Votebeat reports Michigan Governor Gretchen Whitmer has signed House Bill 4983, on Nov. 30, which will usher in a new era of expanded voting rights for the state’s former inmates.
Effective June 2025, the first of its kind law will automatically register those completing sentences for felony convictions as they prepare to leave prison.
Tag Archives: felon disenfranchisement
“A Legal Fight Over Whether Governors Can Deny Thousands the Vote”
NY Times: Three states give their governors unfettered discretion when it comes to restoring the voting rights of felons. Two are being sued under the First Amendment. At the heart of these cases is whether a governor’s discretion to restore voting rights must be cabined by rules to prevent the risk that the restoration power will be used “to silence citizens because of their opinions” or suspected partisan affiliations. The Sixth Circuit Court of Appeals has ruled that the First Amendment’s prohibition on viewpoint discrimination applies to granting permits for public protests but does not apply to a governor’s pardon powers in a suit involving Kentucky. Voting rights advocates are now suing Virginia.
“Fight over felons’ voting rights heats up for 2024”
“Democrats in Congress have begun an uphill push for a national standard on restoring felons’ voting rights. …
“‘Their plan wouldn’t let the people of Kentucky or our elected representatives in Frankfort make this important decision,'” Senate Minority Leader Mitch McConnell (R) told Axios.”
“Proposed Legislation Would Restore Voting for Released Felons”
“The Democracy Restoration Act would restore voting rights for released felons in federal elections only. In states where eligibility doesn’t kick in during probation or parole, the voter would only be able to fill out a federal ballot, said Patrick Berry, counsel at the left-leaning Brennan Center for Justice.”
There is an issue concerning the constitutionality of this proposed legislation, given the Supreme Court’s decision in Richardson v. Ramirez interpreting section 2 of the Fourteenth Amendment. There’s an argument that Congress would be trying to enact the law pursuant to its power to enforce the Fifteenth Amendment on the ground that felon disenfranchisement has a demonstrably discriminatory effect based on race. But it seems difficult to see (at least for me) how that argument would survive the Supreme Court’s invocation of its reasoning in Shelby County v. Holder, which (whether one likes it or not) curtails the capacity of Congress to legislate expansively to enforce the Fifteenth Amendment. Insofar as violations of the Fifteenth Amendment require intentional discrimination based on race, and insofar as the theory of this statute is to stop felon disenfranchisement laws that have a discriminatory effect based on race (without proof of the state’s intentional discrimination), this statute might have difficulty in the current Supreme Court.
Separately, Congress has the power under Article I, section 4 to regulate the “time, places, and manner” of congressional elections, but this power does not extend to determine who is eligible to vote in congressional elections. The Court confirmed this how-versus-who distinction in Arizona v. Inter Tribal Council.
Perhaps there is a constitutional argument or analysis that I’m missing. Having students evaluate the relevant constitutional issues would be a good exam question in an Election Law class, I think. But I’m not sure that limiting the scope of this statute to federal elections helps its constitutionality. By the way, the power of Congress to regulate the “time, places, and manner” of congressional elections under Article I does not extend to presidential elections under Article II. From the perspective of federal constitutional law, I’m not sure there is a difference between presidential and gubernatorial elections concerning which legislature–Congress or a estate’s–has the authority to eliminate felon disenfranchisement. (To be clear, as a policy matter, I’m adamantly opposed to felon disenfranchisement for multiple reasons, including its blatant racially discriminatory effect. But the policy issue is different, at least in my mind, to the constitutional question concerning congressional power.)
New Issue: Fordham Law Voting Rights and Democracy Forum
Tired of the 24 hour news cycle? Check out the final issue of the inaugural Fordham Law’s Voting Rights and Democracy Forum. With articles written by both established scholars in the field and JD candidates, it is a refreshing change of pace. Richard Briffault argues that New York’s first round of independent redistricting was an “epic fail.“
“In 2014, following passage in two successive legislatures, New York voters ratified amendments to the state constitution to change both the process and substantive rules governing the decennial redistricting of the state’s legislature and congressional delegation. . . . . Sadly, the new process employed in the 2022 redistricting was an epic fail. This Essay examines the first test of this new constitutional procedure and contends that the IRC, the state legislature, and the subsequent judicial intervention, all flunked it.”
Other crisp and timely articles in the volume include:
“Lawsuit alleges lifetime jury ban harms Black New Yorkers and undermines democracy”
Brigid Bergin (Gothamist) reports on a recently filed federal class-action suit challenging the constitutionality of a New York state law that bars felons from jury service. The suit argues that jury service is a critical democratic practice, and that New York’s lifetime ban “dilutes the voting strength of Black citizens on juries, an institution that is fundamental to democratic self-government and the administration of justice.” The law also “’perpetuates a vicious cycle’ where Black people are underrepresented on Manhattan juries and overrepresented among people with felony convictions.”
The named plaintiff is 44 year-old, public defender, Daudi Justin, who “at least a dozen times each month represent[s] clients faced with misdemeanor charges” in Manhattan Criminal Court. Yet, he is legally barred from serving on a jury. Justin was convicted of a felony when he was 31 years old, served nearly two-years in state prisons, and then went back to get his BA from Columbia University (starting at community college) and now holds a JD from CUNY.
The suit was filed by the New York Civil Liberties Union and Clarick, Gueron, and Reisbaum. As a historical matter, the argument that jury service should be understood as a political right is completely right. As I have written, at the founding and through the early 19th century, jury service was a central political practice, and jury nullification was understood as a critical check on unconstitutional laws.