Felon Disenfranchisement

III. Legal Status

There is no uniform federal standard for felon disenfranchisement; instead, such policies have been left to individual states to determine. Unsurprisingly, states now exhibit considerable variation in felon disenfranchisement laws, restricted in scope only by constitutional and federal statutory limitations. Although frequently challenged, felon disenfranchisement laws have been consistently upheld. Typical objections fall into three main categories: (1) the Eighth Amendment Cruel and Unusual Punishment Clause, (2) the Equal Protection Clause, and (3) the Voting Rights Act.

The U.S. Supreme Court has generally adopted a hands-off policy concerning disenfranchisement rationales. Eighth Amendment challenges have generally been upheld when the punishment for the crime is disproportionate or excessive. Such considerations are contextual, based on evolving standards of decency in a community. In a non–felon disenfranchisement case, Ewing v. California (2003), the court ruled that, although punishment may have deterrence, retribution, incapacitation, and restoration rationales, the courts must generally defer to the legislature in choosing and justifying particular punishment. Relying on Ewing, modern courts typically will not question the utility of felon disenfranchisement policies.

In Green v. Board of Elections (1967), the 2nd Circuit Court of Appeals declared that felon disenfranchisement was not an Eighth Amendment violation because it was civil, and not penal, in nature. Moreover, even if penal, such a practice would not have qualified as cruel and unusual by the Constitution’s framers because the practice was widespread at the time. Likewise, the court rejected an equal-protection argument, applying a reasonable justification test rather than a stronger test, such as strict scrutiny. The court also noted that the Fourteenth Amendment’s Section 2 appeared to allow for felon disenfranchisement, observing that it acknowledged possible restrictions of voting rights for citizens who participate “in rebellion, or other crime[s].” In ruling, the court adumbrated a social contract rationale for felon disenfranchisement, reasoning that a felon has broken the social contract and may be disqualified from participation in the political franchise. This social contract reasoning became precedent for subsequent courts.

Green’s Fourteenth Amendment analysis was endorsed by the U.S. Supreme Court in Richardson v. Ramirez (1974). The appellants argued that, under the Equal Protection Clause, felon disenfranchisement, as a practice, must be supported by more than reasonableness but by a compelling state interest. Moreover, such exclusion hindered felon rehabilitation. The court ruled that an equal-protection analysis was unwarranted because felon disenfranchisement was countenanced by Section 2 of the Fourteenth Amendment. The court avoided the rehabilitation issue altogether by deferring to the legislature.

However, in Hunter v. Underwood (1985), the Supreme Court showed a willingness to strike down a felon disenfranchisement policy that was originally intended to discriminate against a particular group on the basis of race. The plaintiff challenged the constitutionality of a state constitutional provision that denied voting privileges to individuals convicted of crimes of moral turpitude.After analyzingAlabama’s constitutional convention of 1902, the court concluded that the moral turpitude ban was a product of racial discrimination. It also concluded that the Fourteenth Amendment’s Section 2 was not intended to shield racial discrimination that was otherwise violative of the Equal Protection Clause.

The Voting Rights Act (1965), Section 2, created a new stumbling block for felon disenfranchisement by prohibiting voting practices or procedures that discriminate against a particular group of individuals on the basis of race or color. Prior to the act, whites had often used literacy tests and poll taxes to exclude African American voters; however, there is convincing evidence that felon disenfranchisement was an extra tool of vote dilution that was calculated to diminish a minority group’s voting power.

Thus far, no Voting Rights Act claim has resulted in a successful challenge to felon disenfranchisement. In Hayden v. Pataki (2006), a convicted New York prisoner claimed that felon disenfranchisement violated the Voting Rights Act’s Section 2, arguing specifically that the historical nature of felon disenfranchisement and its disproportionate impact evidenced its intent to discriminate against a group of individuals on the basis of race.The Second Circuit Court ofAppeals denied the petitioner’s appeal, arguing that, in New York’s case, there was no clear record of legislative intent to discriminate. In addition, Congress did not clearly intend to apply the Voting Rights Act to felon disenfranchisement policies but rather to other types of exclusionary devices, such as literacy tests. The appeals court noted, for example, that Congress had the opportunity to include felon disenfranchisement specifically but failed to do so. Likewise, they cited Richardson’s analysis that felon disenfranchisement was constitutional under the Fourteenth Amendment, unless otherwise violative of equal protection.

To summarize these cases, courts have tended to defer to legislatures in setting felon disenfranchisement policies. Likewise, courts have been reluctant to infer discriminatory intent in disenfranchisement, even when there is clear evidence of discriminatory impact. At the same time, felon populations have little economic and political clout, as is discussed later. As a result, the utility and impact of felon disenfranchisements are virtually unregulated.

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