Felon Disenfranchisement, pt. 1: Background

This past weekend I attended a seminar at the University of Minnesota Law School that is put on by the Civil Rights Moot Court (“CRMC”). The CRMC puts on a seminar every year that relates to the competition problem. For those who are not familiar, law school moot court programs offer law students a chance to practice their appellate advocacy skills by writing briefs and arguing before a panel of “judges.” It is similar to mock trial, but at the next level of the legal process.

I have been involved with the CRMC since I was a teaching director and competitor during law school. Judging the competitions is fun, and offers a rare chance to really get to know a significant development in the law, even in areas in which I do not practice.

This year, the case to moot is Johnson v. Gov. of State of Fla., 405 F. 3d 1214 (11th Cir. 2005), which deals with Florida’s constitutional felon disenfranchisement.

Felon Disenfranchisement

Felon disenfranchisement is the practice of taking away a felon or ex-felon’s right to vote. Some states, such as Florida, Alabama, Iowa, and others, include disenfranchisement in their constitutions. In other states, felon disenfranchisement is codified in law.

Disenfranchisement has a long history in the United States. After Reconstruction in many Southern states, it was a way to make up for newly-freed slaves’ newly-acquired right to vote. States such as Alabama disenfranchised those convicted of crimes ex-slaves were believed more likely to commit. So, for example, beating one’s wife results in disenfranchisement, but killing her does not.

Similarly, in Mississippi, only bribery, burglary, theft, arson, perjury, forgery, embezzlement, bigamy and “obtaining money or goods under false pretenses” result in disenfranchisement. (Source.)

Voter and voting official education often results in effective felon disenfranchisement even in states where felons are able to vote. I remember news reports of felons whose civil rights (including the right to vote) had been restored, but were nevertheless turned away from the polls in the 2004 election. Partisan election challengers help, but cannot catch every mistake. Further, many felons who can vote believe that they cannot.

States that do not or only partially disenfranchise felons and ex-felons have a communication problem, and some take no steps to remedy it.

The Numbers

As of 2005, 48 states limited voting rights on the basis of conviction of a felony.

Over 5 million citizens of the United States cannot vote. Only 1.4 million of those, or 28%, are actually incarcerated.

In Florida, where the Johnson case originated, over 612,000 citizens have been disenfranchised. This is more than the population of the six least-populous states.

In Minnesota, less than 2% of the population is disenfranchised. However, that leaves 5-9% of the African-American population without the right to vote.

The Johnson Challenge to Disenfranchisement in Florida

In Johnson, several ex-felons challenged the constitutionality of Florida’s felon disenfranchisement law, which is codified in Florida’s constitution. I won’t go into the nitty gritty of the decision. If you’re into that, the link is up top.

In short, the 11th Circuit decided that there was “no evidence” of racist intent in the passing of the original disenfranchisement measure in 1868. This from a court that described the openly racist Radical Republicans as those who “wished to exclude native whites from state politics.”

The 11th Circuit also found that there was great constitutional doubt as to the Voting Rights Act even applies to the situation, and that it should therefore deny the slaim.

Because there was no racist intent, and because of the “great constitutional doubt,” the plaintiffs’ 15th Amendmend and Voting Rights Act claims were dismissed as a matter of law.

The U.S. Supreme Court denied the plaintiffs’ petition for certiorari. This could be for various reasons, even though the cases seems, at first glance, to be a perfect case for the Supreme Court to consider. According to Catherine Weiss, of the Brennan Center for Justice, who presented the case for the panel, this could be because the Supreme Court is trying to be as uncontroversial as possible while the retirement of Justice O’Connor looms.

It could also be a result of the Supreme Court’s fear of any more voting cases out of Florida after the abundant negative press from its last foray into voting issues.

Coming Up . . .

More on felon disenfranchisement, including the Governor of Iowa’s solution, more on Johnson, pending legislation in Minnesota, and the rising incarceration rate’s role in all this . . .