A Stitch in Haste

SCOTUSblog has a very good update on the status of some "felon vote" cases working their way through lower federal courts. I've blogged about the topic previously.

As background, Section 2 of the Fourteenth Amendment states:

But when the right to vote at any election ... is denied to any of the male inhabitants of such State, ... 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 ... in such State.

In other words, the Constitution expressly allows states to deny the right to vote, but if they do so, then they lose those voters for purposes of calculating House seats and Electoral College votes after each Census, unless the denial is for commission of a crime, or is otherwise addressed elsewhere in the Constitution.

Normally that would be the end of the discussion, but every so often voting rights activists find an "elsewhere in the Constitution" --

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.

So, if you can find a link between felon status and race, you can then try to argue that felon disenfranchisement is actually race-based and therefore a violation of the Fifteenth Amendment and disregard the Fourteenth Amendment altogether.

This is, of course, utter nonsense.

Not all felons are black, and not all blacks are felons. The statistical observation that felon disenfranchisement affects blacks at twice the rate as whites says more about the nature of what we make felonies than about any grand conspiracy to deny blacks, as a group, the right to vote. If a certain crime (e.g., drug dealing) is more likely to create black felons than white felons, then let's revisit our drug laws and not our (clearly constitutional) felon disenfranchisement laws.

Meanwhile, it is intellectually dishonest to lament one statistical observation (i.e., that blacks are more likely to be disenfranchised for a felony conviction) while ignoring another (i.e., that blacks are more likely to vote Democratic). Statistical truisms are a double-edged sword.

The assertion that "once you do your time, all should be forgiven and forgotten" has no basis in the law, history or common sense. Stated differently, the best way to empower convicted felons is by not being one in the first place. To the extent that there are race-based injustices in the law, the causes should be ferreted out and eliminated, not the tenuous and tangential side effects.

(There are also issues in these cases regarding Section 2 of the Voting Rights Act, but I leave those for people more knowledgeable about the VRA.)

Other thoughts at Appellate Law & Practice, Election Law.

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On a side note, I can't stop smiling over this wonderful passage from (then Associate Justice) William Rehnquist in Richardson v. Ramirez, 418 U.S. 24 (1974), which upheld felon disenfranchisement in the absence of any racial issues:

[California] goes on to argue that those who framed and adopted the Fourteenth Amendment could not have intended to prohibit outright in [Section] 1 of that Amendment that which was expressly exempted from the lesser sanction of reduced representation imposed by [Section] 2 of the Amendment. This argument seems to us a persuasive one unless it can be shown that the language of [Section] 2, "except for participation in rebellion, or other crime," was intended to have a different meaning than would appear from its face.

The problem of interpreting the "intention" of a constitutional provision is, as countless cases of this Court recognize, a difficult one. Not only are there deliberations of congressional committees and floor debates in the House and Senate, but an amendment must thereafter be ratified by the necessary number of States. ... Nonetheless, what legislative history there is indicates that this language was intended by Congress to mean what it says.

I love it — textualism at its finest. I only wish Justice Rehnquist and other members of the Court were similarly respectful of the plain text of, say, the Privileges & Immunities Clause, or the Ninth Amendment, or the Twenty-First Amendment, or the "public use" clause of the Fifth Amendment.

Oh well...

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Also, an immodest reminder that my previous post, "Red Felon, Blue Felon," will appear in the forthcoming Thomson Gale compendium volume, "At Issue: Are American Elections Fair?" in 2006.