Saturday, May 19, 2012
Felon disenfranchisement is a US reality that conlawprofs from non-US constitutional democracies can find a bit startling. Its justifications are many, but Professor Janai Nelson considers whether the real motivation isn't "viewpoint discrimination" and if so, whether it is susceptible to constitutional challenge.
In The First Amendment, Equal Protection, and Felon Disfranchisement: A New Viewpoint, forthcoming in Florida Law Review, available on ssrn, Nelson considers cases regarding viewpoint discrimination in voting regulations, and examines the justifications for felon disfranchisement "identifying both the perceived viewpoint that legislatures intend to exclude and the viewpoint that is ultimately excised from the electoral process." She argues:
in the effort to exclude a ―criminal viewpoint, another potential viewpoint, which I term the ―canary viewpoint is excised from the body politic. The canary viewpoint refers to the miner‘s canary whose death signals atmospheric dangers in the mine. In the context of felon disfranchisement, the canary viewpoint results from the intersectionality of race, crime, and low socio- economic status that combine to create the disfranchised population. Random and disparate breaches of the social contract would suggest individual choice rather than systemic group-based causes produce this phenomenon. . . .
Without the benefit of the political participation of those citizens who have failed to uphold the social contract, it is more difficult to understand or attract sustained attention to the root causes of its breach. As a result, democracy functions by silencing those who might signal its failure.
Of course, any constitutional challenge to felon disenfranchisement must confront Richardson v. Ramirez (1974) in which the Court held that § 2 of the Fourteenth Amendment authorized states to deny voting rights based on a felony conviction. Nelson argues that Ramirez does not extend to intentional discrimination in the form of vote denial because of how persons (felons) may vote.