“The First Amendment, Equal Protection, and Felon Disfranchisement: A New Viewpoint”

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.

 

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