“Restoring the Vote: Former Felons, International Law, and the Eighth Amendment”

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.

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