Scott Forsyth, BridgeTower Media Newswires
Last November, 6.1 million adults did not vote, not because of a lack of interest, but because they were disqualified due to a felony conviction. Some 75% of the adults were no longer under the supervision of the correction system. They had reentered society or were in the process of reentering. Yet the 75% were denied one of the most important features of being an engaged citizen — voting in a presidential election.
Laws disqualifying felons from voting disproportionally impact minorities. About 2.2 million of the 6.1 million adults are black. As a result, 7.4% of the adult black population is disenfranchised compared to 1.8% of the non-black population. In some states, such as Florida, Tennessee, Virginia, and Kentucky, the black disenfranchisement rate exceeds 20%.
The four states mentioned, and eight others, disqualify some or all felons for life from voting.
Disenfranchisement laws go back decades if not centuries. Like so many other laws, to quote Attorney General Eric Holder, they “echo policies enacted during … a time of post-Civil War repression.” The concept of justice on which they are based was “exclusion, animus, and fear.”
New York is one of the 48 states disenfranchising felons, but not for life. A felon is disqualified from voting while he is in prison or on parole. Elect. Law § 5-106. Once he is out and off parole, he may vote, provided he registers anew. Too many ex-felons residing in New York believe otherwise, that they are disqualified for life, which leads to a form of self-disenfranchisement.
Disenfranchisement laws, including New York’s, have been challenged and all have been upheld. See, e.g., Johnson v. Florida, 405 F.3d 1214 (11th Cir. 2005) (Florida), Hayden v. Pataki, 449 F.3d 305 (2nd Cir. 2006) (New York), and Farrakhan v. Gregoire, 623 F.3d 990 (9th Cir. 2010) (Washington).
Challenges have been mounted under the Equal Protection Clause of the Fourteenth Amendment and Section 2 of the Voting Rights Act. The latter prohibits any voting “standard, practice, or procedure” that “results in a denial or abridgement” of the right to vote “on account of race or color.” 52 U.S.C. § 10301(a).
Courts have rejected the Equal Protection challenge, because the second section of the Fourteenth Amendment, known as the Penalty Clause, permits states to exclude from voting persons who have “participat(ed) in rebellion or other crime.” Other crime means a “felony at common law” or a felony “deeply rooted in the Nation’s history.”
The arguments against the Section 2 challenge are more nuanced.
First, while Congress has the power to prohibit discrimination practices not covered by the Equal Protection Clause, there is no evidence Congress intended Section 2 to reach felony disenfranchisement laws. In fact, one court found an explicit intent not to cover such laws based on the legislative history surrounding another section of the Voting Rights Act.
Second, as explained by the court upholding the New York law, a state has a strong “interest in the administration of prisons.” Hence, it may exclude from voting incarcerated felons. Once released, this interest wanes.
Third, persons in prison “cannot petition, protest, campaign, travel, freely associate, or raise funds.” Since Section 2 ensures voters they can “fully participate in the political process,” the incarcerated fall outside the protections of the section.
But what about the bans for life, like Florida’s, which is embedded in its constitution? The challenges of them were facial, meaning the plaintiffs had to show the laws were unconstitutional in all of their applications. As explained above, denying the right to vote to persons in jail was an application that could be justified.
Furthermore, the most recent case on the subject held that the plaintiffs bringing a facial challenge under Section 2 must prove a state’s “criminal justice system is infected by intentional discrimination or that the felon disenfranchisement law was enacted with such intent.” Farrakhan v. Gregoire, supra. That is a tall order.
Are there still avenues for a challenge? Yes. In the opinion of one expert a subset of felons — those convicted of using or distributing drugs — has a good claim under Section 2.
A disproportionate percentage of the subset is black. Members of the subset are many. The crimes for which they were convicted are new, creations of the “War on Drugs” and not deeply rooted in the nation’s history. The challenge is not facial but as applied, focusing on the “results” of the interplay of criminal law and voting law.
The expert’s theory is waiting to be tested.
Last September another facial challenge of a disenfranchisement law began, this time against Alabama’s. Thompson v. Alabama, No. 2:16-cv-783, (M.D. Ala. Sept. 26, 2016).
Alabama enacted its law first in 1901, during the height of Jim Crow. The law disqualifies from voting persons convicted of felonies “involving moral turpitude.” Moral turpitude is not defined. Each county is left to enforce the law. Needless to say, blacks are disqualified more often than whites, by a 3 to 1 ratio.
The plaintiffs raise several legal issues, in an effort to distinguish their case from the several cases upholding disenfranchisement laws. They do not make an as-applied challenge under Section 2, but the opportunity exists. Instead, they want to invalidate the Alabama law in its entirety.
Vermont and Maine are the two states wherein a person’s criminal history does not affect his right to vote. At last glance they have robust elections. Why cannot New York and the other states follow their example? Maybe Section 2 and/or the Alabama case will act as a nudge.
—————
Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU, but the views expressed herein are his own. He may be contacted at (585) 262-3400 or scott@forsythlawfirm. com.
