The relevant text of the Constitution is not Section 2 of the Fourteenth Amendment, not Section 1 of the Fourteenth Amendment or even the Thirteenth Amendment.

-----Original Message-----
From: Tom Round [mailto:T.Round@mailbox.gu.edu.au]
Sent: Sunday, July 28, 2002 4:15 PM
To: Rick Hasen
Cc: election-law@majordomo.lls.edu
Subject: Re: A Growing Gap in American Democracy


Let me get this straight... In certain US States, someone can commit a 
crime at (say) age 20, be imprisoned for a few years, serve their time, be 
released at (say) age 25 or 30, but still be barred from voting ever again 
for the rest of their entire life? Not just while they're actually serving 
time in prison, or at least on parole for the original offence? Even if 
they go straight and are completely law-abiding for the next five or six 
decades?

If a State argues that the ban is justified because ex-convicts haven't 
been successfully rehabilitated by their time in prison, then that's quite 
an indictment (no pun intended) of the millions spent on the prison system, 
or alternatively of the State's "reckless disregard" of community safety if 
it releases concededly unrehabilitated felons back into the community.

Given that Sec 1 of your Fifteenth Amendment says that "[t]he right of 
citizens of the United States to vote shall not be denied or abridged by 
the United States or by any State on account of [...] previous condition of 
servitude", and Sec 1 of the Thirteenth clearly implies that "punishment 
for crime whereof the party shall have been duly convicted" is indeed a 
form of "involuntary servitude" (otherwise there would be no need for the 
"except" savings clause validating it), doesn't a lifetime ban on 
ex-convicts voting contravene the US Constitution?

At 13:16 27-07-2002 -0700, you wrote:
Here's an op-ed about felon disenfranchisement from today's NY Times.

http://www.nytimes.com/2002/07/27/opinion/27ABRA.html
New York Times (27 July 2002)
"A Growing Gap in American Democracy"
By Sasha Abramsky

Two years ago the world watched as officials in Florida struggled to 
explain the mishaps and shoddy practices that had denied thousands of 
Floridians a chance to vote. They focused on butterfly ballots and 
hanging chads, but neglected a critical part of the problem: over half a 
million Florida residents had been prevented from voting by a state law 
that permanently disenfranchises almost anyone ever convicted of a 
felony, even those who haven't committed a crime since serving their 
terms, have jobs and are paying taxes. For like many Southern states, 
Florida had cemented felony disenfranchisement into its constitution in 
the post-Civil War years, when legislators were using any means to keep 
the vote in white hands.

Following the 2000 presidential election, several states changed their 
suffrage laws. New Mexico, Delaware and Maryland either abandoned or 
curtailed their disenfranchisement provisions; Connecticut enfranchised 
people on probation; and lawyers in Washington State are working on a 
case to overturn that state's disenfranchisement laws. Iowa, Arizona, 
Nevada and Wyoming retain their catch-all, permanent disenfranchisement 
laws. But the bulk of the disenfranchised live in southern states - 
Florida, Alabama, Mississippi, Kentucky, Tennessee and Virginia - and in 
several of these conservative legislators are fighting efforts at 
enfranchisement. Some experts estimate that in Alabama, Mississippi and 
Florida a quarter or more of black men are now permanently barred from voting.

On July 18, Judge James Lawrence King of the Federal District Court for 
the Southern District of Florida dismissed a lawsuit against Florida's 
disenfranchisement laws. The lawsuit had been filed by the Brennan Center 
for Justice at New York University School of Law on behalf of seven 
plaintiffs, first among them one Thomas Johnson, who weren't allowed to 
vote in the last presidential election. In his brief opinion, Judge King 
began by misnaming the lead plaintiff as Thomas Jefferson. From there, it 
only got worse.

Brennan Center lawyers argued that the history of the South's felony 
disenfranchisement laws - along with studies indicating minorities are at 
particular risk of getting arrested and more likely than whites to 
receive felony convictions for comparable crimes - meant permanent 
disenfranchisement violated the 14th Amendment's equal protection 
clauses. They also argued that Florida was violating the 1965 Voting 
Rights Act.

Judge King disagreed, deciding that Florida had the right to 
disenfranchise people as long as the motive was to deny felons, rather 
than a specific racial group, the vote. Because Florida had rewritten its 
post-Civil War state constitution in the 1960's, he held felony 
disenfranchisement to be no longer racially biased. He cited as precedent 
a 1969 Florida case and a 1974 Supreme Court decision that upheld 
individual state disenfranchisement laws.

The recent court decision neglected two important factors. The first is 
that Congress amended the Voting Rights Act in 1982 to remove "intent" as 
a necessary precondition for a finding of racial discrimination, and to 
replace it with a results-based test. A voting qualification that 
interacts with social conditions to cause an inequality in voting 
opportunities violates the Voting Rights Act. Because nonwhites are more 
likely to be arrested and convicted than whites, relative to their 
participation in criminal activity, felony disenfranchisement cannot but 
disproportionately affect African-American and Latino access to the ballot box.

The second neglected factor is that, since the 1974 ruling, America's 
prison population has quintupled. A recent study estimated that 
disenfranchisement laws now deprive as many as five million Americans of 
the right to vote. Numbers this large really matter. At the last 
election, if even a small proportion of Florida's disenfranchised 
population had voted, and if they had broken 60-40 in Al Gore's favor - a 
highly conservative estimate given the demographics of this group - 
George Bush would not have won an Electoral College majority. Felony 
disenfranchisement, coupled with very high incarceration rates, has 
become a major challenge to our democratic values. In a self-confident 
democracy, such laws simply have no place. The Brennan Center is 
appealing Judge King's decision. Meanwhile, state legislators must 
speedily abolish these vestiges of Jim Crow.

Sasha Abramsky is a media fellow at the Open Society Institute's Center 
on Crime, Communities and Culture, and is the author of "Hard Time Blues: 
How Politics Built a Prison Nation.''

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Dr Tom Round
BA (Hons), LL.B (UQ), PhD (GU, Sept 2002)
Research Fellow, Key Centre for Ethics,
     Law, Justice and Governance (KCELJAG)
& Subject Convenor, 7021KEL ("Ethical and
     Legal Regulation of Organisations")
Room 1.10, Macrossan Building, Nathan Campus
Griffith University, Queensland [Australia] 4111
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