Thursday, November 4, 2010
Who voted this week? Certainly not persons convicted of felonies who owe child support in Tennessee.
In a split-panel opinion issued by the Sixth Circuit in Johnson v. Bredesen, the court upheld Tennessee's felony disenfranchisement law. The statute disenfranchises persons convicted of felonies, allowing the right of suffrage to be restored upon receipt of a pardon, discharge from custody after serving the maximum sentence imposed, or final discharge by the relevant county, state, or federal authority. However, as the Sixth Circuit explains, the statute, "carves out two exceptions to re-enfranchisement eligibility":
(b) . . . a person shall not be eligible to apply for a voter registration card and have the right of suffrage restored, unless the person has paid all restitution to the victim or victims of the offense ordered by the court as part of the sentence[, and]
(c) . . . a person shall not be eligible to apply for a voter registration card and have the right of suffrage restored, unless the person is current in all child support obligations.
The major arguments of the challengers is that these exceptions violate the Equal Protection Clause and the Twenty-Fourth Amendment, but they also argue the Ex Post Facto and Privileges or Immunities Clauses of the United States and Tennessee Constitutions.
On the equal protection claim, the majority applies rational basis, rejecting the contention that strict scrutiny should be the standard for reviewing a statute restricting the fundamental right to vote: "The state may, within the bounds of the Constitution, strip convicted felons of their voting rights," and thus having "lost their voting rights, Plaintiffs lack any fundamental interest to assert." Applying rational basis, the panelfound that "the state’s interests of encouraging payment of child support and compliance with court orders, and requiring felons to complete their entire sentences, including paying victim restitution, supply a rational basis for the challenged statutory provisions sufficient to pass constitutional muster."
On the Twenty-fourth Amendment claim, the majority concludes that the right to vote is not being abridged for "failure to pay any poll tax or other tax," reasoning again that the Tennessee statute "does not deny or abridge any rights; it only restores them."
In a lively and lengthy dissent, Circuit Judge Karen Nelson Moore argues that while Tennessee "may curtail a felon’s right to vote, or even forever deny it, but once a state enacts a process by which a felon may regain suffrage, that process must comport with the demands of the Constitution." She concludes that the statute violates the Equal Protection Clause of the U.S. Constitution and the Ex Post Facto Clause of the Tennessee Constitution, and believes that "the Plaintiffs have alleged sufficient factual matter to state a claim for relief under the Twenty-Fourth Amendment to the U.S. Constitution such that dismissal on the pleadings was improper."
Law students looking for a good journal note might consider this opinion. There is some solid analysis and trenchant writing in both the majority and dissent, and the linking of child support arrearages to voting raises a host of social issues.
[image from Cornell University Collection Political Americana via]