Bruce Cain and Brett Parker have posted this draft on SSRN (forthcoming, Missouri Law Review). Here is the abstract:
Felons represent a large majority of disenfranchised adult Americans, with a significant proportion remaining unable to vote even after completing the entirety of their sentences. As voter eligibility requirements become an increasingly contested partisan battlefield, the fate of these disenfranchised individuals has become increasingly unclear. With this backdrop in mind, we consider recent developments in felon disenfranchisement, the prospects for future legislative action, and the legal arguments that litigants might employ to challenge the practice. In so doing, we exploit newly collected polling data to determine (1) whether Americans are ready to end felon disenfranchisement, and (2) under what circumstances they believe felon disenfranchisement constitutes excessive punishment. Examining these results, we conclude that the prospects for an immediate end to felon disenfranchisement are limited and that a categorical challenge to disenfranchisement under the Eighth Amendment would be doomed to fail. However, our results do suggest that a limited set of “gross disproportionality” challenges could plausibly succeed in states with lifetime disenfranchisement laws. We finish by discussing the disparate impact of disenfranchisement laws on African-Americans and consider the prospects for challenging these laws under the Voting Rights Act.