The Case for Re-Enfranchisement Reform

In nine U.S. states, representing 96 electoral votes, 72 congressional officials, and 18 senators, felony charges permanently strip United States citizens of their right to participate in state and federal elections.  This amounts to nearly 6 million American citizens being placed on the fringe of society, observing their nation without engaging, leaving them unable to enact change or participate in America’s collective future. 

Despite polls indicating that the majority of Americans support voting rights for felons, local and state officials have repeatedly failed make headway on the issue, and in some cases have blocked it entirely[1]. With razor-thin federal election margins and clear racial demographic asymmetry amongst the felon population, the question of whether or not felons can vote is a decisive one for the future of our country. The fact, then, that this issue is left to states and the officials whose jobs are tied to the electorate, is a clear violation of the separation of powers.

While not officially part of the constitution, separation of powers has long been a staple of American democracy. So fundamental is the principle that the executive, legislative, and judicial branches must impose checks and balances on each other’s power, that when James Madison proposed an amendment in his Bill of Rights to make the separation of powers explicit, his fellow members of congress thought the amendment too redundant to include.

 Now imagine a world in which the legislative branch gets to decide whose vote counts and whose does not. These legislators would be able to silence the voters that disagree with them, and increase the sway of their own supporters. This possible abuse of power is exactly why we have a system of checks and balances. The fact that state legislatures have full discretion when it comes to voter re-enfranchisement is thus clearly in breach of this fundamental principle. 

Florida is a prime example of how such power can and will be abused to limit the voice of US Citizens. Florida has over 1.6 million disenfranchised residents, making it the state with the largest such population. In 2018 nearly 65 percent of Florida voters approved Amendment 4 which was slated to restore voting rights to as many as 1.4 million Floridian felons.[2] Yet, a large portion of those Floridians did not vote this November. Not one year later, on June 28, 2019, Gov. Ron DeSantis signed Senate Bill 7066, prohibiting these returning citizens from voting unless they pay off all legal financial obligations (LFOs)[3]. Prisoners in this country overwhelmingly skew towards black males who tend to vote democratic.  DeSantis won his gubernatorial race against a black male democrat in 2019 by 33 000 votes, or by just under 0.4%.[4] Besides clearly being in violation of the 24th amendment, this scenario demonstrates precisely why the system we have now is dangerous. [5][6] The incentive for legislators, state and federal, to determine who gets to vote is just too great. 

This exact argument against this sort of legislative power was given in a 1959 opinion of the court delivered by Justice William O. Douglas. In the majority opinion of Reynolds, Judge v. Sims, Douglas states that “any unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative government” and that “statutes granting the franchise to residents on a selective basis always pose the danger of denying some citizens any effective voice in the governmental affairs which substantially affect their lives”. Douglas here immortalizes the inherent conflict of interests the country is faced with then legislators are the one to decide on suffrage rights. Douglas finishes the opinion by stating “ for these reasons, the difference usually given to the judgment of legislators does not extend to decisions concerning which resident citizens may participate in the election of legislators and other public officials. . . . the general presumption of constitutionality afforded state statutes and the traditional approval given state classifications if the Court can conceive of a ‘rational basis’ for the distinctions made are not applicable.”[7] Douglas’s opinion clearly demonstrates the hypocrisy of allowing elected officials to decide voting laws due to their conflict of interest. Moreover, Douglas opines that even the traditional role of the courts in cases of suffrage law may prove ineffective, especially given that being positions appointed by elected officials, they also have a vested interest in who is allowed to vote. 

This leaves only the voice of the people directly – a national referendum. A direct democratic vote is the only way to assure that the will of the people and not the will of the legislators is being put into action, which is especially important in this case given 

One might object here to the federalization of voting rights as unconstitutional in deference to the fourteenth amendment. Indeed, there is longstanding legal precedent stemming back to article 2 section 1 of the constitution. Beyond that, the interpretation of Section II of the Fourteenth amendment set forth by Lassiter v. Northampton County Board of Elections, along with the 10th and 17th  amendments, thoroughly establishes that states have broad powers to determine the conditions under which the right of suffrage may be exercised.[8]

However, when it comes to practices that have an outsized impact on specific races or demographics, it is also the 14th amendment that demonstrates the unconstitutionality of such an act. The evidence is overwhelming that black and minority voters are more likely to spend time in prison and have felony charges than their white counterparts. In accordance with Justice Douglas’s opinion, and the fundamental balance of power the constitution extols, the right of suffrage must be universal and the limit of legislators’ powers when it comes to governing lies exactly at the decision on who gets to participate in the election of these legislators. For decades, states used gerrymandering and literacy testing to deliberately weaken minority vote strength in the guise of creating a better informed or fairer voting base[9]. While less overt than literacy testing a population deprived of schooling, the fact that incarceration rates for non-white Hispanic Americans are two-times that of white Americans, and black Americans are five-times that of white Americans, gives a clear indication that these policies have an outsized impact on minority voting rights, and thus should fall under a similar purview as the literacy testing and gerrymandering.

This categorization provides us with strong legal precedent for opening a national dialogue on the issue of felon re-enfranchisement. In Gomillion v. Lightfoot, the court ruled that the gerrymandering of Tuskegee county to limit the black vote in city elections was illegal, despite “ the broad power of a State to fix the boundaries of its municipalities,” stating that the state’s right to discretion in this area was limited by the 15th amendment.[10] A similar argument can be made for disenfranchisement – in the purview of voting rights with heavy racial disparities, states rights are limited in this regard thus elevating re-enfranchisement to a federal level. 

A similar result was reached on a similarly discriminatory practice – literacy testing as a prerequisite for voting. From the 1890s through the 1960s, the majority of black citizens in the south were effectively disenfranchised by these literacy tests, and it was only when federal legislation – namely the Civil Rights Acts of 1964 and the Voting Rights Act of 1965 - outlined the outsized impact literacy testing had on black voters that caused the process to cease. Black voter registration for the 1960 presidential election was 5 million. In 1964, it was nearly 12 million.[11]

Today, federal elections are routinely decided by only a couple thousand votes. Meanwhile, we have hundreds of thousands of former prisoners who have been accepted by their fellow citizens back into society, and yet who have to remain silenced. The power legislators have to decide who votes and who doesn’t violates the principle set forth by the separation of powers, and allows for the systemic silencing of minority populations. It should be up to the American people to decide who we think should vote for federal offices, not those who are vying for these very positions.

References

[1] "The Florida Senate," Senate Bill 7066 (2019) - The Florida Senate,  accessed November 12, 2020, https://www.flsenate.gov/Session/Bill/2019/7066)

[2] "Voting Rights Restoration Efforts in Florida," Brennan Center for Justice, accessed November 12, 2020, https://www.brennancenter.org/our-work/research-reports/voting-rights-restoration-efforts-florida)

[3] "The Florida Senate," Senate Bill 7066 (2019) - The Florida Senate, |PAGE|, accessed November 12, 2020, https://www.flsenate.gov/Session/Bill/2019/7066

[4] "Florida Governor Election Results: Andrew Gillum vs. Ron DeSantis," The New York Times, March 6, 2019, accessed November 12, 2020, https://www.nytimes.com/elections/results/florida-governor)

[5] Section 1 of the 24th amendment states “The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.

[6] "The 24th Amendment of the U.S. Constitution," National Constitution Center – The 24th Amendment of the U.S. Constitution, 4, accessed November 12, 2020, https://constitutioncenter.org/interactive-constitution/amendment/amendment-xxiv)

[7] Kramer v. Union Free School Dist., 395 U.S. 621, 626–28 (1969).  

[8] " Lassiter v. Northampton County Board of Elections." Oyez. Accessed November 12, 2020. https://www.oyez.org/cases/1958/584.

[9] "Shaw v. Reno." Oyez. Accessed November 12, 2020. https://www.oyez.org/cases/1992/92-357; Schnell v. Davis

[10] "Gomillion v. Lightfoot." Oyez. Accessed November 12, 2020. https://www.oyez.org/cases/1960/32.

 [11] Alan Flippen, "Black Turnout in 1964, and Beyond," The New York Times, October 16, 2014, 3, accessed November 12, 2020, https://www.nytimes.com/2014/10/17/upshot/black-turnout-in-1964-and-beyond.html)