Felon voting rights issue back at Court
The deepening controversy over denial of voting rights to those convicted of serious crimes — an issue that has split the Circuit Courts in recent years — is back at the Supreme Court, in an appeal challenging a Florida law. The petition for certiorari in Johnson v. Bush, Governor of Florida (docket 05-212) was filed a week ago by attorneys with the Brennan Center for Justice in New York.
The Supreme Court twice passed up review of that issue last Term, refusing in November to hear cases from Washington State and New York State. But there were good reasons for the Court not to get involved in either of those cases at that point: the Washington case had been sent back by the Ninth Circuit to a District Court for further fact-finding, and the New York case came to the Court amid clear indications that the Second Circuit was going to grant review of that case en banc if the Supreme Court refused to review a panel decision.
The Washington case (Farrakhan, et al, v. Locke, et al.) returned to U.S. District Court and is now scheduled to go to a non-jury trial in Spokane beginning next March 6. (In the District Court, it is docket 96-76). The en banc Second Circuit held a hearing on the New York case (Muntaqim v. Coombe, Circuit docket 01-7260) on June 22, and a decision is pending.
The Brennan Center for Justice had urged the Supreme Court not to hear the issue last Term, suggesting that the Justices instead await an en banc ruling by the Eleventh Circuit in the Johnson case (Circuit docket 02-14469).
That Court issued its ruling in that case on April 12. It decided that it does not violate the Fourteenth Amendment’s guarantee of equality for a state to deny those convicted of felons the right to vote, and to withhold that right even after they have completed their sentences. That part of the 12-judge decision produced only one dissent. The Court said that, even if an original 1868 ban on felon voting was motivated by racial bias, that was cured when Florida adopted a new and “markedly different” version of the ban in 1968.
Over two dissents, the Eleventh Circuit ruled that Congress did not intend the Voting Rights Act, and its protection in Section 2 of minorities’ voting rights, to apply to felon disenfranchisement laws. That part of the ruling conflicts with an earlier decision by the Ninth Circuit in the Washington case.
The Johnson appeal presents these two questions:
“1. Is a permanent felony disenfranchisement provision — like all other voting qualifications — subject to challenge under Section 2 of the Voting Rights Act on the ground that it results in a denial of the right to vote on account of race?”
“2. When a provision was enacted by a state for the purpose of disqualifying otherwise eligible black voters, and it has disenfranchised blacks at twice the rate of others for more than one hundred years, does the state bear the evidentiary burdens of production and persuasion in proving that it reenacted the provision for an independent, nondiscriminatory reason sufficient to purge its unconstitutional taint?
The Supreme Court has twice confronted felon disenfranchisement controversies in the past, but the last time was in 1986, in Hunter v. Underwood. A prior decision came in 1974 in Richardson v. Ramirez.
The dispute has intensified in recent years, as liberal advocacy groups have stepped up a litigation, lobbying and public relations campaign attempting to link the denial of voting rights to the race of individuals caught up in the criminal justice system, and thus facing the loss of voting rights if convicted. It is estimated that more than a third of all disenfranchised felons are black and that, if a current trend continues, the rate of disenfranchisement of black men could reach 40 percent in the states that have such laws.
Only two states, Maine and Vermont, allow convicted felons to vote.
Petition for Cert Filed in Florida Felon Disenfranchisement Case: WWRD (What Would Roberts Do)?
Lyle Denniston (of SCOTUSBLOG) offers this useful post on the status of Johnson v. Bush (upholding Florida’s felon disenfranchisment law against constitutional and Voting Rights Act section 2 challenges) and similar cases in the Second and Ninth Circui…
Comment by Election Law — August 16, 2005 @ 8:49 pm
Indiana allows convicted felons to vote, except while they are actually incarcerated. See Ind. Code 3-7-13-4 through 3-7-13-9.
Comment by Darren Bedwell — August 17, 2005 @ 3:24 pm
The reference to Maine and Vermont in Lyle’s post appears to refer to states that allow felons to vote even while they are in prison. Darren is correct that other states disenfranchise felons during their sentence but restore the right to vote upon completion. The New York law at issue in Muntaqim is of this type.
It’s an important difference. With the lifetime laws, I can at least see the argument, although I think the question is ultimately for the legislature to decide. How anyone can argue with a straight face that a convicted murderer has a constitutional or civil right to vote while still in prison just astonishes me.
Here is an amicus brief in the Muntaqim case, filed on behalf of the widow and daughters of the police officer murdered by Muntaqim, along with the Criminal Justice Legal Foundation (my organization) and the Center for Equal Opportunity. http://www.cjlf.org/briefs/Muntaqim.pdf
Comment by Kent Scheidegger — August 17, 2005 @ 11:46 pm
The phrase “felon” voting rights is a bit of a misnomer. The Voting Rights community, including folks at the Brennan Center are now referring to this movement as “felony” disfranchisement. For the most part, the argument is not that felons should be able to vote. Rather they are advocating that ex-felons- individuals who have served their time and are contributing members of society- should be allowed to vote.
Comment by Anon — August 18, 2005 @ 2:14 pm
I’m not sure how Anon judges what the argument “for the most part” is, but the Brennan Center did in fact file in support of the currently incarcerated Muntaqim, in opposition to the New York law
http://www.brennancenter.org/programs/dem_vr_lit_muntaqim.html
Whether a person convicted of a felony who has completed his sentence but has not been pardoned is properly referred to as a “felon” or an “ex-felon” is a semantic issue on which there is considerable disagreement.
Comment by Kent Scheidegger — August 18, 2005 @ 4:47 pm
The only states that disenfranchise everyone convicted of a felony for life are Florida, Kentucky, Alabama and Virginia.
Comment by ohwilleke — August 18, 2005 @ 5:08 pm
oh will eke (is that one name, or three?) is right, I believe.
In Pennsylvania, for example, you can vote at any time at all (even while in prison awaiting trial) except while _actually serving time in prison_ for a felony. That is, pre-felons, post-felons, early-released felons, unadjudicated felons, these folks can all vote.
I would think that once you are convicted and sentenced, even if appeals are pending, your vote might rationally be put on hold. But otherwise, removal of voting rights draws fairly serious scrutiny- or should.
Comment by Eh Nonymous — August 19, 2005 @ 12:34 pm
Unless and until a felony conviction is a bar to U.S. citizenship, it should follow that such a conviction never bars people from voting. People with felony convictions are considered citizens in all other respects and are allowed the vote in Maine, Vermont and Canada, even while incarcerated.
Comment by Eddie Ellis — August 26, 2005 @ 5:38 pm
Convicted felons pass through three stages in the criminal justice system before their sentence is completed: prison, parole, and probation. Some states (AL, FL, KY, VA) deny them the vote even after completing the last stage (i.e. permanently), some (ME & VA) allow them to vote throughout the entire process, and other states take away their vote when they are convicted but give it back after the first, second, or third stage. There’s a map here, although it’s not entirely up-to-date (e.g. it still has Iowa as a state with permanent disenfranchisement). There are also a couple extra wrinkles. Some states have different policies for different felonies, some states reinstate the right to vote a fixed amount of time after completing a stage, and in some states felons at certain stages can petition to get their voting rights back even though they are not automatically re-enfranchised.
Comment by Dan — September 22, 2005 @ 1:37 pm
Supreme Court Election Law Preview
The Supreme Court currently has no oral arguments scheduled in election law cases, but that could soon change. At least four significant cases are working their way toward consideration by the Court. Here is a summary and some predictions: Vermont…
Comment by Election Law — September 26, 2005 @ 4:51 pm
Supreme Court Election Law Preview
The Supreme Court currently has no oral arguments scheduled in election law cases, but that could soon change. At least four significant cases are working their way toward consideration by the Court. Here is a summary and some predictions: Vermont…
Comment by Election Law — September 26, 2005 @ 6:08 pm