Viewpoint, Voting, and Structuring the Electorate

I am delighted to join the blogging community of Concurring Opinions for the month of April.  Thanks to Solangel Maldonado and Daniel Solove for their gracious invitation.

Denying voting rights to citizens with felony convictions has gotten a bad rap. The reason it’s not worse is because that rap is based on only half the story.  Anyone familiar with the complexion of our prison population knows that felon disfranchisement laws extend striking racial disparities to the electoral arena.  Less known, however, is that citizens with felony convictions are excluded from the electorate, in part, because of perceptions about how this demographic might vote or otherwise affect the marketplace of ideas.  In other words, citizens with felony convictions are denied the right to vote because of their suspected viewpoint.

Picking up on this point earlier this year, Michael Dorf highlighted a dispute between Republican presidential candidates Mitt Romney and Rick Santorum about which of them held the most conservative position concerning the voting rights of citizens convicted of a felony.  Inventing a criminal persona named Snake, Dorf queried what issues might provoke such a person to vote: Lower protections for private property or public safety? Redistribution of public resources from law enforcement to education, health, or recreation?  Elimination of certain criminal laws?  I can fathom many other lawful motivations for voting.  However, as Dorf points out (and decidedly rejects), the underlying objection to allowing citizens with felony convictions to vote is based on an assumption that, if they could vote, they would express self-serving and illegitimate interests. In other words, the viewpoint that felons would express through voting has no place in the electoral process.

I have always assumed that my viewpoint was precisely what I and other voters are supposed to express at the ballot box.  Whether that viewpoint is shared, accepted, condoned or vehemently disdained and abhorred by others is irrelevant to the right to vote.  Not so for citizens with felony convictions.  This group of citizens is presumed to possess deviant views that justify their exclusion from the electorate and the denial of a fundamental right.

In his dissent in Richardson v. Ramirez which held that § 2 of the Fourteenth Amendment implicitly authorizes states to deny voting rights based on a felony conviction, Justice Marshall exposed this fear of “subversive voting.”  He surmised that the California statute at issue resulted from a concern that the “likely voting pattern [of citizens with criminal convictions who had completed their sentences] might be subversive of the interests of an orderly society.”  These ideas echoed from an earlier Second Circuit case, Green v. Board of Elections, brought by a defendant convicted of conspiring to teach and advocate the overthrow and destruction of the government.  In defending New York’s felon disfranchisement statute, the court articulated a clear subversive voting rationale rooted in viewpoint discrimination:

[I]t can scarcely be deemed unreasonable for a state to decide that perpetrators of serious crimes shall not take part in electing legislators who make the laws, the executives who enforce these, the prosecutors who must try them for further violations, or the judges who are to consider their cases. . . . A contention that the [Constitution] requires [a state] to allow convicted mafiosi to vote for district attorneys or judges would not only be without merit but as obviously so as anything can be.

These cases demonstrate that the fear of how these citizens would vote and the impact of their vote is what motivated the legislature to restructure them out of the electorate.  If this strikes you are odd, you are in good company.   The Supreme Court held in Carrington v. Rash that “‘[f]encing out’ from the franchise a sector of the population because of the way they may vote is constitutionally impermissible.”  Moreover, this principle was reinforced in several voting qualifications cases from the late 50s through early 70s in which states attempted to structure the electorate based on the perceived viewpoint of would-be voters.  The Court later established in Romer v. Evans that the right to vote cannot be denied because of what a voter is advocating—in other words, for viewpoint.  However, the Court has yet to extend this principle to citizens with felony convictions.

With all this talk about expression and viewpoint, surely someone must be asking whether the First Amendment has any role to play here.  I think it does.  In a recent article, I argue that felon disenfranchisement is motivated, in part, by a form of viewpoint discrimination that ascribes an anti-social, criminal-minded political consciousness to citizens with felony convictions.  Felon disfranchisement laws should be reconsidered under the equal protection clause and informed by First Amendment values.  One possible avenue for reconsidering the constitutionality of felon disfranchisement laws and their impact on the structure of the electorate is the theory of First Amendment Equal Protection, a discrete dimension of Equal Protection jurisprudence that is informed by First Amendment values.  While there has been some recognition of the First Amendment’s relevance in the area of partisan redistricting and certain other areas of election law, the First Amendment has not yet been held to inform voter qualification challenges and the legislative tampering with the structure of the electorate that these laws afford.  However, in the same way that redistricting permits incumbents to draw undesirable voters out of their districts, felon disenfranchisement laws allow legislatures to excise from the electorate a group of citizens that does not represent the status quo, the vast majority of whom are marked by the intersection of race, class, and low socio-economic status.  Pippa Holloway’s essay, Race and Partisanship in Criminal Disfranchisement Laws: Antecedents of the 2000 Election Controversy in Florida, featured here, provides a historical account of felon disenfranchisement practices maintained for both partisan and racial motivations.

Of course, other laws, most notably voter identification laws about which I hope to write in future posts, also shape the electorate in profound ways.  Felon disfranchisement is particularly vexing, however, because it involves the intersection of two historically discriminatory systems—the electoral and penal systems—as well as two constitutional provisions that protect the value of equality.  This new viewpoint on felon disfranchisement advances John Hart Ely’s notion that “[n]ot everything that was assumed to be constitutional in 1868 remains immune to the Equal Protection Clause (assuming it ever was) and Section 2 [presumed by Richardson to permit felon disfranchisement] says nothing stronger on the subject of denying felons the franchise than that in 1868 it was assumed to be constitutional.”  It is time to challenge this presumption in the face of justifications that contravene core equality principles of both the First and Fourteenth Amendments.  It is also time to have enough confidence in our electoral process not to be afraid to hear what folks like Snake have to say.

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14 Responses

  1. Brett Bellmore says:

    It’s hard to come up with a response to this, beyond, “Yes, so what?” Felons are presumed to have alienated themselves from the polity, this is the basis of felon disenfranchisement, and it has been all along. You’ve identified what everybody knew, and most people think reasonable. You can repeat this all you like, and most people will continue to think it reasonable.

    If there’s a problem with felon disenfranchisement today, it’s not with the idea that felons should be disenfranchised. It’s with the notion that so many things should be felonies. The concept made much more sense when felonies were presumptively malum in see, and thus demonstrated some moral failure on the part of the felon.

    Now that you can commit a felony out of simple ignorance of a regulation, maybe we have a problem. But it’s a problem with what we’re making felonies, not with disenfranchisement.

  2. Erica Goldberg says:

    I think the connection between felon disenfranchisement and the First Amendment has a lot of purchase. Great blog. It’s always struck me as odd that more people are not more incensed about this issue, but the fact that most people think it reasonable does not make it constitutional. The fact that felons may evince anti-establishment viewpoints is more reason to ensure that their minority views are protected and given extra solicitude under the First Amendment.

  3. Brett Bellmore says:

    But outrage isn’t an argument. What I see here is an essay which is long on outrage, but short on reasons why anyone who doesn’t already share that outrage should change their minds.

    What’s lacking here is any explanation of why, to put the case strongly, pedophiles have anything important to contribute to the selection of school boards, that we should be upset they’re denied that input.

    Now, I have no doubt that such an argument could be constructed. Starting, presumably, with the vast expansion of malum prohibitum offenses, and abandonment of mense rea requirements, so that being a felon no longer implies some sort of moral deficiency.

    But you’ve got to make that case. Stating that it’s viewpoint based disenfranchisement, (But it’s not, I can vote and advocate drug legalization, and do, because I haven’t been convicted of anything.) just doesn’t make the case.

  4. Janai S. Nelson says:


    I appreciate your comment. However, I challenge the premise that felons “have alienated themselves from the polity”. Citizens convicted of felonies have demonstrated one thing–that they likely committed and were caught violating a criminal law. This fact bears no relation to their desire or ability to positively contribute to the electoral process. Indeed, your concern about over-criminalization is an argument in favor of felon voting. Who better than the citizens who run afoul of the law to help identify which laws, by your admission, should not be felonies? Moreover, it’s not clear that most people believe such laws are reasonable. There is growing support for ex-felon voting as demonstrated by the fact that roughly half of all states have enacted reforms in this area in the past 15 years. Viewpoints concerning felon disfranchisement are changing slowly and will hopefully evolve more quickly as we continue to unpack the full breadth of constitutional principles it transgresses.

  5. Ken Rhodes says:

    I do not understand the whole issue, and I doubt I will be convinced to change my mind on this point:

    Convicted felons now serving their sentence, previously convicted felons now free because they have completed their sentence, secret felons who have never been detected … what’s the difference as regards casting a vote? If their citizenship is revoked, they can’t vote. If their citizenship has not been revoked, what reason is there to think their vote is less well-informed, less valuable in the consensus, or less important in the “every citizen gets one vote” concept of our system? Should we no longer let communists vote? What about polygamists? Aren’t they likely to vote for the candidates and referenda that we consider counter to our own ideas? Isn’t that opportunity to disagree at the polls central to our system?

    And that proposed example of a pedophile voting for school board candidates is IMO a counter-example to the exact point it was attempting to make. What does ANYONE among us have to contribute to that obscure election, the selection of school boards? Shouldn’t we hope our citizens who take the trouble to vote in that sort of election are somewhat knowledgeable about the issues, instead of merely voting for the candidate who seems attractive when their pictures are run in the newspaper? Who, after all, is more likely to be knowledgeable about the ways schools are run, and more interested.

    Brett has made what I believe to be the key point in this whole discussion: The prohibition against felons voting is because they have, presumably with free will, alienated themselves from us. (a) They are considered by the rest of us to be, prima facie, bad people, which we know not because they were accused, or because they were smeared in the tabloids, but specifically by the fact that they were tried and convicted, and (b) it is (collectively) our intention that because of (a) they should forfeit a privilege of their citizenship. All that other stuff about their qualifications to vote, or their possible motivations, thus influencing the value of their vote in our political process, is IMO a smokescreen of words to conceal the truth–that we are angry at them and we don’t like them and we don’t think of them as “one of us,” so we simply don’t want them voting in *our* elections.
    ::end rant::

  6. Brett Bellmore says:

    See, that’s an actual argument.

    In actuality, I believe a felon who has done their time should be restored ALL their civil liberties, not just the vote. While we really need to start scaling back what we call “felonies”.

    But let’s not overstate this: While a great many felonies have no moral dimension, and tell us nothing about whether the person who committed them can be considered either morally depraved, or an enemy of the public, this can’t really be said of all felonies.

    And there is a serious question as to whether somebody who’s decided they don’t have to obey laws they don’t like should have any say in what the law is. In that sense they HAVE aliented themselves from the polity.

  7. Brett Bellmore says:

    No, Ken, the argument is that as bad people, they will vote with malign intent, contrary to the interests of their fellow citizens. For instance, an arsonist has no interest in an effective fire department. A rapist no interest in effective enforcement of laws against rape.

    It’s an argument which if flawed because so many felonies lack any real moral dimension anymore, but it’s a serious argument, which persuades many people, and you can’t just blow it off.

  8. JoeJP says:

    Brett hedges some but seems to be saying that the current policy is overinclusive, the fit between a “felony” and the “alienation from society” not enough given the overcriminalization in place, particularly after the person served their time.

    His comments go too far themselves. Who is to know that an arsonist has “no interest” in an effective fire department? Or a rapist in effective enforcement against rape? Like a citizen who fudges on their taxes, they might not want to be caught but they still have ‘some interest’ in such things. A date rape doesn’t mean the rapist wants his daughter to be raped, after all.

    The bottom line is that after the person served their time, putting aside the two states that allow people to vote in prison, they should be allowed to vote. They are allowed to be members of the public in any number of ways. The benefits of allowing such people to be full members outweighs the minimum threat that one vote of “malign intent” (something many non-felons have) will be an issue.

  9. Brett Bellmore says:

    Perfect knowledge is impossible, of course. But the reasoning behind felony disenfranchisement is not irrational, at least in the case of genuinely serious felonies, especially repeat offenders. It is, however, reasoning better suited to a legal system which is not quite so free with the “felony” label.

    In case it was unclear, I was attempting to sharpen Janai’s argument, which I found rather on the weak side.

  10. JoeJP says:

    Voting is a fundamental right. When fundamental rights are at stake, removing them should require more than some “rationality” behind it. It should be a close fit.

    Over our history, repeatedly, we did not have a close fit. We generally always were “so free” with the “felony” label, particularly hurting people of a certain race or class.

  11. Brett Bellmore says:

    Voting is actually a considerably less fundamental right than, say, freedom of speech. Not, you know, being mentioned in the Bill of Rights, or anything like that. Not being possessed in any degree by minors, or exercisable by aliens.

    Being more in the nature of a civic duty than a personal right.

    Rights considerably more fundamental are routinely stripped for far lesser excuse; For instance, you can lose your 2nd amendment rights over a misdemeanor, not a felony. A misdemeanor that happened 50 years ago. Because of a plea agreement entered into because the fine for the offense was cheaper than hiring a lawyer, then fifty years later the Lautenberg amendment gets passed, and no more 2nd amendment rights.

    Or as a result of a protective order issued without any recourse to a jury trial. Somebody can just go to a judge, assert that you’re a danger to them, and presto! you don’t have 2nd amendment rights anymore.

    Things often defended by the very people who go on about how outrageous felon disenfranchisement is, BTW.

    But a multiple rapist? It would be an outrage if he can’t vote.

    You’re in fact entitled to be outraged over whatever outrages you, but as a matter of rhetoric, I’m simply recommending here that arguments not be premised on the assumption that outrage is necessarily widely shared…

  12. JoeJP says:

    Brett, if you are concerned about the BOR, perhaps the 9A should be noted while you disparage a right not expressly listed.

    Voting is fundamental to the republican system of government. It is not merely a “civic duty,” in fact, you don’t actually have to do it unlike when you are called to jury duty. As noted back in 1886:

    “Though not regarded strictly as a natural right, but as a privilege merely conceded by society according to its will under certain conditions, nevertheless it is regarded as a fundamental political right, because preservative of all rights.”

    I don’t think 50 year old misdemeanors should result in stripping of voting rights either. As to protective orders, unlike voting, there is more of a direct, immediate possibility of harm there. That would be akin to stripping voting rights in relation to some voting law breach. If wrong, it is of a different caliber.

    The right to vote is not only stripped by “multiple rapists” and that isn’t the basis of the passion of the concern. You know this, one assumes. It is the system in place — a broad based disenfranchisement, which you yourself oppose. Potshots therefore seem rather petty.

    We let rapists out of prison at some point, often even multiple rapists, even though they might be tempted to rape again. Though it is not the point, yes, it seems pretty petty to allow that but not allow them to vote.

  13. Ken Rhodes says:

    “Voting is actually a considerably less fundamental right than, say, freedom of speech. Not, you know, being mentioned in the Bill of Rights, or anything like that.”

    Well, it’s correct to state voting is not mentioned in the Bill of Rights.

    But “…or anything like that?” Hmmm…15, 19, 24, and 26 are “something like that,” and are today part of the Constitution. So the judgment of “less fundamental” may mean “not so early guaranteed, historically” I suppose, but it doesn’t mean “less important in the Constitution we live under today.”

  14. Christian W says:

    I could see there being a case for restriction of voting privileges if the felony conviction was directly connected to a voting crime.

    Otherwise – its clear after penance and restitution to society have been remitted, all civic rights should persist.

    Janai makes an extremely important point.