Friday, May 22, 2020
John Crain has posted How Congress Can Craft a Felon Enfranchisement Law that Will Survive Supreme Court Review (Boston University Public Interest Law Journal, Vol. 29, No. 1, 2019) on SSRN. Here is the abstract:
Seldom asked in the course of holding debates and drafting bills, however, is whether Congress has the constitutional power to end the practice of felon disenfranchisement. While Congress’s path may have been straightforward had it passed a felon enfranchisement law in 1965 or 1970, when the Supreme Court afforded near-total deference to Congress’s powers over the franchise, the path is winding and pitted after three decades of federalist testing and paring back of those powers. If Congress attempts to end felon disenfranchisement, litigation over the law might become the next battleground for the Supreme Court’s federalist doctrine, hotly litigated in recent years in such cases as Shelby County v. Holder.
No solution to the federalist challenge offers clear promise. There are three possible bases for a Congressional enactment: (1) the Elections Clause of Article I, permitting Congress to set the “time, place, and manner” of federal elections; (2) the power to enforce the Fourteenth Amendment’s Equal Protection Clause; (3) and the power to enforce a franchise free of race discrimination under the Fifteenth Amendment. But recent case law rules out the Article 1 solution, and whether the enforcement powers may be useful is uncertain given the holding of Richardson v. Ramirez that the constitution does not protect the voting rights of convicted felons.
Nevertheless, with some cleverness and close attention to the Court’s precedents, Congress may overcome these obstacles to its enforcement powers. This Article posits that the overbreadth, severity, and lack of legitimate government interest in permanent felon disenfranchisement makes permanent disenfranchisement, still practiced in several states, an appropriate target for Congress’s Equal Protection enforcement powers. Congress should be able to mandate universal re-enfranchisement at the end of a felon’s prison and parole term. As for the Fifteenth Amendment, it is doubtful that the Court would accept findings that all felon disenfranchisement is racist, and so Congress should focus instead on laws like drug possession or burglary with proven racial disparities. Once focused on these targets, Congress could either ban disenfranchisement for certain crimes outright, or create a cause of action, akin to section two of the Voting Rights Act, that would permit plaintiffs to prevail by showing proof of racial impacts (rather than the racist intent of state actors).