One small correction -- I neglected to note that the South
Carolina 1865 Constitution was only a *proposed* constitution; that's
why I said that an omission of a footnote related to it is
understandable, but I neglected to include the word "proposed."  Still,
it suggests that in 1865 quite a few people in South Carolina supported
felon disenfranchisement for reasons unrelated to race (since blacks
were excluded from the vote even without this provision).

	I'd love to hear more on the questions I note below, if anyone
has any information about the subject.  Many thanks,

	Eugene

-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu 
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of 
Volokh, Eugene
Sent: Thursday, February 10, 2005 11:37 AM
To: election-law@majordomo.lls.edu
Subject: Question about the history of felon disenfranchisement laws


	Our library got me a copy of Behrens, Uggen & Manza, 
"Ballot Manipulation and the 'Menace of Negro Domination': 
Racial Threat and Felon Disenfranchisement in the United 
States, 1850-2002," and this led me to a question that I 
thought some on this list might answer.

	The paper lists the years of first felon 
disenfranchisement laws.  Many -- for instance, in Delaware, 
Kentucky, Louisiana, Maryland, and Virginia (focusing only on 
the slave states) -- were enacted before the Civil War

	As to quite a few of the laws that were enacted right 
after the Civil War, the article has a footnote stating that 
"The first state constitution gave the state legislature the 
power to restrict suffrage for criminal activity"; Alabama, 
Florida, Missouri, and Texas fall into this category.  The 
article seems to erroneously omit such a footnote as to 
Mississippi (see Miss. Const. 1817, art. VI, sec. 5).  It 
also doesn't note that Tennessee had a similar provision in 
its 1834 Constitution, though not in its original 
constitution.  It also doesn't note (this is an 
understandable omission, but I think the circumstance I 
mention is still worth noting) that the South Carolina 
Constitution of 1865, which *explicitly* disqualified blacks 
as voters also gave the legislature the power to "impose 
disqualification to vote as a punishment for crime," which 
suggests that the drafters of that particular constitution 
saw disqualification of felons as valuable itself, 
independently of its effect on blacks voters.

	Now here is what puzzles me:  The earlier Alabama, 
Florida, Mississippi, and Texas constitutions not only gave 
the legislature such power, but actually seemed to *order* 
the legislature to do this:  "Laws shall be made by the 
general assembly to exclude from office, and from suffrage, 
those who shall have been, or may thereafter be, convicted of 
bribery, perjury, forgery, or other high crime or misdemeanor 
(Fla. Const. 1838, art. VI, sec. 13; see also Alabama Const. 
1819, art. VI, sec. 5; Miss. Const. 1817, art. VI, sec. 5; 
Texas Const. 1845, art. VII, sec. 4.)  Only two, the Missouri 
Constitution of 1820 (art. III, sec. 14), and the Tennessee 
Constitution of 1834 (art. IV, sec. 2) spoke of legislative 
discretion ("The general assembly shall have power to exclude 
. . . from the right of suffrage, all persons convicted of 
bribery, perjury, or other infamous crime," to quote the 
Missouri provision).

	So the question:  Did the Alabama, Florida, 
Mississippi, and Texas legislatures indeed fail to comply 
with the constitutional command until after the Civil War, 
and did the Missouri and Tennessee legislatures fail to 
exercise their powers?

	And a supplementary question:  The 1835 amendments to 
the North Carolina Constitution, sec. 4, part Four, say that 
the legislature "shall not have power to pass any private law 
. . . to restore to the rights of citizenship, any person 
convicted of an infamous crime; but shall have power to pass 
general laws regulating the same."  This suggests that felons 
might have lost the vote by having more generally lost the 
rights of citizenship, even before the Civil War (the Behrens 
et al. article lists the first felon disenfranchisement law 
as 1876, but I wonder whether this might therefore be 
mistaken).  State v. Surles, 230 N.C. 272 (1949), notes that 
in 1854 the North Carolina legislature in fact passed a law 
providing for a procedure for restoring the rights of 
citizenship, but doesn't specifically discuss the right to 
vote.  Any thoughts on whether North Carolina may in fact 
have disqualified felons from voting before the Civil War?

	I realize, of course, that we may want to also 
investigate the situation in nonslave states; I just decided 
to start with the slave states, rather than doing the work for all 50.

	Thanks,

	Eugene