Subject: strategy for fighting felon disenfranchisement laws
From: Rick Hasen
Date: 6/1/2006, 4:20 PM
To: "J. Morgan Kousser" <kousser@HSS.CALTECH.EDU>
CC: election-law <election-law@majordomo.lls.edu>

Morgan, I think there are two reasons why it might make sense to focus the action to end felon disenfranchisement in the arena of state legislatures rather than in state courts:

1) limited resources: assuming that the NAACP LDF and others have lots of other kinds of cases that they could bring in court, challenging felon disenfranchisement laws under the Constitution or the VRA might not be the best use of resources.  The pattern we are seeing (aside from the 9th Circuit case) is that court challenges to felon disenfranchisement are not succeeding and don't seem to have the prospect of succeeding in the near term (the federal courts today are much different than they were when they were desegregating the schools), but that political efforts on the state level to end felon disenfranchisement laws are increasingly bearing fruit. 
2) the benefit of victories: the momentum that might be created by moving politically could be stalled by repeated failures in the courts. As Uggen and Manza's research shows, public opinion has been moving toward accepting the idea that felons who complete their sentences should have their voting rights restored.  I worry that court losses could reverse that effect, when courts in essence find no problem with such laws.

I also believe that when it comes to constitutional litigation, it is more appropriate for legislative bodies rather than courts to make decisions on highly contested questions of voting rights (except in the area I've characterized as part of "core" voting rights).

Rick

J. Morgan Kousser wrote:
Rick,
  Why is it preferable to attack felon disfranchisement in only one arena?  Why not several simultaneously -- state courts, federal courts, state legislatures, congressional hearings, etc.?
  I've long been working on 19th century legislation and litigation about racial discrimination in schools.  In state after state, city after city, the story is the same:  petitions to school boards, if unsuccessful, led to legal cases.  If those were unsuccessful, many of the same agitators turned to the state legislature.  After legislation was passed, which often took many years, activists had to petition school boards or infiltrate them.  If that failed, it was back to court.  The point is that even before the 14th Amendment was passed (as I pointed out in a 1988 Northwestern ULR article), activists realized that far from slowing down progressive change, struggles in several political arenas were complementary and hastened political change.  The one exception to this rule is that successes on the state level by 1901 in every non-southern state with any appreciable number of African-Americans except Indiana may have removed some of the pressure for congressional action. 
  I testified in Underwood v. Hunter in Alabama in the early 1980s, and I'm working in Farrakhan v. Gregoire for the NAACP-LDF now.  As you know, I'm reviewing two books on felon disfranchisement for ELJ, books that represent scholarly efforts to move the felon disfranchisement issue ahead, and which feed the struggles in courts as well as legislatures.  It's a terrible mistake to conclude, as Michael Klarman did by suppressing widespread evidence, which I and perhaps others forcefully pointed out to him long before he published his book on school desegregation, that the legislative and judicial paths are mutually exclusive.  They're not.  Put them both together and the highway to reform is broader.
Morgan


Prof. of History and Social Science, Caltech
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Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
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