Category Archives: felon voting

Alec Ewald has written this Essay for the Yale Law Journal Online.  Here is the abstract:

This Essay replies to Richard Re and Christopher Re’s Voting and Vice. That article, recently published in The Yale Law Journal, demonstrates that the inclusion of the phrase “other crime” in Section 2 of the Fourteenth Amendment was no accident, and the authors contend that widespread support for criminal disenfranchisement in the Reconstruction Congress should enhance the restriction’s status today. This Essay argues that those who wrote disenfranchisement into the U.S. Constitution did so from a context far removed from the views to which Americans adhere today when they talk about voting and political equality. Despite the fact that some Republicans made principled arguments contrasting criminal disenfranchisement with African-American enfranchisement, citizens and legislators who propose to abolish or restrict disenfranchisement neither dishonor nor render incoherent the Reconstruction Amendments.

News from Virginia.

State of Elections: “The US District Court for the Eastern District of Virginia on Friday granted the State’s summary judgment motion on substantive and procedural due process challenges to Virginia’s voter reinstatement process for convicted felons, as well as an Eight Amendment challenge to the disenfranchisement of felons as cruel and unusual punishment. The court did, however, deny summary judgment on El-Amin’s Equal Protection challenge of lifetime felon disenfranchisement in Virginia.”

CBS DC reports.

Times Dispatch: “A House of Delegates subcommittee this morning effectively killed proposals to automatically restore the rights of nonviolent felons, something [Virginia] Gov. Bob McDonnell called for in his State of the Commonwealth address.”

The Advancement Project has issued this press release.

News from Virginia: “Gov. Bob McDonnell called for automatic restoration of civil rights for nonviolent felons during his annual State of the Commonwealth address Wednesday night, committing his prestige to a proposal that his own party has resisted for years.”

Color Lines reports.

John Ghaelian has posted this draft on SSRN (forthcoming Hastings Constitutional Law Quarterly).  Here is the abstract:

The right to vote is a right that many Americans cherish. But for over five million Americans the right to vote is something different. It is merely a dream because they are denied the right. Considered fundamental by the courts and the people, the United States contrarily stands alone in its refusal to allow many former felons the right to vote. The denial of the right to vote leaves a large swath of the population voiceless in matters ranging from the election of the president to who should sit on their child’s school board.

This article begins by chronicling the history of felon disenfranchisement. It begins with its origins in ancient Greece and Rome and traces it to the modern day. The article then explores the negative impact felon disenfranchisement has on the American political process. After describing the history and impact of felon disenfranchisement the article explores the various legal challenges that have been brought to various states felon disenfranchisement laws. Challenges have been made under the Fourteenth Amendment’s Equal Protection Clause, the Voting Rights Act, and the Eighth Amendment. The article will explain why these attempts have been unsuccessful and advocate for a new approach.

This article ultimately concludes that the best hope litigants have is to bring suit under the Eighth Amendment. Litigants must do more than merely rehashing the arguments made in the past. Instead litigants should rely on international case law, attitudes, and approaches to felon disenfranchisement in crafting their Eighth Amendment suit. Using international law presents the best hope litigants have for convincing the judiciary to become more proactive in challenging these laws, and thus litigants should rely upon it in lawsuits going forward.

CNN reports.

Tampa Tribune: “Nearly one-fourth of black Florida adults, and one-tenth of the state’s total voting-age population, aren’t allowed to vote because of the state’s prohibition on voting by former felons, the nation’s highest rate of disenfranchisement, according to a study by an advocacy group.”

MSNBC Lean Forward’s perspective on Iowa’s process for restoring felon voting rights.

The AP reports that fewer than twelve of the over 8000 felons released have regained their right to vote, since the state’s automatic reenfranchisement policy was reversed last year by Gov. Branstad.  According to the story, reenfranchisement now requires a full credit report (not just a summary), a criminal history report (which costs $15), and completion of a ”31-question application that asks for information such as the address of the judge who handled the conviction,” and “the review can take up to six months.”  No surprise that few ex-felons successfully run this gauntlet.

Janai Nelson has posted this draft on SSRN.  Here is the abstract:

This Article engages the equality principles of the First Amendment and the Equal Protection Clause to reconsider the constitutionality of one of the last and most entrenched barriers to universal suffrage—felon disfranchisement. A deeply racialized problem, felon disfranchisement is additionally and independently a legislative judgment as to which citizen’s ideas are worthy of inclusion in the electorate. Relying on a series of cases involving states’ interests in protecting the ballot and promoting its intelligent use, this Article demonstrates that felon disfranchisement is assailable under the Supreme Court’s fundamental rights jurisprudence when it is motivated by a desire to limit political expression based on its perceived content; in other words, when felon disfranchisement is motivated by viewpoint discrimination. The justifications for felon disfranchisement laws reflect a misguided perception of how a voter’s identity, status, or behavior will affect how he votes. This Article confronts these justifications and examines the linkages between the right to vote and First Amendment protections of freedom of speech. Recognizing the difficulty in proving legislative motive in electoral decisions, this Article draws upon the underexplored theory of First Amendment Equal Protection, as well as the Court’s jurisprudence in the area of partisan gerrymandering to formulate the claim of viewpoint discrimination and demonstrate increasing judicial intolerance for legislative tampering in the electoral process with suspect motives. Through its viewpoint discrimination analysis, this Article also lays bare the multi-scalar impact of felon disfranchisement in terms of race, class, and partisanship, thereby highlighting the particular segments of society whose political participation and freedom of expression are most directly infringed by felon disfranchisement, and, perhaps, the underlying motivations for the practice.

A ChapinBlog.

Interesting.  There aren’t too many issues where Romney can run to the right of Santorum.

H. David Schuringa has written this oped for the CS Monitor.

The Washington Times reports. Yesterday’s debate got into Gov. Romney’s position on Massachusetts felon laws, the topic of an excellent student paper I recently read.

Mother Jones offers Rick Santorum: Voting Rights Activist, which include a link to the video of the exchange.