Bryna Godar has posted this draft on SSRN (forthcoming, Virignia Law Review). Here is the abstract:
Under federal law, states decide whether people lose their voting rights as a result of criminal convictions or mental incapacity. But states vary widely in whether they take federal law up on that offer of exclusion. In one state, you may never lose the right to vote for a felony conviction; in another, you might be disenfranchised for life. Existing literature has explored many facets of disenfranchisement, from analyzing its impacts to proposing reforms. But it has largely overlooked the key role of state constitutions in limiting disenfranchisement—and the ways in which state actors routinely exceed those limits.
Unlike the U.S. Constitution, which has no explicit voting rights guarantee, state constitutions both affirmatively grant the right to vote and list explicit, enumerated exceptions from that right. But state actors routinely overstep those bounds—a practice this article refers to as “disenfranchisement creep.” Based on original analysis of all fifty state constitutions and the complex network of statutes, regulations, and practices that together constitute state disenfranchisement law, this article identifies two primary ways in which state actors disenfranchise people beyond the scope of state constitutions. First, state actors explicitly disenfranchise groups of people beyond what the constitutional text seemingly allows. This article newly identifies this phenomenon of de jure disenfranchisement creep. Second, state actors impose myriad burdens, large and small, that effectively disenfranchise those who supposedly have the right to vote. This article newly explores this de facto disenfranchisement creep through the lens of state constitutions, concluding that it often violates existing voting rights guarantees. In identifying both types of overreaches, this article offers an underexplored approach to reining in disenfranchisement: state constitutional claims in state court.
