All posts by Franita Tolson

New essay alert: “In Whom is the Right of Suffrage?”

This is my first blog post on ELB, and I couldn’t be more excited to be a part of the revamp. I am a devout reader of the blog and very much appreciate the hard work that Rick has put in to provide this outlet for the election law community.

I wanted to blog a bit about an essay that I wrote for the joint “Reckoning and Reformation” symposium (which was graciously hosted by a number of law reviews) that I am super excited about. My contribution, forthcoming in the University of Pennsylvania Law Review, is entitled “In Whom is the Right of Suffrage?: The Reconstruction Acts as Sources of Constitutional Meaning.” It is on ssrn, available here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3880655.

The essay (which is short!) looks at the Reconstruction Acts that readmitted the former confederate states back into the union during Reconstruction. Scholars have long argued that these acts, which imposed certain limits on these states as a condition of readmission, are legally unenforceable, but my essay argues that the statutes still have implications for how we think about voting rights today.

Importantly, the Acts imposed limitations on southern states with respect to the voting rights of their citizens, stating that they could only disenfranchise individuals for felonies at common law. This language sheds light on the reach of the reduced representation provision of Section 2 of the Fourteenth Amendment and, importantly, the universe of crimes for which one can be disenfranchised consistent with the republican guarantee of Article IV, Section 4. Section 2, in particular, allows Congress to reduce a state’s delegation in the House of Representatives by removing disfranchised voters from the basis of population used for apportionment, but permits states to disenfranchise individuals “for participation in rebellion or other crime.”

Clarifying Section 2, the Reconstruction Acts specify that these states can disenfranchise their residents only for crimes “as are now [1868] felonies at common law” and not for the wide range of crimes that are currently used to disenfranchise individuals in all southern states. In other words, when states disenfranchise their citizens in violation of Section 2 and the Guarantee Clause, as informed by the Reconstruction Acts, these violations constitute an abridgment of the right to vote and render their governments unrepublican in form.

This essay has obvious implications for Florida’s felon re-enfranchisement provision (SB 7066), which requires individuals to pay all fines and fees before they can regain their right to vote after a felony conviction. In Jones v. DeSantis, the 11th Cir upheld SB 7066, but there is no mention of the 1868 Reconstruction Act in the court’s opinion, which upheld the law on the grounds that paying all fines and fees is “highly relevant to voter qualifications.” However, the fact that people are impermissibly disenfranchised for crimes that were not felonies at common law, as specified by the Reconstruction Act readmitting Florida into the union, means that the requirement cannot be relevant to voter qualifications and therefore makes SB 7066 a poll tax.

I hope that you enjoy this short read! Comments are welcome!

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