I am delighted to join the blogging community of Concurring Opinions for the month of April. Thanks to Solangel Maldonado and Daniel Solove for their gracious invitation.
Denying voting rights to citizens with felony convictions has gotten a bad rap. The reason it’s not worse is bec
ause that rap is based on only half the story. Anyone familiar with the complexion of our prison population knows that felon disfranchisement laws extend striking racial disparities to the electoral arena. Less known, however, is that citizens with felony convictions are excluded from the electorate, in part, because of perceptions about how this demographic might vote or otherwise affect the marketplace of ideas. In other words, citizens with felony convictions are denied the right to vote because of their suspected viewpoint.
Picking up on this point earlier this year, Michael Dorf highlighted a dispute between Republican presidential candidates Mitt Romney and Rick Santorum about which of them held the most conservative position concerning the voting rights of citizens convicted of a felony. Inventing a criminal persona named Snake, Dorf queried what issues might provoke such a person to vote: Lower protections for private property or public safety? Redistribution of public resources from law enforcement to education, health, or recreation? Elimination of certain criminal laws? I can fathom many other lawful motivations for voting. However, as Dorf points out (and decidedly rejects), the underlying objection to allowing citizens with felony convictions to vote is based on an assumption that, if they could vote, they would express self-serving and illegitimate interests. In other words, the viewpoint that felons would express through voting has no place in the electoral process.
I have always assumed that my viewpoint was precisely what I and other voters are supposed to express at the ballot box. Whether that viewpoint is shared, accepted, condoned or vehemently disdained and abhorred by others is irrelevant to the right to vote. Not so for citizens with felony convictions. This group of citizens is presumed to possess deviant views that justify their exclusion from the electorate and the denial of a fundamental right.
In his dissent in Richardson v. Ramirez which held that § 2 of the Fourteenth Amendment implicitly authorizes states to deny voting rights based on a felony conviction, Justice Marshall exposed this fear of “subversive voting.” He surmised that the California statute at issue resulted from a concern that the “likely voting pattern [of citizens with criminal convictions who had completed their sentences] might be subversive of the interests of an orderly society.” These ideas echoed from an earlier Second Circuit case, Green v. Board of Elections, brought by a defendant convicted of conspiring to teach and advocate the overthrow and destruction of the government. In defending New York’s felon disfranchisement statute, the court articulated a clear subversive voting rationale rooted in viewpoint discrimination:
[I]t 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. . . . A contention that the [Constitution] requires [a state] to allow convicted mafiosi to vote for district attorneys or judges would not only be without merit but as obviously so as anything can be.
These cases demonstrate that the fear of how these citizens would vote and the impact of their vote is what motivated the legislature to restructure them out of the electorate. If this strikes you are odd, you are in good company. The Supreme Court held in Carrington v. Rash that “‘[f]encing out’ from the franchise a sector of the population because of the way they may vote is constitutionally impermissible.” Moreover, this principle was reinforced in several voting qualifications cases from the late 50s through early 70s in which states attempted to structure the electorate based on the perceived viewpoint of would-be voters. The Court later established in Romer v. Evans that the right to vote cannot be denied because of what a voter is advocating—in other words, for viewpoint. However, the Court has yet to extend this principle to citizens with felony convictions.
With all this talk about expression and viewpoint, surely someone must be asking whether the First Amendment has any role to play here. I think it does. In a recent article, I argue that felon disenfranchisement is motivated, in part, by a form of viewpoint discrimination that ascribes an anti-social, criminal-minded political consciousness to citizens with felony convictions. Felon disfranchisement laws should be reconsidered under the equal protection clause and informed by First Amendment values. One possible avenue for reconsidering the constitutionality of felon disfranchisement laws and their impact on the structure of the electorate is the theory of First Amendment Equal Protection, a discrete dimension of Equal Protection jurisprudence that is informed by First Amendment values. While there has been some recognition of the First Amendment’s relevance in the area of partisan redistricting and certain other areas of election law, the First Amendment has not yet been held to inform voter qualification challenges and the legislative tampering with the structure of the electorate that these laws afford. However, in the same way that redistricting permits incumbents to draw undesirable voters out of their districts, felon disenfranchisement laws allow legislatures to excise from the electorate a group of citizens that does not represent the status quo, the vast majority of whom are marked by the intersection of race, class, and low socio-economic status. Pippa Holloway’s essay, Race and Partisanship in Criminal Disfranchisement Laws: Antecedents of the 2000 Election Controversy in Florida, featured here, provides a historical account of felon disenfranchisement practices maintained for both partisan and racial motivations.
Of course, other laws, most notably voter identification laws about which I hope to write in future posts, also shape the electorate in profound ways. Felon disfranchisement is particularly vexing, however, because it involves the intersection of two historically discriminatory systems—the electoral and penal systems—as well as two constitutional provisions that protect the value of equality. This new viewpoint on felon disfranchisement advances John Hart Ely’s notion that “[n]ot everything that was assumed to be constitutional in 1868 remains immune to the Equal Protection Clause (assuming it ever was) and Section 2 [presumed by Richardson to permit felon disfranchisement] says nothing stronger on the subject of denying felons the franchise than that in 1868 it was assumed to be constitutional.” It is time to challenge this presumption in the face of justifications that contravene core equality principles of both the First and Fourteenth Amendments. It is also time to have enough confidence in our electoral process not to be afraid to hear what folks like Snake have to say.