[EL] "The Racist Origins of Felon Disenfranchisement"

[Jerald Lentini]

Perhaps focusing on the origin of disenfranchisement is the wrong approach,
at least where facially neutral laws with disparate impacts are concerned.
The more relevant question might be "was this law *ever* intended to be
used for unconstitutional discrimination?"

Whether a facially neutral law is itself racist in origin doesn't strike me
as being as important as whether it was ever enacted or retained for racist
purposes. If a preexisting, facially neutral law is kept in place because
it has a discriminatory impact or may be used to further white supremacy,
then its genesis might not be relevant to its racism at all.

The criminal disenfranchisement laws in Virginia are a good example. These
laws predated the uber-racist 1901-02 constitutional convention, but the
retention of those laws by the delegates could (and very likely did) have a
racist motive underlying it. This criminal disenfranchisement provision
(which went beyond felonies into a number of misdemeanors) was first
enacted well before the state recognized minority voting rights, so the
provision's origin is hard to describe as clearly racist. But in 1901-02,
the constitutional convention was expressly motivated by racism, as
delegate and future US Senator Carter Glass (among others) put it:

"Discrimination! Why, that is precisely what we propose. That, exactly, is
what this convention was elected for -- to discriminate to the very
extremity of permissible action under the limitations of the Federal
Constitution, with a view to the elimination of every negro voter who can
be gotten rid of legally, without materially impairing the numerical
strength of the white electorate."


In a 1989 case on school board selection, Irby v. Virginia Board of
Elections
<http://leagle.com/decision/19892241889F2d1352_12021.xml/IRBY%20v.%20VIRGINIA%20STATE%20BD.%20OF%20ELECTIONS>,
the state conceded that the 1901-02 constitution was designed to
disenfranchise black voters.

I submit--based on this and other evidence--that every law related to
voting to come out of that convention should be viewed as tainted with
unconstitutional racist intent, given this and a plethora of other examples
of racist purpose (for more about this convention's explicit racism, see
Keyssar pp.112-13).

This raises an even more salient question: *at what point, if any, might
the taint of racist intent be removed from a facially neutral law?*

If we view all election laws incorporated in the 1901-02 revision to be
tainted, then we have to ask whether that was fixed with the 1967-71
redrafting process, which was achieved without anything remotely
approaching the overt racism of the 1901-02 process.

When researching the 1967-71 Virginia constitutional revision, I found no
evidence that there was any intent to fundamentally alter the way the
disenfranchisement law would work, nor to address the racially disparate
impact it caused, nor to confront the racist legacy of its then-current
incarnation. The changes to the disenfranchisement provision of the state
constitution appear to have been meant as "housekeeping" measures, designed
to simplify the language (which was, at that point, a list of disqualifying
offenses) without intending to alter its meaning.

So did ratifying a revised constitution in 1971--with no evident intent to
either endorse or repudiate the racism of 1901-02--sufficiently remove the
racist taint from the disenfranchisement provision, or does the stench of
that overt racist intent still pervade it?

The Brennan Center, the Lawyers' Committee, and several other groups used a
similar theory a decade ago to challenge Florida's disenfranchisement law,
but the en banc Eleventh Circuit ruled against them
<http://www.brennancenter.org/sites/default/files/legal-work/4%2090ea3d64f1b1b0bc24_cpm6i6v60.pdf>
based
on the evidentiary record being a little thin concerning the 1868 Florida
revision's racist motives. That's certainly not as much of a problem in
Virginia, where establishing the racist purpose of the 1901-02 revision is
a far easier task, but I don't believe anyone has yet brought a case along
these lines there.



On Wed, Nov 19, 2014 at 10:31 AM, Sean Parnell <
sean at impactpolicymanagement.com> wrote:

> There is of course a middle ground between privilege and unqualified
> right, as the treatment of firearms ownership and possession by felons
> suggests (and for that matter, the very nature of incarceration). And
> there’s a wide range of restrictions on voting that I suspect almost
> everybody here supports, starting with a minimum voting age (with some
> disagreement on *where* that minimum should be set, but no disagreement
> that there should be a minimum).
>
>
>
> Sean Parnell
>
> President
>
> Impact Policy Management, LLC
>
> 6411 Caleb Court
>
> Alexandria, VA  22315
>
> 571-289-1374 (c)
>
> sean at impactpolicymanagement.com
>
>
>
> *From:* Rob Richie [mailto:rr at fairvote.org]
> *Sent:* Wednesday, November 19, 2014 1:15 PM
> *To:* Sean Parnell
> *Cc:* Rick Hasen; law-election at UCI.EDU
> *Subject:* Re: [EL] "The Racist Origins of Felon Disenfranchisement"
>
>
>
> I would say the real origin relates to a conversation we still have today:
> is voting primarily a privilege or an unqualified right of adult
> citizenship? The 19th century experienced a general wide expansion of
> suffrage rights, but started with a very limited pool of eligible voters. A
> great book on this history is Alex Keyssar's "The Right to Vote."
>
> I would suggest, along with Keyssar, Jamie Raskin, Lani Guinier and
> various others that we still would benefit from taking on that conversation
> directly, although am aware that some respected scholars like Rick Hasen
> and Heather disagree.
>
> Rob Richie
>
> On Nov 19, 2014 10:56 AM, "Sean Parnell" <sean at impactpolicymanagement.com>
> wrote:
>
> There’s a bit of a disconnect in the data and the conclusion regarding the
> opinion piece ““The Racist Origins of Felon Disenfranchisement.” There was
> indeed an “explosion” in felon disenfranchisement laws in the post-Civil
> War era, specifically the late 1860’s and 1870’s. But two points are worth
> making:
>
>
>
> 1.       Many states had felon disenfranchisement laws before the Civil
> War – California, Connecticut, Delaware, Indiana, Iowa, Kansas, Kentucky,
> Louisiana, Maryland, Minnesota, New Jersey, New York, Ohio, Oregon,
> Pennsylvania, Rhode Island, Virginia, and Wisconsin, according to the
> research cited by the article’s author. This suggests an *origin* of
> felon disenfranchisement laws other than racism.
>
> 2.       Many of the states that adopted felon disenfranchisement laws in
> the ‘60s and ‘70s were indeed Southern states (Alabama, Arkansas, Florida,
> Georgia, Mississippi, North Carolina, South Carolina, Tennessee, and
> Texas), which would seem to fit nicely with the idea that it was racism
> driving these laws, except that to the best of my recollection most if not
> all of these states were under the control of the ‘Radical Republicans’
> pursuing the Reconstruction agenda, which relied to some degree on
> maximizing black turnout in order to maintain political control –
> suggesting something else perhaps motivating the passage of these laws. I
> should also note that Colorado, Illinois, Missouri, and Nebraska were among
> the states adding felon disenfranchisement laws to their books in this time
> period, I don’t know about IL and MO but to the best of my knowledge
> neither Colorado or Nebraska had quite the toxic racist sentiments that
> prevailed in much of the old Confederacy.
>
>
>
> I should note, I haven’t had (and won’t have) the time to verify #2, that
> state legislatures were under the control of Radical Republicans relying on
> black votes in each or most of the states passing felon disenfranchisement
> laws, I’d be interested in hearing if I’ve misunderstood or misremembered
> this situation.
>
>
>
> It would not surprise me at all to learn that in the post-Reconstruction
> era the Jim Crow Democrats had racist motives for continuing and expanding
> the reach of such laws. But the two points above suggest there isn’t much
> history to support the contention that the *origin* of felon
> disenfranchisement laws is rooted in racism.
>
>
>
> Best,
>
>
>
> Sean Parnell
>
> President
>
> Impact Policy Management, LLC
>
> 6411 Caleb Court
>
> Alexandria, VA  22315
>
> 571-289-1374 (c)
>
> sean at impactpolicymanagement.com
>
>
> “The Racist Origins of Felon Disenfranchisement”
> <http://electionlawblog.org/?p=68485>
>
> Posted on November 18, 2014 8:55 pm <http://electionlawblog.org/?p=68485>
>  by *Rick Hasen* <http://electionlawblog.org/?author=3>
>
> Brent Staples
> <http://www.nytimes.com/2014/11/19/opinion/the-racist-origins-of-felon-disenfranchisement.html?hp&action=click&pgtype=Homepage&module=c-column-top-span-region&region=c-column-top-span-region&WT.nav=c-column-top-span-region&_r=0> NYT
> Editorial Observer column.
>
>
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