[EL] Ex-Felon Voting Rights Bill

Fri Apr 11 15:40:56 PDT 2014

Hi Derek,

I'm not sure that I agree with your statement that the enforcement
provisions of the 14th, 15th (etc.) Amendments "do[] not necessarily . . .
 empower Congress to enforce qualifications regarding felon status."  You
are correct that Supreme Court effectively gutted Congress's authority over
voter qualifications in *Arizona v. Inter Tribal* based on Article I,
Section 2, but it left untouched Congress's authority to "enforce" the
voting-related amendments "through appropriate legislation."  If Congress
finds that there is a link between felon disenfranchisement and inequality
on the right to vote (based on race, or just under the Equal Protection
Clause more generally), then it can act accordingly to "enforce" that
protection.  Stated differently, what (in my view) the Court
overlooked in *Arizona
v. Inter Tribal *is that Congress's authority to regulate voter
qualifications is fairly robust under the enforcement provisions.  (I flesh
out this argument in more detail
here<http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2405396>.)
 To be sure, Congress has to tie its voter qualification rules to one of
the protected classes listed in these Amendments.  In addition, Congress's
action must be "congruent and proportional" under *City of
Boerne*(although there is an argument that this test is more lenient
when it comes
to a fundamental right like voting). But that's different from saying that
there is *no* Constitutional authority for Congress to regulate voter
qualifications.

In short, although the proposed bill certainly could have articulated the
basis of constitutional authority more clearly, I think it lies in
Congress's power to "enforce" the voting-related amendments through
"appropriate legislation."

Josh

On Fri, Apr 11, 2014 at 6:15 PM, Derek Muller <derek.muller at gmail.com>wrote:

> What exactly is the constitutional basis for Congress extending the right
> to vote to ex-felons in federal elections? It isn't, as Section 2(2) says,
> the Times, Places and Manner Clause, which *Arizona v. Inter Tribal
> Council *expressly notes precludes federal authority over voter
> qualifications (and, indeed, apparently killed *Oregon v. Mitchell* in
> the process regarding federal power over voter qualifications in federal
> elections).
>
> Section 2(3) cites "[b]asic constitutional principles of fairness and
> equal protection," which is not exactly a basis for legislative authority.
> The third sentence of the section cites the 13th, 14th, 15th, 24th, and
> 26th amendments empowering "Congress to enact measures to protect the right
> to vote in Federal [ed: the power also extends to state] elections," which
> is true, but does not necessarily (except, see below) empower Congress to
> enforce qualifications regarding felon status. And the third sentence of
> the section cites the 8th Amendment's ban on cruel and unusual punishments,
> which is certainly correct, but, alas, does not empower of Congress.
>
> Section 2(4)(C) notes that felon disenfranchisement law
> "disproportionately impact racial and ethnic minorities," (see also Section
> 2(10)-(11)), which is certainly the case--the harder question, under
> existing Supreme Court jurisprudence, is whether a racially disparate
> impact in a sufficient basis for the exercise of congressional power to
> expand voter qualifications under the Reconstruction Amendments--which, I
> think, is a great question, and would likely fracture the majority that
> wrote the statements in *Inter Tribal* regarding the congressional power
> over voter qualifications.
>
> Finally, I'd note that it would enfranchise all ex-felons. There are a
> handful of states that only bar ex-felons convicted of an election-related
> felony from ever voting again.
>
> Derek
>
> Derek T. Muller
>
> Associate Professor of Law
>
> Pepperdine University School of Law
>
> 24255 Pacific Coast Hwy.
>
> Malibu, CA 90263
>
> +1 310-506-7058
>
> SSRN Author Page: http://ssrn.com/author=464341
>
>
>
> On Fri, Apr 11, 2014 at 9:38 AM, Rick Hasen <rhasen at law.uci.edu> wrote:
>
>>  Ex-Felon Voting Rights Bill <http://electionlawblog.org/?p=60375>
>>  Posted on April 10, 2014 9:36 pm <http://electionlawblog.org/?p=60375> by
>> Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> Press release<http://www.cardin.senate.gov/newsroom/press/release/cardin-leads-reintroduction-of-bill-to-create-nationwide-standard-for-restoring-voting-rights-for-americans-released-from-prison>
>> :
>>
>> *U.S. Senator Ben Cardin (D-MD) *has introduced a bill, S. 2235, the *Democracy
>> Restoration Act
>> <http://cardin.senate.gov/download/democracy-restoration-act-of-2014> *that
>> would reduce recidivism rates by restoring voting rights to individuals
>> after they have served their time and have been released from
>> incarceration. Studies indicate that former prisoners who have voting
>> rights restored are less likely to reoffend, and that disenfranchisement
>> hinders their rehabilitation and reintegration into their community. *Original
>> cosponsors of S. 2235 include Senate Judiciary Committee Chairman Patrick
>> Leahy (D-Vt.), and Senators Richard Durbin (D-Ill.), Sheldon Whitehouse
>> (D-RI), Cory Booker (D-NJ), Tom Harkin (D-Iowa), and Bernie Sanders
>> (I-Vt.). *Companion legislation also was introduced today in the House
>> of Representatives by Congressman John Conyers (D-Mich.), Ranking Member of
>> the House Judiciary Committee.
>>
>> Meanwhile, William & Mary Law School launches 'Revive My Vote' project.<http://www.vagazette.com/news/va-vg-wm-revive-my-vote-20140409,0,4938146.story>
>>
>> --
>> Rick Hasen
>> Chancellor's Professor of Law and Political Science
>> UC Irvine School of Law
>> 401 E. Peltason Dr., Suite 1000
>> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
>>
>>
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-- 
Joshua A. Douglas
Assistant Professor of Law
University of Kentucky College of Law
620 S. Limestone
Lexington, KY 40506
(859) 257-4935
joshuadouglas at uky.edu
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