life from participating in
the fundamental democratic enterprise of voting, the answer is no.
(1.) Reynolds v. Sims, 377 U.S. 533, 562 (1964).
(2.) 377 U.S. 533.
(3.) G. EDWARD WHITE, EARL WARREN: A PUBLIC LIFE 337 (1982).
(4.) Christopher Uggen & Jeff Manza, Democratic Contraction?
Political Consequences of Felon Disenfranchisement in the United States,
67 AM. SOC. REV. 777, 782 (2002).
(5.) McLaughlin v. City of Canton, 947 F. Supp. 954, 971 (S.D.
Miss. 1995). The court continued:
When brought beneath [disenfranchisement’s] axe, the
disenfranchised is severed from the body politic and condemned
to the lowest form of citizenship, where voiceless at the ballot
box … the disinherited must sit idly by while others elect his
civic leaders and while others choose the fiscal and governmental
responsibilities which will govern him and his family. Such a
shadowy form of citizenship must not be imposed lightly….
Id.
(6.) Gabriel J. Chin, Race, the War on Drugs, and the Collateral
Consequences of Criminal Conviction, 6 J. GENDER RACE & JUST. 253,
255 (2002).
(7.) See generally id.; Nora V. Demleitner, Continuing Payment on
One’s Debt to Society: The German Model of Felon Disenfranchisement
as an Alternative, 84 MINN. L. REV. 753 (2000); Alex C. Ewald,
“Civil Death”: The Ideological Paradox of Criminal
Disenfranchisement Law in the United States, 2002 WIS. L. REV. 1045;
Pamela S. Karlan, Ballots and Bullets: The Exceptional History of the
Right to Vote, 71 U. CIN. L. REV. 1345 (2003) [hereinafter Karlan,
Ballots and Bullets]; Pamela S. Karlan, Convictions and Doubts:
Retribution, Representation, and the Debate over Felon
Disenfranchisement, 56 STAN. L. REV. 1147 (2004) [hereinafter Karlan,
Convictions and Doubts]; Marc Mauer, Disenfranchisement of Felons: The
Modern-Day Voting Rights Challenge, 2002 C.R.J. 40; J. Whyatt Mondesire,
Felon Disenfranchisement. The Modern Day Poll Tax, 10 TEMP. POL. &
CIV. RTS. L. REV. 435 (2001); Afi S. Johnson-Parris, Note, Felon
Disenfranchisement: The Unconscionable Social Contract Breached, 89 VA.
L. REV. 109 (2003); Note, One Person, No Vote: The Law of Felon
Disenfranchisement, 115 HARV. L. REV. 1939 (2002) [hereinafter One
Person, No Vote]; Elena Saxonhouse, Note, Unequal Protection: Comparing
Former Felon “s Challenges to Disenfranchisement and Employment
Discrimination, 56 STAN. L. REV. 1597 (2004).
(8.) Voting Rights Act of 1965 [section] 4, 42 U.S.C. [section]
1973aa (2000): see infra Part II.B. 1.
(9.) See, e.g., Watson v. Fort Worth Bank & Trust, 487 U.S.
977,987 (1988) (noting that “the necessary premise of the disparate
impact approach is that some employment practices, adopted without a
deliberately discriminatory motive, may in operation be functionally
equivalent to intentional discrimination”).
(10.) See SAMUEL ISSACHAROFF ET AL., THE LAW OF DEMOCRACY: LEGAL
STRUCTURE OF THE POLITICAL PROCESS 101 (2d ed. 2002). South Carolina
followed Mississippi in 1895, as did Louisiana in 1898, Alabama in 1901,
Virginia in 1901-02, and Oklahoma in 1910. By amendment, North Carolina
adopted similar disenfranchising provisions in 1900 and Georgia did so
in 1908. C. VANN WOODWARD, ORIGINS OF THE NEW SOUTH, 1877-1913, at 321
(1971). For greater insight into the remaking of the South during and
following Reconstruction, see ERIC FONER, RECONSTRUCTION: AMERICA’S
UNFINISHED REVOLUTION, 1863-1877 (1988); J. MORGAN KOUSSER, THE SHAPING
OF SOUTHERN POLITICS (1974); WOODWARD, supra.
(11.) WOODWARD, supra note 10, at 333. Glass also said, “This
plan of popular suffrage will eliminate the darkey as a political factor
in this State in less than five years, so that in no single county of
the Commonwealth will there be the least concern felt for the complete
supremacy of the white race in the affairs of government.” Ewald,
supra note 7, at 1090-91.
(12.) See ALEXANDER KEYSSAR, THE RIGHT TO VOTE: THE CONTESTED
HISTORY OF DEMOCRACY IN THE UNITED STATES 111 (2000).
(13.) See ISSACHAROFF ET AL., supra note 10, at 101.
(14.) See KEYSSAR, supra note 12, at 142.
(15.) Id. at 112.
(16.) H.R. REP. No. 89-439 (1965) (statement of the joint views of
twelve members of the Judiciary Committee), reprinted in 1965
U.S.C.C.A.N. 2540.
(17.) WOODWARD, supra note 10, at 331-32.
(18.) Id. at 332.
(19.) KEYSSAR, supra note 12, at 111; WOODWARD, supra note 10, at
332.
(20.) WOODWARD, supra note 10, at 334.
(21.) KEYSSAR, supra note 12, at 112. The “understanding
clause” permitted illiterates to register and vote if they could
“understand” any section of the state constitution read to
them, “or give a reasonable interpretation thereof.” WOODWARD,
supra note 10, at 332.
(22.) In 1915, the grandfather clause became the first
disenfranchising mechanism struck down by the Supreme Court. See Guinn
v. United States, 238 U.S. 347 (1915) (holding that the grandfather
exemption from the literacy test in the Oklahoma Constitution violated
the Fifteenth Amendment because it was a condition for voting based on
race).
(23.) H.R. REP. No. 89-439, at 12 (1965) (statement of the joint
views of twelve members of the Judiciary Committee), reprinted in 1965
U.S.C.C.A.N. 2540, 2543.
(24.) ISSACHAROFF ET AL., supra note 10, at 118 (citing United
States v. Louisiana, 225 F. Supp. 353 (E.D. La. 1963), aff’d. 380
U.S. 145 (1965)). At the time, Southern politics were dominated by the
Democratic Party, which increased the importance of the Democratic
primary and reduced the importance of the actual election. Because
blacks were excluded from the Democratic primary, they were effectively
excluded from the entire political process. Id.
(25.) 321 U.S. 649 (1944).
(26.) 345 U.S. 461 (1953).
(27.) See ISSACHAROFF ET AL., supra note 10, at 117-18.
(28.) See KEYSSAR, supra note 12, at 228.
(29.) See Mondesire, supra note 7, at 439. The number of registered
black voters–1.4 million–is a particularly relevant number because it
is the same as the number of disenfranchised black men documented in the
first widespread study on felon disenfranchisement. See Jamie Fellner
& Marc Mauer, Losing the Vote: The Impact of Felon
Disenfranchisement Laws in the United States 1 (1998), at
http://www.sentencingproject.org/pdfs/9080.pdf (last visited Nov. 2,
2004).
(30.) Pub. L. No. 89-110, 79 Stat. 445 (codified as amended at 42
U.S.C. [subsection] 1971, 1973 to 1973bb-1 (2000)).
(31.) Andrew L. Shapiro, Challenging Criminal Disenfranchisement
Under the Voting Rights Act: A New Strategy, 103 YALE L.J. 537, 538
(1993).
(32.) See H.R. REP. No. 91-397, at 4 (1970) (citing U.S.
COMM’N ON CIVIL RIGHTS, POLITICAL PARTICIPATION 12-13 (1968)),
reprinted in 1970 U.S.C.C.A.N 3277. 3280. One triggering condition of
the Voting Rights Act was that nonwhite political participation in the
state must have been less than 50% in any election on November 1, 1964.
See infra note 67. Numerous counties in North Carolina also triggered
the Voting Rights Act, but the state was not covered as a whole. The
same report estimated that 46.8% of North Carolina nonwhites were
registered to vote prior to the enactment of the Voting Rights Act. Id.
at 4 (citing U.S. COMM’N ON CIVIL RIGHTS, supra, at 12-13).
(33.) See South Carolina v. Katzenbach, 383 U.S. 301, 311-12 (1966)
(listing Supreme Court jurisprudence striking down the grandfather
clause, procedural hurdles, white primaries, registration challenges,
and racial gerrymandering).
(34.) Primarily as a result of these circumstances, Congress
enacted section 4 of the Voting Rights Act, which eliminated all
“tests and devices” that restricted voting registration. S.
REP. NO. 94-295, at 22 (1975), reprinted in 1975 U.S.C.C.A.N. 774, 788
(“For both of these reasons, then–the overwhelming evidence of
abuse in administering these tests, and the sorry history of educational
neglect in these areas–Congress felt it necessary to ban all tests or
devices as prerequisites to voting….”); see also infra Part I.D.
(35.) Brown v. Board of Education, 347 U.S. 493, 495 (1954).
(36.) Id. at 494.
(37.) See Oregon v. Mitchell, 400 U.S. 112, 133 (1970) (“There
is substantial, if not overwhelming, evidence … that it is a denial of
equal protection to condition the political participation of children
educated in a dual school system upon their educational
achievement.”).
(38.) 395 U.S. 285, 291 (1965). The Court continued:
We conclude that … it is appropriate for a court to consider
whether a literacy or educational requirement has the ‘effect of
denying the right to vote on account of race or color’ because the
State or subdivision which seeks to impose the requirement has
maintained separate and inferior schools for its Negro residents
who are now of voting age.
Id. at 293.
(39.) S. REV. NO. 94-295, at 34.
(40.) Mitchell, 400 U.S. at 233.
(41.) Recall Theodore Bilbo’s quotation from the text
accompanying note 28, supra. Literacy tests alone would have
disproportionately affected blacks, but an objective implementation also
would have reduced the number of whites with access to the ballot box.
(42.) According to a Louisiana district court, “[t]he
registrar’s whim alone determine[d] which applicants [would] be
tested.” United States v. Louisiana, 225 F. Supp. 353, 382 (E.D.
La. 1963), aff’d, 380 U.S. 145 (1965). White applicants often were
not even tested, or given an oral test that could be answered by short
phrases such as “freedom of speech” or “freedom of
religion,” and that precluded any check on the registrar’s
decisions. See H.R. REP. No. 89-439, at 12 (1965) (statement of the
joint views of twelve members of the Judiciary Committee), reprinted in
1965 U.S.C.C.A.N. 2540, 2544 (“These cases demonstrate that
frequently whites have not been subjected to these tests at all; in many
places they are only applied to Negroes. Indeed, Justice Department
lawsuits have revealed that large numbers of illiterate whites are
registered in many different places in States affected by the
bill.”).
(43.) Louisiana, 225 F. Supp. at 383 (“As in the selection
process, gross abuses of discretion appear in the evaluation of the
interpretations.”). In South Carolina v. Katzenbach, the Supreme
Court noted that white applicants for registration “have been given
easy versions, have received extensive help from voting officials, and
have been registered despite serious errors in their answers. Negroes,
on the other hand, have typically been required to pass difficult
versions of all the tests, without any outside assistance and without
the slightest error.” 383 U.S. 301, 312 (1966).
(44.) Louisiana, 225 F. Supp. at 383.
(45.) According to the legislative history of the Voting Rights Act
of 1965, “[b]etween May 1962 and November 1963, 445 Negro
applications were rejected; 175 had been filed by Negroes with at least
12 years of education, including 21 with 16 years and one with a
master’s degree.” H.R. REP. NO. 89-439, at 11.
(46.) See WOODWARD, supra note 10, at 347.
(47.) I.A. NEWBY, JIM CROW’S DEFENSE: ANTI-NEGRO THOUGHT IN
AMERICA, 1900-1930, at 152 (1965).
(48.) See KEYSSAR, supra note 12, at 142. Literacy tests reduced
the “ignorance” of the electorate by eliminating blacks, and
it helped to “weed out sizeable numbers of poor immigrant
voters.” A significant number of states enacted literacy tests to
prevent immigrants from voting, not just blacks. Id. at 144-45. In 1924,
Oregon became the last state to institute any kind of literacy test for
voting, and no state repealed its literacy test in the decades following
World War 1. In the 1940s, eighteen states had some sort of literacy
test for voting. Id. at 227. As noted above, however, the most dramatic
effect of the literacy test occurred in the South, where segregated
education and discriminatory implementation combined to disenfranchise a
majority of blacks.
(49.) For a more detailed analysis of the republican and liberal
underpinnings of black disenfranchisement, see generally Ewald, supra
note 7.
(50.) See South Carolina v. Katzenbach, 383 U.S. 301, 311 n.9
(1966).
(51.) See Lawrence D. Bobo & Ryan A. Smith, From Jim Crow
Racism to Laissez-Faire Racism: The Transformation of Racial Attitudes,
in BEYOND PLURALISM: THE CONCEPTION OF GROUPS AND GROUP IDENTITIES IN
AMERICA 198 (Wendy F. Katkin et al. eds., 1998). In 1942, 53% of white
Americans believed blacks to be less intelligent. Four years later, only
43% were of that opinion. And by 1956, only 20% thought so. Id. World
War II is often viewed as a catalyst for the civil rights movement,
because the United States was fighting abroad to promote democracy
against racist ideologies, yet its own domestic policy permitted
egregious race discrimination. Furthermore, in 1942, there were one
million blacks in the military. This prompted Congress to pass the
Soldier Voting Act, the first voting rights act since Reconstruction,
which required local jurisdictions to count the absentee ballots
afforded to soldiers and sailors, white and nonwhite. See Soldier Voting
Act, Pub. L. No. 78-277, 58 Stat. 136 (1944) (repealed 1955); Karlan,
Ballots and Bullets, supra note 7, at 135-455.
(52.) See NEWBY, supra note 47, at 195.
(53.) Id.
(54.) Id.
(55.) Barbara Jeanne Fields, Slavery, Race and Ideology, in the
United States of America, 181 NEW LEFT REV. 95, 96 (1990).
(56.) 360 U.S. 45 (1959).
(57.) Id. at 51.
(58.) Id. at 51-52.
(59.) Id. at 51.
(60.) In Reynolds v. Sims, the Court established that
the right of suffrage is a fundamental matter in a free and
democratic society. Especially since the right to exercise the
franchise in a free and unimpaired manner is preservative of other
basic civil and political rights, any alleged infringement of the
right of citizens to vote must be carefully and meticulously
scrutinized.
377 U.S. 533, 561-62 (1964).
(61.) See Ewald, supra note 7, at 1067 n.86; see also Dunn v.
Blumstein, 405 U.S. 330 (1972) (establishing that restrictions on the
right to vote must be narrowly tailored toward a compelling state
interest).
(62.) The Court was fully aware of the racial discrimination
connected to literacy tests. In 1949, it affirmed a district
court’s decision invalidating Alabama’s literacy test as
facially unconstitutional. Davis v. Schnell, 81 F. Supp. 872 (S.D.
Ala.), aff’d, 336 U.S. 943 (1949). In Lassiter, the Court
distinguished Alabama’s test from North Carolina’s, which
required that the prospective voter “‘be able to read and
write any section of the Constitution of North Carolina in the English
language.’ That seems to us to be one fair way of determining
whether a person is literate, not a calculated scheme to lay springs for
the citizen.” 360 U.S. at 53-54.
(63.) See South Carolina v. Katzenbach, 383 U.S. 301, 312 (1966)
(“Discriminatory administration of voting qualifications has been
found in all eight Alabama cases, in all Louisiana cases, and in all
nine Mississippi cases which have gone to final judgment.”).
(64.) The Fifteenth Amendment states, in part, “The right of
citizens of the United States to vote shall not be denied or abridged by
the United States or by any State on account of race, color, or previous
condition of servitude.” U.S. CONST. amend. XV, [section] 1.
(65.) Voting Rights Act of 1965 [section] 4, 42 U.S.C. [section]
1973b(1) (2000). A “test or device” was defined to mean
any requirement that a person as a prerequisite for voting or
registration for voting (1) demonstrate the ability to read,
write, understand, or interpret any matter, (2) demonstrate any
educational achievement or his knowledge of any particular
subject, (3) possess good moral character, or (4) prove his
qualifications by the voucher of registered voters or members of
any other class.
Voting Rights Act of 1965 [section] 4, 42 U.S.C. [section]
1973(9)(c) (2000).
(66.) H.R. REP. NO. 89-439, at 13 (1965) (statement of the joint
views of twelve members of the Judiciary Committee), reprinted in 1965
U.S.C.C.A.N. 2540, 2544 (emphasis added); see also Katzenbach, 383 U.S.
at 333-34.
(67.) Voting Rights Act of 1965 4(b), 42 U.S.C. 1973b(b). The full
text reads:
The provisions of subsection (a) of this section shall apply in
any State or in any political subdivision of a State which (1) the
Attorney General determines maintained on November 1, 1964, any
test or device, and with respect to which (2) the Director of the
Census determines that less than 50 per centum of the persons of
voting age residing therein were registered on November 1, 1964,
or that less than 50 per centum of such persons voted in the
presidential election of November 1964.
(68.) Voting Rights Act of 1965 6, 42 U.S.C. [section] 1973d
(2000).
(69.) See U.S. COMM’N ON CIVIL RIGHTS, supra note 32.
(70.) Voting Rights Act Amendments of 1970 [section] 6. Pub. L. No.
91-285, 84 Stat. 314, 315 (1970) (codified as amended at 42 U.S.C.
[section] 1973aa (2000)).
(71.) Voting Rights Act Amendments of 1975, Pub. L. No. 94-73, sec.
102(1), 89 Stat. 400, 400 (1975).
(72.) H.R. REP. NO. 91-397. at 9, reprinted in 1970 U.S.C.C.A.N
3277, 3285.
(73.) See South Carolina v. Katzenbach, 383 U.S. 301 (1966); see
also Oregon v. Mitchell, 400 U.S. 112 (1970).
(74.) The literacy test was thought to be the last of the
disenfranchising mechanisms prevalent after Reconstruction. At the time,
felon disenfranchisement was not considered a method of political
exclusion.
(75.) See KEYSSAR, supra note 12, at 264.
(76.) Bobo and Smith use this term to describe the short period
from the late 1950s to the early 1960s when the Supreme Court, Congress,
and the White House appeared to act in unison to protect basic rights of
citizenship in this country. See Bobo & Smith, supra note 51, at
183.
(77.) See Lassiter v. Northampton County Bd. of Elections, 360 U.S.
45, 51 (1959) (“Residence requirements, age, previous criminal
record … are obvious examples indicating factors which a State may
take into consideration in determining the qualifications of
voters.”) (citing Davis v. Beason, 133 U.S. 333, 345-47 (1890)).
The Voting Rights Act did not address felon disenfranchisement.
(78.) See Angela Behrens et al., Ballot Manipulation and the
“Menace of Negro Domination”: Racial Threat and Felon
Disenfranchisement in the United States, 1850-2002, 109 AM. J. SOC. 559,
563 (2003).
(79.) Id. at 564-65.
(80.) Id.; see also Christopher Uggen et al., Felon Voting Rights
and the Disenfranchisement of African-Americans, SOULS, Fall 2003, at
47, 48 (noting that eleven states passed felon disenfranchisement laws
for the first time during Reconstruction).
(81.) See Shapiro, supra note 31. at 538.
(82.) See Behrens et al., supra note 78, at 598.
(83.) Id.
(84.) Shapiro, supra note 31, at 538 (quoting J. Morgan Kousser,
The Undermining of the First Reconstruction: Lessons for the Second, in
MINORITY VOTE DILUTION 27, 35 (Chandler Davidson ed., 1984)).
(85.) See Uggen et al., supra note 80, at 3-4.
(86.) NEWBY, supra note 47, at 178.
(87.) Ewald, supra note 7, at 1091. Mississippi has a particularly
illustrious history of felon disenfranchisement. In 1896, the
Mississippi Supreme Court listed the following crimes as resulting in
disenfranchisement: “bribery, burglary, theft, arson, obtaining
money or goods under false pretenses, perjury, forgery, embezzlement or
bigamy.” Ratliff v. Beale, 20 So. 865, 867 (Miss. 1896). Rape and
murder were not added until the disenfranchising provision was reenacted
in 1968; the Fifth Circuit determined that this reconsideration of the
statute at a later point purged the original racially discriminatory
intent involved in selecting certain crimes that triggered
disenfranchisement. Cotton v. Fordice, 157 F.3d 388, 392 (5th Cir.
1998). Mississippi still enumerates certain crimes that result in
disenfranchisement, yet voter fraud is not one of them. MISS. CONST.
art. XII, [section] 241. For more on Mississippi’s history of felon
disenfranchisement, see Gabriel J. Chin, Rehabilitating Unconstitutional
Statutes: An Analysis of Cotton v. Fordice, 157 F.3d 388 (5th Cir.
1998), 71 U. CIN. L. REV. 421 (2002).
(88.) Ewald, supra note 7, at 1092 (citing PAUL LEWINSON, RACE,
CLASS, AND PARTY: A HISTORY OF NEGRO SUFFRAGE AND WHITE POLITICS IN THE
SOUTH 81 (1932)). John Fielding Burns, an Alabama judge from a
predominantly black district who was largely responsible for enumerating
crimes traditionally committed by blacks, estimated that the
wife-beating provision alone would disqualify two-thirds of black
voters. Id. at 1093.
(89.) Id. at 1094. In Hunter v. Underwood, the U.S. Supreme Court
struck down Alabama’s provision disenfranchising individuals
convicted of crimes of moral turpitude, on the ground that the original
enactment was intended to discriminate against black prospective voters
by “establish[ing] white supremacy.” 471 U.S. 222, 229 (1985).
(90.) Karlan, Convictions and Doubts, supra note 7, at 1156 n.45
(noting that the United States is now the “world leader” in
its percentage of prisoners, recently surpassing Russia).
(91.) Uggen & Manza, supra note 4, at 781.
(92.) Id. The number of parolees and probationers quadrupled from
1976 to 2000. Id.
(93.) Jeremy Travis, Invisible Punishment: An Instrument of Social
Exclusion, in INVISIBLE PUNISHMENT: THE COLLATERAL CONSEQUENCES OF MASS
IMPRISONMENT 15, 18 (Marc Mauer & Meda Chesney-Lind eds., 2002).
Thirteen million were convicted of felonies, more than six percent of
the adult population.
(94.) Uggen & Manza, supra note 4, at 778. The U.S.
incarceration rate is more than 6.5 times larger than the rate in
Canada, more than 7 times greater than the rate in Germany, and almost
16 times greater than that of Japan. Id.
(95.) See Leslie Acoca & Myrna S. Raeder, Severing Family
Ties.” The Plight of Nonviolent Female Offenders and Their
Children, 11 STAN. L. & POL’Y REV. 133, 133 (1999).
(96.) See Mauer, supra note 7, at 41.
(97.) See MARC MAUER, RACE TO INCARCERATE 143-45 (1999). One
explanation for the apparent incongruence in the number of drug arrests
and drug offenses is explained by the fact that every drug
arrestee’s chances of receiving a prison term increased by 447
percent between t980 and 1992. Id. at 151.
(98.) Id. at 145.
(99.) Id. at 152. At the state level, the number of drug offenders
in prison over that same time increased by 478%, compared to a rise of
119% for all offenses. Id.
(100.) Id. at 118. According to the Census Bureau, African
Americans made up only 12.9% of the population in 2000, yet they
comprised 46.2% of those incarcerated. See Chin, supra note 6, at 262.
Hispanics are also disproportionately affected by the criminal justice
system, but this Note concentrates primarily on African Americans in
order to more effectively draw comparisons with literacy tests in the
Jim Crow era. Moreover, there is far less data on Hispanics than on
African Americans.
(101.) Fellner & Mauer, supra note 29, at 12. In the early
1990s, for example, 63% of all prisoners in Illinois were black
(compared to 15% of the population); roughly 80% of New York inmates
were minorities. KEYSSAR, supra note 12, at 307.
(102.) MAUER, supra note 97, at 124-25.
(103.) See, e.g., Alfred Blumstein, Racial Disproportionality of
U.S. Prison Populations Revisited, 64 COLO. L. REV. 743 (1993).
(104.) MAUER, supra note 97, at 127.
(105.) Id. at 138.
(106.) Chin, supra note 6, at 266.
(107.) KEYSSAR, supra note 12, at 307. For property offenses and
misdemeanors, for example, minorities were notably more likely to
receive jail terms, resulting in an additional 4000 sentences per year
for minorities in New York state. See MAUER, supra note 97, at 131.
(108.) MAUER, supra note 97, at 130. The Supreme Court has cited
the Baldus study approvingly, yet refused to overturn the death penalty
on equal protection grounds, ruling that an individual must show that
his particular case was subject to racial bias under the Equal
Protection Clause. See McCleskey v. Kemp, 481 U.S. 279 (1987).
(109.) Chin, supra note 6, at 269-70.
(110.) MAUER, supra note 97, at 131.
(111.) Mauer, supra note 7, at 41.
(112.) Fellner & Mauer, supra note 29, at 13.
(113.) MAUER, supra note 97, at 152.
(114.) Id. at 147.
(115.) Id. at 145, 149.
(116.) Chin, supra note 6, at 254. Chin also notes that drug crimes
are associated with the greatest number and severity of collateral
consequences. He cites the Bureau of Justice Assistances, which lists
more than seventy-five benefits potentially affected, including
federally funded health care programs, housing, food stamps, education
aid, and employment in a broad array of industries. Id. at 259-60.
(117.) DAVID F. MUSTO, THE AMERICAN DISEASE: ORIGINS OF NARCOTIC CONTROL 294-295 (3d ed., Oxford Univ. Press 1999), cited in Chin, supra
note 6, at 257.
(118.) See MAUER, supra note 97, at 106.
(119.) See United States v. Armstrong, 517 U.S. 456, 479-80 (1996)
(Stevens, J., dissenting). In this case, the majority determined that in
order to establish an entitlement for discovery on a selective
prosecution claim based on race, a defendant must show that a similarly
situated white person was not prosecuted for the same charge. This
decision has effectively foreclosed claims of selective prosecution in
the criminal justice system because the standard is impossible to meet.
Although Justice Stevens may have confused drug use with drug
trafficking in his dissent, the statistical discrepancy is so
significant that this mishap does not fully explain the difference.[0]
(120.) MAUER, supra note 97, at 134. Mauer also notes the criminal
distinction enforced between drunk driving and drug possession. Although
drunk drivers are almost certainly more dangerous to society than those
who possess drugs, drug possession offenders can receive up to five
years in prison for a first offense, whereas drunk drivers are generally
treated as misdemeanants. In addition, seventy-eight percent of those
arrested for drunk driving are white, while those convicted of drug
possession are disproportionately minorities. Id. at 135.
(121.) MICHAEL TONRY, MALIGN NEGLECT: RACE, CRIME AND PUNISHMENT IN
AMERICA 49 (1995), cited in Chin, supra note 6, at 263.
(122.) MAUER, supra note 97, at 148.
(123.) Chin, supra note 6, at 270. Mauer also notes that drug
treatment remains popular and available for middle-class drug users,
both before and after the criminal justice system becomes involved.
These opportunities are in “short supply” for low-income
individuals. MAUER, supra note 97, at 135.
(124.) See, e.g., David A. Harris, The Reality of Racial Disparity,
in Criminal Justice.” The Significance of Data Collection, 66 LAW
& CONTEMP. PROBS. 71 (2003); David A. Harris, The Stories, the
Statistics, and the Law: Why “Driving While Black” Matters, 84
MINN. L. REV. 265 (1999). Harris notes that research demonstrates
officers are actually less likely to find contraband or uncover other
criminal behavior when they use race or ethnicity as a factor in
determining whom to stop and search than if they use a nonracial focus
on suspicious behavior.
(125.) MAUER, supra note 97, at 128-29.
(126.) Ewald, supra note 7, at 1130 n.339.
(127.) See Behrens et al., supra note 78, at 560. No other
democratic nation has felon disenfranchisement laws as broad as those of
the United States. For more information on disenfranchisement provisions
in other countries, see id. at 562 n.3; Fellner & Mauer, supra note
29, at 17–18.
(128.) KEYSSAR, supra note 12, at 308.
(129.) Uggen & Manza, supra note 4, at 782.
(130.) Fellner & Mauer, supra note 29, at 8.
(131.) The Sentencing Project, Felony Disenfranchisement Laws in
the United States (2004), at
http://www.sentencingproject.org/pdfs/1046.pdf (last visited Nov. 2,
2004).
(132.) Id. In fact, ex-convicts constitute forty percent of the
disenfranchised population in the United States.
(133.) Id. For a more detailed breakdown of the current nuances of
criminal disenfranchisement laws in various states, see Ewald, supra
note 7, at 1054 n.23; Saxonhouse, supra note 7, at 1604-06.
(134.) Karlan, Convictions and Doubts, supra note 7, at 1157
(citing the 1870 national census, which counted approximately 1,083,484
black men in the United States over the age of twenty). Recent studies
estimate that there are 1.8 million African American felons and
ex-felons who are disenfranchised. Uggen & Manza, supra note 4, at
780. In the 1996 presidential election, only 4.6 million black men
voted. Fellner & Mauer, supra note 29, at 8.
(135.) Fellner & Mauer, supra note 29, at 2.
(136.) One Person, No Vote, supra note 7, at 1941 n.18.
(137.) Fellner & Mauer, supra note 29, at 8. Since the
controversial election of 2000, Florida’s criminal
disenfranchisement provisions have received the most attention from
scholars and journalists. Uggen and Manza note that Florida has more
disenfranchised felons than any other state (827,000). Uggen &
Manza, supra note 4, at 792. Florida’s 436,900 disenfranchised
ex-felons comprise one-third of all disenfranchised ex-felons in the
nation. Fellner & Mauer, supra note 29, at 7-9. In fact,
approximately 10.5% of the voting-age black population in Florida
consists of disenfranchised ex-felons. See Johnson v. Bush, 353 F.3d
1287, 1293 (11th Cir. 2003), vacated by 377 F.3d 1163 (11th Cir. 2004).
(138.) Fellner & Mauer, supra note 29, at 13.
(139.) Marc Mauer, Mass Imprisonment and the Disappearing Voters,
in INVISIBLE PUNISHMENT, supra note 93, at 50, 52.
(140.) Uggen & Manza, supra note 4, at 792. Uggen and Manza
controlled for a variety of variables and estimated that ex-felons would
vote in similar fashion to those of their socioeconomic group (i.e.,
seven in ten would vote Democratic). Id. at 786. They estimated felon
turnout to be less than that of nonfelons, and that even if felons had
turned out at only half the rate of nonfelons, Gore still would have
won. Id. at 792. This past summer, Florida governor Jeb Bush scrapped a
felon purge list that would have eliminated nearly 48,000 registered
voters because the list was found to be inaccurate. See Mary Ellen Klas,
State Kills Flawed Felon Purge List, MIAMI HERALD, July 10, 2004,
available at 2004 WL 85397829. Of the 48,000 people on the list, 28,000
were registered Democrats while only 9500 were registered Republicans.
See Chris Davis & Mathew Doig, Voter-Purge Decision Could Haunt Jeb
Bush, SARASOTA HERALD-TRIB. (Sarasota, Fla.), July 13, 2004, at A1.
Notably, blacks comprised more than 22,000 people on the lists; whites
made up slightly more than 24,000. Id.
(141.) Uggen & Manza, supra note 4, at 789-90.
(142.) Behrens et al., supra note 78, at 596.
(143.) Id. at 599.
(144.) See id. at 583 n.13. In 2000, Delaware abandoned its
requirement that ex-offenders must receive a pardon in order for their
civil rights to be restored; they must now wait five years. Since July
1, 2001, New Mexico has automatically restored voting rights upon
completion of sentence. As of January 1, 2003, Maryland requires a
three-year waiting period before restoring the franchise to most
recidivists. In 2003, Nevada liberalized its law and now restores voting
rights to nonviolent first-time felons upon completion of sentence. Id.
For more information on recent developments in felon disenfranchisement
laws, see The Sentencing Project, Legislative Changes on Felony
Disenfranchisement, 1996-2003 (2003) at
http://www.sentencingproject.org/pdfs/legchanges-report.pdf (last
visited Nov. 2, 2004).
(145.) Karlan, Ballots and Bullets, supra note 7, at 1370. Hawaii
was the last state to enact a criminal disenfranchisement provision for
ex-felons; it did so when it gained statehood in 1959. Behrens et al.,
supra note 78, at 564.
(146.) According to a recent study, approximately 80% of Americans
believe that ex-felons should vote, between 60% and 68% would permit
probationers to vote, and around 60% of Americans believe parolees
should vote. Only 31% believe that prisoners should vote. See Jeff Manza
et al., “Civil Death” or Civil Rights? Public Attitudes
Towards Felon Disfranchisement in the United States (Mar. 4, 2003), at
http://www.socsci.umn.edu/-uggen/POQ8.pdf (last visited Nov. 8, 2004).
(147.) U.S. Comm’n on Civil Rights, Voting Irregularities in
Florida During the 2000 Presidential Election–Executive Summary (2001),
http://www.usccr.gov/pubs/vote2000/report/exesum.htm (last visited Nov.
24, 2004). For more analysis of the voting issues surrounding
Florida’s 2000 election, see Paul M. Schwartz, Voting Technology
and Democracy, 77 N.Y.U.L. REV. 625 (2002).
(148.) Karlan, Convictions and Doubts’, supra note 7, at
13-14.
(149.) U.S. Comm’n on Civil Rights, supra note 147.
(150.) David Margolick et al., The Path to Florida, VANITY FAIR,
Oct. 2004, at 310, 312.
(151.) Karlan, Convictions and Doubts, supra note 7, at 1158.
(152.) Scott Hiaasen et al., Felon Purge Sacrificed Innocent
Voters, PALM BEACH POST (Palm Beach, Fla.), May 27. 2001. at 1A.
(153.) Id.
(154.) Id. The analysis showed that more than 1300 registered
voters were matched with felons even though their race or sex was wrong.
The study also shows that ultimately, approximately half the people on
the purge list were removed from the voter rolls.
(155.) Id.
(156.) See supra note 140; see also Mark Caputo, Questions over
Felon ‘Purge List’ Threaten Bush, MIAMI HERALD, July 4, 2004,
at 1A (noting that a Herald investigation revealed that 2100 people on
the purge list had already had their right to vote restored by the
state’s clemency process). Notably, the Herald study revealed that
the highest concentration of voters incorrectly placed on the purge list
hailed from the most densely African American zip code in the state,
which is located in Fort Lauderdale. Id.
(157.) See Schwartz, supra note 147, at 690 (noting that
Georgia’s election system produced a greater spoilage rate of
ballots than Florida’s). Of course, ballot-spoilage rate and the
implementation of felon disenfranchisement provisions are separate
matters. But the fact that Georgia’s system was so bad yet has
still gone largely unnoticed supports the theory that other voting
registration or exclusion instruments are similarly implemented in a
subpar manner.
(158.) Mauer, supra note 139, at 55-56.
(159.) Id. at 56. For example, in Alabama a DNA test is required
before one’s right to vote is restored, yet only four out of
sixty-seven counties are equipped to administer the test. During one
two-year span in Virginia, only 404 ex-felons regained the right to
vote, out of more than 200,000 in the state. And in Mississippi, an
ex-offender must receive an executive order from the Governor or pass a
bill through the legislature in order to restore her voting rights. Id.
(160.) Fellner & Mauer, supra note 29, at 6.
(161.) See One Person, No Vote, supra note 7, at 1945.
(162.) Id. at 1945-46; see also Gary Kane & Scott Hiaasen,
Clemency Process Unfair to Blacks?, PALM BEACH POST (Palm Beach, Fla.),
Dec. 23, 2001, at 1A.
(163.) Kane and Hiaasen, supra note 162.
(164.) Debbie Cenziper & Jason Grotto, Clemency Proving Elusive
for Florida’s Ex-Cons, MIAMI HERALD, Oct. 31, 2004, at A1. And if
all ex-felons applied for clemency, it would, at the current rate, take
two hundred years to address each application. Jason Grotto & Debbie
Cenziper, The Long Road to Clemency, MIAMI HERALD, Nov. 7, 2004, at A1.
(165.) Id. If an applicant had unpaid costs of more than $1000,
automatic restoration was no longer available, and he had to hope he was
one of the few who received a clemency hearing.
(166.) Wyatt Olson, Barred for Life: The Process for Restoring the
Civil Rights of Felons in Florida Works Perfectly–If Not Restoring
Their Rights Is the Goal, MIAMI NEW TIMES, Jan. 16, 2003, LexisNexis,
Miami New Times (Florida) database. The new, simplified application
process preserves the discretion of the old form, and also
“considers” several factors, including whether the applicant
has accrued any traffic offenses since the conviction. See Fla. Parole
Comm’n, Information and Instructions on Applying for Restoration of
Civil Rights, at http://www.state.fl.us/fpc/PDFs/clemency/
InformationandInstructionsonApplyingforRestorationofCivilRights.PDF
(last visited Nov. 3, 2004).
(167.) Florida Caucus of Black State Legislators, Inc. v. Crosby,
877 So. 2d 861 (Fla. Dist. Ct. App. 2004); see also Tamara Lush, Bush
Dumps Request Form for Clemency, ST. PETERSBURG TIMES (St. Petersburg,
Fla.), July 23, 2004, at 1B.
(168.) Id. About 15% of applicants in Florida can have their voting
rights automatically restored; of the remaining 85%, only a lucky few
received a hearing before the governor and his cabinet to determine if
restoration was appropriate. Margolick et al., supra note 150, at 363.
By 2002, Florida had a backlog of 62,000 ex-felons seeking restoration
of their voting rights. Id. at 361. Clemency hearings occur four times a
year. In each sitting, the governor invites between 60 and 130
applicants at a time. Id. at 363. Prodded by a legal challenge led by
the Florida Caucus of Black State Legislators, which alleged that
124,000 people from 1992 to 2001 had been denied their restoration
application materials, Governor Bush announced this summer that since
June 2003, more than 20,000 ex-felons’ voting rights were restored.
Id. at 363-64. It was unclear, however, how many more ex-felons had
their rights restored than were required by the Crosby ruling. See
Johnson v. Bush, 353 F.3d 1287, 1293 (11th Cir. 2003), vacated by 377
F.3d 1163 (11th Cir. 2004).
(169.) David A. Singleton & Breean Walas, The
Disenfranchisement of the Re-enfranchised: How Confusion over Felon
Voter Eligibility in Ohio Keeps Qualified Ex-Offender Voters from the
Polls (Aug. 2004), at http://www.prisonreform.com/reports/
Ohio%20Felon%20Voting%20Rights%20Paper.pdf (last visited Nov. 22, 2004).
Ohio only prevents prisoners from voting; individuals on parole or
probation may vote.
(170.) Brennan Ctr. for Justice, Right to Vote Research Toolkit, at
http://www.brennancenter.org/programs/downloads/vr_righttovote.pdf (last
visited Nov. 24, 2004).
(171.) See One Person, No Vote, supra note 7, at 1962.
(172.) Id. at 1963.
(173.) In Farrakhan v. Washington, plaintiffs alleging that the
restoration procedures in Washington violated the Voting Rights Act had
this claim dismissed for lack of standing. 338 F.3d 1009, 1022 (9th Cir.
2003), cert. denied, 2004 WL 2058775 (Nov. 8, 2004).
(174.) See Note, The Disenfranchisement of Ex-Felons: Citizenship,
Criminality, and “The Purity of the Ballot Box,” 102 HARV. L.
REV. 1300, 1313 (1989) [hereinafter Purity of the Ballot Box]. The term
originated in the courts in an 1884 Alabama case, Washington v. State,
75 Ala. 582, 585 (1884).
(175.) Though vitally important and instructive, this material is
beyond the scope of this Note. For doctrinal arguments debunking felon
disenfranchisement as a regulatory provision, see generally Fellner
& Mauer, supra note 29; Marc Mauer, Felon Voting Disenfranchisement:
A Growing Collateral Consequence of Mass Incarceration, 12 FED. SENTENCE
REP. 248 (2000); Shapiro, supra note 31; Purity of the Ballot Box, supra
note 174. For constitutional and theoretical critiques of the punitive
foundations of felon disenfranchisement, see George P. Fletcher,
Disenfranchisement as Punishment.” Reflections on the Racial Uses
of Infamia, 46 UCLA L. REV. 1895, 1901 (1999); Karlan, Ballots and
Bullets, supra note 7; Karlan, Convictions and Doubts, supra note 7, at
1164-69. Few, if any, supporters or critics of felon disenfranchisement
believe that it serves any rehabilitative purpose.
(176.) See Purity of the Ballot Box, supra note 174, at 1303. Since
most crimes do not relate to elections, voter fraud rationales are
remarkably overinclusive because the “provision is not limited to
those who have demonstrated a marked propensity for abusing the ballot
by violating election laws.” See Richardson v. Ramirez, 418 U.S.
24, 79 (1974) (Marshall, J., dissenting). This rationale is also
underinclusive since some states, such as Mississippi, do not
disenfranchise voter fraud offenders. Id. Moreover, one need not be a
registered voter to bribe an election official or commit electoral
misconduct. And there are numerous criminal offenses available “to
deter and to punish electoral misconduct.” Id. at 81.
(177.) See Mauer, supra note 175. In an oft-cited opinion, Judge
Friendly explained this rationale: “It can scarcely be deemed
unreasonable for a state to decide that perpetrators of serious crimes
shall not take part in electing legislators who make the laws, the
executives who enforce these, the prosecutors who must try them for
further violations, or the judges who are to consider their cases.”
Green v. Bd. of Elections, 380 F.2d 445, 451 (2d Cir. 1967). On the
other hand, Mauer describes how difficult it would be for a group of
ex-offenders to unify, organize, and present a candidate who receives
more than fifty percent of the vote, who then convinces more than half
the legislators to pass his antidemocratic bill. See Mauer, supra note
175, at 250. This fact pattern is so fanciful that one need not even
address the fundamental notion that ex-offenders with experience in the
criminal justice system would irrationally want to pass laws promoting
crime, a notion which has no empirical support.
(178.) See Fellner & Mauer, supra note 29, at 15.
(179.) But since an ex-offender must still pay taxes, must obey the
existing laws after she is out of prison, and still retains other rights
(such as the right to marry and divorce), some argue that the
“social contract” only goes one way. For an excellent critique
of the “social contract” argument, see Johnson-Parris, supra
note 7. Johnson-Parris argues that upon reentering society, an ex-felon
effectively creates a second contract with society in which the
nonincarcerated felon shares the obligations of the social contract with
other nonfelon members of society but does not receive the same
benefits. This second contract may be deemed unconscionable because the
ex-felon does not receive the same benefits as others in a similar
situation. Id. at 113. Furthermore, it is unrealistic to expect a
citizen to agree to a contract that is nullified by a single breach. See
Purity of the Ballot Box, supra note 174, at 1305.
(180.) See Behrens et al., supra note 78, at 571. According to
Uggen and Manza’s important study of political effects of felon
disenfranchisement, McConnell is one of the seven senators who likely
won his first election as a result of felon disenfranchisement. Uggen
& Manza, supra note 4, at 788. Opponents of felon disenfranchisement
also make vote dilution arguments based on the fact that the decennial census counts prisoners as residents of the county where they are
imprisoned, not as residents of their home neighborhoods. For more on
how prisoners dilute the vote of African American communities, including
a discussion of bow this dilution compares with that created by the
“three-fifths clause” of the original Constitution, see
Karlan, Convictions and Doubts, supra note 7, at 1160.
(181.) See Mauer, supra note 139, at 54. Historian Alexander
Keyssar explains that proponents argued that “men who could not be
legally relied on to tell the truth … would corrupt the electoral
process. They also expressed the fear that enfranchised ex-felons might
band together and vote to repeal the criminal laws. Both arguments were
at best conjectural.” KEYSSAR, supra note 12, at 163.
(182.) See Purity of the Ballot Boy, supra note 174, at 1307-10.
(183.) Washington v. State, 75 Ala. 582, 585 (1884).
(184.) Shepherd v. Trevino, 575 F.2d 1110, 1115 (5th Cir. 1978),
cert. denied, 439 U.S. 1129 (1979). The Supreme Court denied certiorari despite the fact that it had previously ruled that “‘[f]encing
out’ from the franchise a sector of the population because of the
way they may vote is constitutionally impermissible.” Carrington v.
Rash, 380 U.S. 89, 94 (1965).
(185.) Behrens et al., supra note 78, at 573 (emphasis added).
(186.) See Bobo & Smith, supra note 51, at 186.
(187.) Id. (emphasis added). “Laissez-faire racism blames
blacks themselves for the black-white gap in socioeconomic standing and
actively resists meaningful efforts to ameliorate America’s racist
social conditions and institutions.” Id.
(188.) Behrens et al., supra note 78, at 574.
(189.) See Purity of the Ballot Box, supra note 174, at 1311.
(190.) See Travis, supra note 93, at 19. According to Senator
McConnell, “[w]e are talking about rapists, murderers, robbers, and
even terrorists or spies.” Behrens et al., supra note 78, at 572.
Behrens, Uggen, and Manza estimate that offenders convicted of these
crimes represent approximately twenty-two percent of the total state and
federal prison population, and a far smaller share of the probation,
parole, and ex-felon populations. Id. at 573 n.7.
(191.) See Ewald, supra note 7, at 1128-29.
(192.) Id. A growing number of works of authorship address this
connection between race and crime. For more information on the
racialization of crime, see id. at 1128 n.333.
(193.) See Fletcher, supra note 175, at 1897. Ewald notes that
being “tough on crime” naturally indicates taking steps with
the aim of reducing crime. “But glaringly absent from the
historical and legal literature on disenfranchising offenders–whether
temporarily or permanently–is the claim that imposing the sanction
reduces crime.” Ewald, supra note 7, at 1107.
(194.) See Fletcher, supra note 175, at 1897.
(195.) 539 U.S. 461 (2003). In Ashcroft, the Court, for the first
time. acknowledged that minorities may enhance their political power by
reducing the number of safe districts those where the minority
representative of choice is all but guaranteed to win and adding more
influence in other districts.
(196.) As amended in 1982, section 2 provides, in relevant part:
(a) No voting qualification or prerequisite to voting or standard,
practice, or procedure shall be imposed or applied by any State or
political subdivision in a manner which results in a denial or
abridgment of the right of any citizens of the United States to
vote on account of race or color….
Voting Rights Act Amendments of 1982 [section] 3, 42 U.S.C.
[section] 1973 (2000). The Supreme Court has recognized that Congress
passed this amended version of section 2 with the express purpose of
eliminating the requirement that minority voters challenging a voting
practice or procedure must show discriminatory intent as well as a
discriminatory effect. See Thornburg v. Gingles, 478 U.S. 30, 43-44
(1986).
(197.) Wesley v. Collins, 791 F.2d 1255, 1262 (5th Cir. 1986); see
also Muntaqim v. Coombe, 366 F.3d 102 (2d Cir. 2004) (holding that the
Voting Rights Act does not apply to New York’s felon
disenfranchisement law), cert. denied, 2004 WE 2072975 (Nov. 8, 2004).
(198.) Farrakhan v. Washington, 338 F.3d 1009, 1020 (9th Cir.
2003), cert. denied, 2004 WL 2058775 (Nov. 8, 2004); see also Johnson v.
Bush, 353 F.3d 1287 (11th Cir. 2003), vacated by 377 F.3d 1163 (11th
Cir. 2004). In both cases, the courts received substantial statistical
and empirical evidence, as well as various expert reports, outlining the
existing “nexus between disenfranchisement and racial bias in other
areas, such as the criminal justice system.” Johnson, 353 F.3d at
1306. In Johnson, the court recognized that “differential treatment
results, at least in part, from racial and ethnic bias on the part of
enough individual police officers, prosecutors, and judges to make the
system operate as if it intended to discriminate against
non-whites.” Id. at 1306 n.26; see also Karlan, Convictions and
Doubts, supra note 7, at 1163-64.
(199.) 353 F.3d 1287.
(200.) 338 F.3d 1009.
(201.) 791 F.2d 1255.
(202.) See, e.g., Johnson, 353 F.3d at 1305 n.24.
(203.) Id. at 1305 (quoting Thornburg v. Gingles, 478 U.S. 30, 47
(1986)).
(204.) Farrakhan, 338 F.3d at 1019. In other words, the “by
itself’ inquiry does not permit an analysis of the interaction
between the voting practice–in this case, felon disenfranchisement
provisions–and other “social or historical conditions.”
(205.) M. According to the legislative history of amended section
2, “even a consistently applied practice premised on a racially
neutral policy would not negate a plaintiffs showing through other
factors that the challenged practice denies minorities fair access to
the process.” S. REP. No. 94-417, at 29 n.117 (1982), reprinted in
1982 U.S.C.C.A.N. 177, 207 n.117. Congress passed amended section 2 in
direct response to City of Mobile v. Bolden, 446 U.S. 55 (1980), in
which the Court determined that racial vote dilution claims required a
showing of discriminatory intent under the “one person, one
vote” inquiry of the Equal Protection Clause.
(206.) See Farrakhan, 338 F.3d at 1020.
(207.) See Bush v. Vera, 517 U.S. 952, 992 (1996) (O’Connor,
J., concreting) (“We should allow States to assume the
constitutionality of [section] 2 of the VRA, including the 1982
amendments.”).
(208.) See City of Boerne v. Flores, 521 U.S. 507, 532 (1997).
(209.) Muntaqim v. Coombe, 366 F.3d 102, 115 (2d Cir. 2004), cert.
denied, 2004 WE 2072975 (Nov. 8, 2004).
(210.) Farrakhan v. Washington, 359 F.3d 1116 (9th Cir. 2004)
(denial of rehearing en banc) (Kozinski, J., dissenting).
(211.) Id. at 1124 (quoting City of Boerne, 521 U.S. at 532).
(212.) Id. at 1123-24. For this reason, Washington may not be the
right state for felon disenfranchisement opponents to bring a Voting
Rights Act claim. A state such as Mississippi, which has a history of
discriminatory voting practices, might present a more persuasive case
against the provisions.
(213.) For a thorough analysis of the constitutionality of amended
section 2, see Pamela S. Karlan, Two Section Twos and Two Section Fives.
Voting Rights and Remedies After Flores, 39 WM. & MARY L. REV. 725,
726 (1998) (arguing that the disparate impact test of section 2 of the
Voting Rights Act is properly “designed to address prior
unconstitutional discrimination, both within and outside the electoral
process, as welt as to prevent future invidious conduct”); Jennifer
G. Presto, The 1982 Amendments to Section 2 of the Voting Rights Act:
Constitutionality After City of Boerne, 59 N.Y.U. ANN. SURV. AM. L. 609,
610 (2004) (concluding that although Congress may not have examined
sufficient evidence to satisfy the standard articulated in City of
Boerne, “the Court may have left open some room in its holding that
preserves the constitutionality of the amendments”).
(214.) Farrakhan, 359 F.3d at 1123 (quoting Oregon v. Mitchell, 400
U.S. 112, 234 (1970) (Brennan, J., concurring)) (alterations in
original).
(215.) Id. Judge Kozinski does acknowledge that literacy tests
“do not in and of themselves violate the Constitution.” Id. at
1120.
(216.) See supra notes 32, 66 and accompanying text.
(217.) Mitchell, 400 U.S. at 132 (majority opinion). The Court was
also swayed by statistics showing that minorities voted more in states
that did not have literacy tests than in ones that did. Id. at 133. But
it is unclear how Judge Kozinski can justify the use of
“statistical disparities” to justify a prophylactic statute in
the Mitchell context, while refusing to consider ones pertaining to the
current criminal justice system.
(218.) See Farrakhan, 359 F.3d at i120 (“This legislative
history demonstrates that Congress recognized the long tradition of
felon disenfranchisement laws when it enacted the YEA.”).
(219.) See supra note 89.
(220.) See Johnson v. Bush, 353 F.3d 1287 (11th Cir. 2003) (holding
that mere constitutional reenactment, without addressing the racially
discriminator?’ intent of the provision, does not erase the racial
taint of the original provision for equal protection purposes), vacated
by 377 F.3d 1163 (11th Cir. 2004); see also infra note 233 and
accompanying text.
(221.) 383 U.S. 301 (1966).
(222.) 400 U.S. 112.
(223.) Section 2 of the Fourteenth Amendment, often referred to as
the reduction-in-representation clause, provides:
Representatives shall be apportioned among the several States
according to their respective numbers, counting the whole number
of persons in each State, excluding Indians not taxed. But when
the right to vote at any election for the choice of electors for
President and Vice President of the United States, Representatives
in Congress, the Executive and Judicial officers of a State, or the
members of the Legislature thereof, is denied to any of the male
inhabitants of such State, being twenty-one years of age, and
citizens of the United States, or in any way abridged, except for
participation in rebellion, or other crime, the basis of
representation therein shall be reduced in the proportion which the
number of such male citizens shall bear to the whole number of male
citizens twenty-one years of age in such State.
U.S. CONST. amend. XIV, [section] 2 (emphasis added).
(224.) Richardson v. Ramirez, 418 U.S. 24, 54 (1974).
(225.) Id. at 55.
(226.) See, e.g., David L. Shapiro, Mr. Justice Rehnquist: A
Preliminary View, 90 HARV. L. REV. 293, 302-04 (1976); Note, The Supreme
Court, 1973 Term: Disenfranchisement of Former Criminal Offenders, 88
HARV. L. REV. 101 (1974).
(227.) For a particularly strong critique of the opinion, see
Ewald, supra note 7, at 106672 (arguing that the textual decision of
Richardson precluded the Court from addressing theoretical and
principled arguments against criminal disenfranchisement, thus allowing
it to avoid its previous decisions protecting voting rights as a
fundamental right). Ewald also notes that even if section 2 is used, the
history of the disenfranchisement of former Confederates should be a
guidepost for the Court. The relevant constitutional phrase is
“rebellion, or other crime,” which unquestionably referred to
former Confederates. Yet few states disenfranchised former Confederates,
and the Amnesty Act of 1872 restored most civil rights and privileges to
all Confederates. Id. at 1104. If those who committed treason can be
forgiven by restoring their vote, shouldn’t those who commit
larceny also be similarly forgiven’? See also Karlan, Convictions
and Doubts, supra note 7, at 1155 (“[E]ven if criminal
disenfranchisement statutes are presumptively constitutional because of
Section 2–as opposed to most other restrictions on the franchise, which
are presumptively unconstitutional their constitutionality is only
presumptive: They still must serve some legitimate purpose and they
cannot rest on an impermissible one.”); Saxonhouse, supra note 7
(comparing felon disenfranchisement to collateral consequences
concerning employment and showing that Richardson is an anomaly under
the equal protection doctrine).
(228.) Richardson, 418 U.S. at 74 (Marshall, J., dissenting).
“To say that [section] 2 of the Fourteenth Amendment is a direct
limitation on the protection afforded voting rights by [section] 1 leads
to absurd results,” Marshall wrote. “If one accepts the
premise that [section] 2 authorizes disenfranchisement for any crime,
the challenged California provision could … require disenfranchisement
for seduction under promise of marriage, or conspiracy to operate a
motor vehicle without a muffler.” Id. at 75 n.24.
(229.) Fletcher, supra note 175, at 1901.
(230.) Id.
(231.) 471 U.S. 222 (1985).
(232.) Id. at 232-33.
(233.) One Person, No Vote, supra note 7, at 1952. The note’s
author stated, “Were Hunter read literally, any disenfranchisement
that produced a racially disparate impact would be presumptively
unconstitutional if race was a ‘motivating factor’ in its
enactment …. ” Id. at 1951. But see Cotton v. Fordice, 157 F.3d
388, 392 (5th Cir. 1998) (ruling that by altering the criminal
disenfranchisement provision by adding more disqualifying crimes,
Mississippi erased the original racially discriminatory intent).
(234.) Johnson v. Bush, 353 F.3d 1287, 1297 (11th Cir. 2003),
vacated by 377 F.3d 1163 (11th Cir. 2004). The court determined that the
simple reenactment of the original felon disenfranchisement provision,
without more, cannot erase the taint of a racially discriminatory
purpose upon the original enactment. In order to eliminate the original
purpose, a state must reenact its criminal disenfranchisement provision
“on the basis of an independent, non-discriminatory purpose.”
Id. at 1301. The court added, “Retaining an originally
discriminatory provision in order to preserve continuity, or out of
deference to tradition, or simply due to inertia does not amount to an
independent purpose sufficient to break the chain of causation between
the original racial animus and the provision’s continuing force as
law.” Id. at 1302; see also Karlan, Convictions and Doubts, supra
note 7, at 1158-59.
(235.) See, e.g., Watson v. Fort Worth Bank and Trust, 487 U.S.
977, 987 (1988) (“[T]he necessary premise of the disparate impact
approach is that some employment practices, adopted without a
deliberately discriminatory motive, may in operation be functionally
equivalent to intentional discrimination.”); Griggs v. Duke Power
Co., 401 U.S. 424 (1971) (holding that Title VII authorized disparate
impact claims).
(236.) See Raytheon Co. v. Hernandez, 540 U.S. 44, 53 (2003)
(“Both disparate-treatment and disparate-impact claims are
cognizable under the ADA.”).
(237.) See Smith v. City of Jackson. 351 F.3d 183 (5th Cir. 2003),
cert. granted, 124 S. Ct. 1724 (2004).
(238.) Thornburg v. Gingles. 478 U.S. 30.44 (1986) (quoting S. REP.
NO. 97-417, at 36 (1982)).
(239.) See Voting Restoration Act. H.R. 2830, 107th Cong. (2001);
Civic Participation Act of 2000, S. 2666, 106th Cong. (2000); Civic
Participation and Rehabilitation Act of 1999, H.R. 906, 106th Cong.
(1999).
(240.) See Help America Vote Act of 2002, 42 U.S.C. [subsection]
15301-15545 (Supp. II 2002).
(241.) See Brennan Ctr. for Justice, The Help America Vote Act, at
http://www.brennancenter.org/programs/downloads/HAVA%20Fact%20Sheet.pdf
(last visited Nov. 22, 2004).
(242.) See Gabrielle B. Ruda, Picture Perfect: A Critical Analysis
of the Debate on the 2002 Help America Vote Act, 31 FORDHAM URB. L.J.
235 (2003); Leonard M. Shambon, Implementing the Help America Vote Act,
3 ELECTION L.J. 424 (2004).
(243.) See supra note 144 and accompanying text.
(244.) The choice is somewhat attenuated, however. Few people know
they will be disenfranchised if they commit a crime, so the deterrent
effect is all but nonexistent. Further, when agreeing to a guilty plea,
which accounts for ninety-one percent of all criminal adjudications,
neither the judge nor the prosecutor must tell the defendant that he
will no longer be able to vote. See Stephanos Bihas, Judicial
Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110
YALE L.J. 1097, 1150 (2001). Finally, this argument loses all force once
a felon serves the punishment and reenters society yet still cannot vote
for the rest of his life.
Daniel S. Goldman, J.D. Candidate, Stanford Law School, Class of
2005. I am particularly grateful to Pam Karlan, Michelle Alexander, and
Mark Kelman for their guidance, wisdom, and assistance. I’d also
like to thank my wife, Anne Montminy, for her unyielding support.
Insightful Views 