The modern-day literacy test?: Felon disenfranchisement and race discrimination

Stanford Law Review

Volumn 57, Issue 2, 2004, Pages 611-655

  Goldman, Daniel S ^a  

^a STANFORD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33645991473     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (276)

1. Reynolds v. Sims, 377 U.S. 533, 562 (1964).
2. 377 U.S. 533.
3. G. EDWARD WHITE, EARL WARREN: A PUBLIC LIFE 337 (1982).
4. Christopher Uggen & Jeff Manza, Democratic Contraction? Political Consequences of Felon Disenfranchisement in the United States, 67 AM. SOC. REV. 777, 782 (2002).
5. McLaughlin v. City of Canton, 947 F. Supp. 954, 971 (S.D. Miss. 1995). The court continued: When brought beneath [disenfranchisement's] axe, the disenfranchised is severed from the body politic and condemned to the lowest form of citizenship, where voiceless at the ballot box . . . the disinherited must sit idly by while others elect his civic leaders and while others choose the fiscal and governmental responsibilities which will govern him and his family. Such a shadowy form of citizenship must not be imposed lightly . . . . Id.
6. Gabriel J. Chin, Race, the War on Drugs, and the Collateral Consequences of Criminal Conviction, 6 J. GENDER RACE & JUST. 253, 255 (2002).
7. See generally id.;
8. Nora V. Demleitner, Continuing Payment on One's Debt to Society: The German Model of Felon Disenfranchisement as an Alternative, 84 MINN. L. REV. 753 (2000);
9. Alex C. Ewald, "Civil Death": The Ideological Paradox of Criminal Disenfranchisement Law in the United States, 2002 WIS. L. REV. 1045;
10. Pamela S. Karlan, Ballots and Bullets: The Exceptional History of the Right to Vote, 71 U. CIN. L. REV. 1345 (2003) [hereinafter Karlan, Ballots and Bullets];
11. Pamela S. Karlan, Convictions and Doubts: Retribution, Representation, and the Debate over Felon Disenfranchisement, 56 STAN. L. REV. 1147 (2004) [hereinafter Karlan, Convictions and Doubts];
12. Marc Mauer, Disenfranchisement of Felons: The Modern-Day Voting Rights Challenge, 2002 C.R.J. 40;
13. J. Whyatt Mondesire, Felon Disenfranchisement: The Modern Day Poll Tax, 10 TEMP. POL. & CIV. RTS. L. REV. 435 (2001);
14. Afi S. Johnson-Parris, Note, Felon Disenfranchisement: The Unconscionable Social Contract Breached, 89 VA. L. REV. 109 (2003);
15. Note, One Person, No Vote: The Law of Felon Disenfranchisement, 115 HARV. L. REV. 1939 (2002) [hereinafter One Person, No Vote];
16. Elena Saxonhouse, Note, Unequal Protection: Comparing Former Felon's Challenges to Disenfranchisement and Employment Discrimination, 56 STAN. L. REV. 1597 (2004).
17. Voting Rights Act of 1965 § 4, 42 U.S.C. § 1973aa (2000); see infra Part II.B.1.
18. See, e.g., Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 987 (1988) (noting that "the necessary premise of the disparate impact approach is that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination").
19. See SAMUEL ISSACHAROFF ET AL., THE LAW OF DEMOCRACY: LEGAL STRUCTURE OF THE POLITICAL PROCESS 101 (2d ed. 2002). South Carolina followed Mississippi in 1895, as did Louisiana in 1898, Alabama in 1901, Virginia in 1901-02, and Oklahoma in 1910. By amendment, North Carolina adopted similar disenfranchising provisions in 1900 and Georgia did so in 1908.
20. C. VANN WOODWARD, ORIGINS OF THE NEW SOUTH, 1877-1913, at 321 (1971).
21. For greater insight into the remaking of the South during and following Reconstruction, see ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 1863-1877 (1988);
22. J. MORGAN KOUSSER, THE SHAPING OF SOUTHERN POLITICS (1974);
23. WOODWARD, supra.
24. WOODWARD, supra note 10, at 333. Glass also said, "This plan of popular suffrage will eliminate the darkey as a political factor in this State in less than five years, so that in no single county of the Commonwealth will there be the least concern felt for the complete supremacy of the white race in the affairs of government." Ewald, supra note 7, at 1090-91.
25. See ALEXANDER KEYSSAR, THE RIGHT TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN THE UNITED STATES 111 (2000).
26. See ISSACHAROFF ET AL., supra note 10, at 101.
27. See KEYSSAR, supra note 12, at 142.
28. Id. at 112.
29. H.R. REP. No. 89-439 (1965) (statement of the joint views of twelve members of the Judiciary Committee), reprinted in 1965 U.S.C.C.A.N. 2540.
30. WOODWARD, supra note 10, at 331-32.
31. Id. at 332.
32. KEYSSAR, supra note 12, at 111;
33. WOODWARD, supra note 10, at 332.
34. WOODWARD, supra note 10, at 334.
35. KEYSSAR, supra note 12, at 112. The "understanding clause" permitted illiterates to register and vote if they could "understand" any section of the state constitution read to them, "or give a reasonable interpretation thereof."
36. WOODWARD, supra note 10, at 332.
37. In 1915, the grandfather clause became the first disenfranchising mechanism struck down by the Supreme Court. See Guinn v. United States, 238 U.S. 347 (1915) (holding that the grandfather exemption from the literacy test in the Oklahoma Constitution violated the Fifteenth Amendment because it was a condition for voting based on race).
38. H.R. REP. No. 89-439, at 12 (1965) (statement of the joint views of twelve members of the Judiciary Committee), reprinted in 1965 U.S.C.C.A.N. 2540, 2543.
39. ISSACHAROFF ET AL., supra note 10, at 118 (citing United States v. Louisiana, 225 F. Supp. 353 (E.D. La. 1963), aff'd, 380 U.S. 145 (1965)). At the time, Southern politics were dominated by the Democratic Party, which increased the importance of the Democratic primary and reduced the importance of the actual election. Because blacks were excluded from the Democratic primary, they were effectively excluded from the entire political process. Id.
40. 321 U.S. 649 (1944).
41. 345 U.S. 461 (1953).
42. See ISSACHAROFF ET AL., supra note 10, at 117-18.
43. See KEYSSAR, supra note 12, at 228.
44. See Mondesire, supra note 7, at 439. The number of registered black voters - 1.4 million - is a particularly relevant number because it is the same as the number of disenfranchised black men documented in the first widespread study on felon disenfranchisement.
45. See Jamie Fellner & Marc Mauer, Losing the Vote: The Impact of Felon Disenfranchisement Laws in the United States 1 (1998), at http://www.sentencingproject.org/pdfs/9080.pdf (last visited Nov. 2, 2004).
46. Pub. L. No. 89-110, 79 Stat. 445 (codified as amended at 42 U.S.C. §§ 1971, 1973 to 1973bb-1 (2000)).
47. Andrew L. Shapiro, Challenging Criminal Disenfranchisement Under the Voting Rights Act: A New Strategy, 103 YALE L.J. 537, 538 (1993).
48. See H.R. REP. No. 91-397, at 4 (1970) (citing U.S. COMM'N ON CIVIL RIGHTS, POLITICAL PARTICIPATION 12-13 (1968)), reprinted in 1970 U.S.C.C.A.N 3277, 3280. One triggering condition of the Voting Rights Act was that nonwhite political participation in the state must have been less than 50% in any election on November 1, 1964. See infra note 67. Numerous counties in North Carolina also triggered the Voting Rights Act, but the state was not covered as a whole. The same report estimated that 46.8% of North Carolina nonwhites were registered to vote prior to the enactment of the Voting Rights Act. Id. at 4 (citing U.S. COMM'N ON CIVIL RIGHTS, supra, at 12-13).
49. See South Carolina v. Katzenbach, 383 U.S. 301, 311-12 (1966) (listing Supreme Court jurisprudence striking down the grandfather clause, procedural hurdles, white primaries, registration challenges, and racial gerrymandering).
50. Primarily as a result of these circumstances, Congress enacted section 4 of the Voting Rights Act, which eliminated all "tests and devices" that restricted voting registration. S. REP. No. 94-295, at 22 (1975), reprinted in 1975 U.S.C.C.A.N. 774, 788 ("For both of these reasons, then - the overwhelming evidence of abuse in administering these tests, and the sorry history of educational neglect in these areas - Congress felt it necessary to ban all tests or devices as prerequisites to voting . . . .");
51. see also infra Part I.D.
52. Brown v. Board of Education, 347 U.S. 493, 495 (1954).
53. Id. at 494.
54. See Oregon v. Mitchell, 400 U.S. 112, 133 (1970) ("There is substantial, if not overwhelming, evidence . . . that it is a denial of equal protection to condition the political participation of children educated in a dual school system upon their educational achievement.").
55. 395 U.S. 285, 291 (1965). The Court continued: We conclude that . . . it is appropriate for a court to consider whether a literacy or educational requirement has the 'effect of denying the right to vote on account of race or color' because the State or subdivision which seeks to impose the requirement has maintained separate and inferior schools for its Negro residents who are now of voting age. Id. at 293.
56. S. REP. No. 94-295, at 34.
57. Mitchell, 400 U.S. at 233.
58. Recall Theodore Bilbo's quotation from the text accompanying note 28, supra. Literacy tests alone would have disproportionately affected blacks, but an objective implementation also would have reduced the number of whites with access to the ballot box.
59. According to a Louisiana district court, "[t]he registrar's whim alone determine[d] which applicants [would] be tested." United States v. Louisiana, 225 F. Supp. 353, 382 (E.D. La. 1963), aff'd, 380 U.S. 145 (1965). White applicants often were not even tested, or given an oral test that could be answered by short phrases such as "freedom of speech" or "freedom of religion," and that precluded any check on the registrar's decisions. See H.R. REP. No. 89-439, at 12 (1965) (statement of the joint views of twelve members of the Judiciary Committee), reprinted in 1965 U.S.C.C.A.N. 2540, 2544 ("These cases demonstrate that frequently whites have not been subjected to these tests at all; in many places they are only applied to Negroes. Indeed, Justice Department lawsuits have revealed that large numbers of illiterate whites are registered in many different places in States affected by the bill.").
60. Louisiana, 225 F. Supp. at 383 ("As in the selection process, gross abuses of discretion appear in the evaluation of the interpretations."). In South Carolina v. Katzenbach, the Supreme Court noted that white applicants for registration "have been given easy versions, have received extensive help from voting officials, and have been registered despite serious errors in their answers. Negroes, on the other hand, have typically been required to pass difficult versions of all the tests, without any outside assistance and without the slightest error." 383 U.S. 301, 312 (1966).
61. Louisiana, 225 F. Supp. at 383.
62. According to the legislative history of the Voting Rights Act of 1965, "[b]etween May 1962 and November 1963, 445 Negro applications were rejected; 175 had been filed by Negroes with at least 12 years of education, including 21 with 16 years and one with a master's degree." H.R. REP. No. 89-439, at 11.
63. See WOODWARD, supra note 10, at 347.
64. I.A. NEWBY, JIM CROW'S DEFENSE: ANTI-NEGRO THOUGHT IN AMERICA, 1900-1930, at 152 (1965).
65. See KEYSSAR, supra note 12, at 142. Literacy tests reduced the "ignorance" of the electorate by eliminating blacks, and it helped to "weed out sizeable numbers of poor immigrant voters." A significant number of states enacted literacy tests to prevent immigrants from voting, not just blacks. Id. at 144-45. In 1924, Oregon became the last state to institute any kind of literacy test for voting, and no state repealed its literacy test in the decades following World War I. In the 1940s, eighteen states had some sort of literacy test for voting. Id. at 227. As noted above, however, the most dramatic effect of the literacy test occurred in the South, where segregated education and discriminatory implementation combined to disenfranchise a majority of blacks.
66. For a more detailed analysis of the republican and liberal underpinnings of black disenfranchisement, see generally Ewald, supra note 7.
67. See South Carolina v. Katzenbach, 383 U.S. 301, 311 n.9 (1966).
68. See Lawrence D. Bobo & Ryan A. Smith, From Jim Crow Racism to Laissez-Faire Racism: The Transformation of Racial Attitudes, in BEYOND PLURALISM: THE CONCEPTION OF GROUPS AND GROUP IDENTITIES IN AMERICA 198 (Wendy F. Katkin et al. eds., 1998). In 1942, 53% of white Americans believed blacks to be less intelligent. Four years later, only 43% were of that opinion. And by 1956, only 20% thought so. Id. World War II is often viewed as a catalyst for the civil rights movement, because the United States was fighting abroad to promote democracy against racist ideologies, yet its own domestic policy permitted egregious race discrimination. Furthermore, in 1942, there were one million blacks in the military. This prompted Congress to pass the Soldier Voting Act, the first voting rights act since Reconstruction, which required local jurisdictions to count the absentee ballots afforded to soldiers and sailors, white and nonwhite.
69. See Soldier Voting Act, Pub. L. No. 78-277, 58 Stat. 136 (1944) (repealed 1955);
70. Karlan, Ballots and Bullets, supra note 7, at 1354-55.
71. See NEWBY, supra note 47, at 195.
72. Id.
73. Id.
74. Barbara Jeanne Fields, Slavery, Race and Ideology in the United States of America, 181 NEW LEFT REV. 95, 96 (1990).
75. 360 U.S. 45 (1959).
76. Id. at 51.
77. Id. at 51-52.
78. Id. at 51.
79. In Reynolds v. Sims, the Court established that the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized. 377 U.S. 533, 561-62 (1964).
80. See Ewald, supra note 7, at 1067 n.86; see also Dunn v. Blumstein, 405 U.S. 330 (1972) (establishing that restrictions on the right to vote must be narrowly tailored toward a compelling state interest).
81. The Court was fully aware of the racial discrimination connected to literacy tests. In 1949, it affirmed a district court's decision invalidating Alabama's literacy test as facially unconstitutional. Davis v. Schnell, 81 F. Supp. 872 (S.D. Ala.), aff'd, 336 U.S. 943 (1949). In Lassiter, the Court distinguished Alabama's test from North Carolina's, which required that the prospective voter "'be able to read and write any section of the Constitution of North Carolina in the English language.' That seems to us to be one fair way of determining whether a person is literate, not a calculated scheme to lay springs for the citizen." 360 U.S. at 53-54.
82. See South Carolina v. Katzenbach, 383 U.S. 301, 312 (1966) ("Discriminatory administration of voting qualifications has been found in all eight Alabama cases, in all Louisiana cases, and in all nine Mississippi cases which have gone to final judgment.").
83. The Fifteenth Amendment states, in part, "The 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 race, color, or previous condition of servitude." U.S. CONST. amend. XV, § 1.
84. Voting Rights Act of 1965 § 4, 42 U.S.C. § 1973b(1) (2000). A "test or device" was defined to mean any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter. (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class. Voting Rights Act of 1965 § 4, 42 U.S.C. § 1973(9)(c) (2000).
85. H.R. REP. No. 89-439, at 13 (1965) (statement of the joint views of twelve members of the Judiciary Committee), reprinted in 1965 U.S.C.C.A.N. 2540, 2544 (emphasis added); see also Katzenbach, 383 U.S. at 333-34.
86. Voting Rights Act of 1965 § 4(b), 42 U.S.C. § 1973b(b). The full text reads: The provisions of subsection (a) of this section shall apply in any State or in any political subdivision of a State which (1) the Attorney General determines maintained on November 1, 1964, any test or device, and with respect to which (2) the Director of the Census determines that less than 50 per centum of the persons of voting age residing therein were registered on November 1, 1964, or that less than 50 per centum of such persons voted in the presidential election of November 1964.
87. Voting Rights Act of 1965 § 6, 42 U.S.C. § 1973d (2000).
88. See U.S. COMM'N ON CIVIL RIGHTS, supra note 32.
89. Voting Rights Act Amendments of 1970 § 6, Pub. L. No. 91-285, 84 Stat. 314, 315 (1970) (codified as amended at 42 U.S.C. § 1973aa (2000)).
90. Voting Rights Act Amendments of 1975, Pub. L. No. 94-73, sec. 102(1), 89 Stat. 400, 400 (1975).
91. H.R. REP. No. 91-397, at 9, reprinted in 1970 U.S.C.C.A.N 3277, 3285.
92. See South Carolina v. Katzenbach, 383 U.S. 301 (1966); see also Oregon v. Mitchell, 400 U.S. 112 (1970).
93. The literacy test was thought to be the last of the disenfranchising mechanisms prevalent after Reconstruction. At the time, felon disenfranchisement was not considered a method of political exclusion.
94. See KEYSSAR, supra note 12, at 264.
95. Bobo and Smith use this term to describe the short period from the late 1950s to the early 1960s when the Supreme Court, Congress, and the White House appeared to act in unison to protect basic rights of citizenship in this country. See Bobo & Smith, supra note 51, at 183.
96. See Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 51 (1959) ("Residence requirements, age, previous criminal record . . . are obvious examples indicating factors which a State may take into consideration in determining the qualifications of voters.") (citing Davis v. Beason, 133 U.S. 333, 345-47 (1890)). The Voting Rights Act did not address felon disenfranchisement.
97. See Angela Behrens et al., Ballot Manipulation and the "Menace of Negro Domination": Racial Threat and Felon Disenfranchisement in the United States, 1850-2002, 109 AM. J. Soc. 559, 563 (2003).
98. Id. at 564-65.
99. Id.; see also Christopher Uggen et al., Felon Voting Rights and the Disenfranchisement of African-Americans, SOULS, Fall 2003, at 47, 48 (noting that eleven states passed felon disenfranchisement laws for the first time during Reconstruction).
100. See Shapiro, supra note 31, at 538.
101. See Behrens et al., supra note 78, at 598.
102. Id.
103. Shapiro, supra note 31, at 538 (quoting J. Morgan Kousser, The Undermining of the First Reconstruction: Lessons for the Second, in MINORITY VOTE DILUTION 27, 35 (Chandler Davidson ed., 1984)).
104. See Uggen et al., supra note 80, at 3-4.
105. NEWBY, supra note 47, at 178.
106. Ewald, supra note 7, at 1091. Mississippi has a particularly illustrious history of felon disenfranchisement. In 1896, the Mississippi Supreme Court listed the following crimes as resulting in disenfranchisement: "bribery, burglary, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement or bigamy." Ratliff v. Beale, 20 So. 865, 867 (Miss. 1896). Rape and murder were not added until the disenfranchising provision was reenacted in 1968; the Fifth Circuit determined that this reconsideration of the statute at a later point purged the original racially discriminatory intent involved in selecting certain crimes that triggered disenfranchisement. Cotton v. Fordice, 157 F.3d 388, 392 (5th Cir. 1998). Mississippi still enumerates certain crimes that result in disenfranchisement, yet voter fraud is not one of them. Miss. CONST. art. XII, § 241. For more on Mississippi's history of felon disenfranchisement, see Gabriel J. Chin, Rehabilitating Unconstitutional Statutes: An Analysis of Cotton v. Fordice, 157 F.3d 388 (5th Cir. 1998), 71 U. CIN. L. REV 421 (2002).
107. Ewald, supra note 7, at 1092 (citing PAUL LEWINSON, RACE, CLASS, AND PARTY: A HISTORY OF NEGRO SUFFRAGE AND WHITE POLITICS IN THE SOUTH 81 (1932)). John Fielding Burns, an Alabama judge from a predominantly black district who was largely responsible for enumerating crimes traditionally committed by blacks, estimated that the wife-beating provision alone would disqualify two-thirds of black voters. Id. at 1093.
108. Id. at 1094. In Hunter v. Underwood, the U.S. Supreme Court struck down Alabama's provision disenfranchising individuals convicted of crimes of moral turpitude, on the ground that the original enactment was intended to discriminate against black prospective voters by "establishing] white supremacy." 471 U.S. 222, 229 (1985).
109. Karlan, Convictions and Doubts, supra note 7, at 1156 n.45 (noting that the United States is now the "world leader" in its percentage of prisoners, recently surpassing Russia).
110. Uggen & Manza, supra note 4, at 781.
111. Id. The number of parolees and probationers quadrupled from 1976 to 2000. Id.
112. Jeremy Travis, Invisible Punishment: An Instrument of Social Exclusion, in INVISIBLE PUNISHMENT: THE COLLATERAL CONSEQUENCES OF MASS IMPRISONMENT 15, 18 (Marc Mauer & Meda Chesney-Lind eds., 2002). Thirteen million were convicted of felonies, more than six percent of the adult population.
113. Uggen & Manza, supra note 4, at 778. The U.S. incarceration rate is more than 6.5 times larger than the rate in Canada, more than 7 times greater than the rate in Germany, and almost 16 times greater than that of Japan. Id.
114. See Leslie Acoca & Myma S. Raeder, Severing Family Ties: The Plight of Nonviolent Female Offenders and Their Children, 11 STAN. L. & POL'Y REV. 133, 133 (1999).
115. See Mauer, supra note 7, at 41.
116. See MARC MAUER, RACE TO INCARCERATE 143-45 (1999). One explanation for the apparent incongruence in the number of drug arrests and drug offenses is explained by the fact that every drug arrestee's chances of receiving a prison term increased by 447 percent between 1980 and 1992. Id. at 151.
117. Id. at 145.
118. Id. at 152. At the state level, the number of drug offenders in prison over that same time increased by 478%, compared to a rise of 119% for all offenses. Id.
119. Id. at 118. According to the Census Bureau, African Americans made up only 12.9% of the population in 2000, yet they comprised 46.2% of those incarcerated. See Chin, supra note 6, at 262. Hispanics are also disproportionately affected by the criminal justice system, but this Note concentrates primarily on African Americans in order to more effectively draw comparisons with literacy tests in the Jim Crow era. Moreover, there is far less data on Hispanics than on African Americans.
120. Fellner & Mauer, supra note 29, at 12. In the early 1990s, for example, 63% of all prisoners in Illinois were black (compared to 15% of the population); roughly 80% of New York inmates were minorities. KEYSSAR, supra note 12, at 307.
121. MAUER, supra note 97, at 124-25.
122. See, e.g., Alfred Blumstein, Racial Disproportionality of U.S. Prison Populations Revisited, 64 COLO. L. REV. 743 (1993).
123. MAUER, supra note 97, at 127.
124. Id. at 138.
125. Chin, supra note 6, at 266.
126. KEYSSAR, supra note 12, at 307. For property offenses and misdemeanors, for example, minorities were notably more likely to receive jail terms, resulting in an additional 4000 sentences per year for minorities in New York state. See MAUER, supra note 97, at 131.
127. MAUER, supra note 97, at 130. The Supreme Court has cited the Baldus study approvingly, yet refused to overturn the death penalty on equal protection grounds, ruling that an individual must show that his particular case was subject to racial bias under the Equal Protection Clause. See McCleskey v. Kemp, 481 U.S. 279 (1987).
128. Chin, supra note 6, at 269-70.
129. MAUER, supra note 97, at 131.
130. Mauer, supra note 7, at 41.
131. Fellner & Mauer, supra note 29, at 13.
132. MAUER, supra note 97, at 152.
133. Id. at 147.
134. Id. at 145, 149.
135. Chin, supra note 6, at 254. Chin also notes that drug crimes are associated with the greatest number and severity of collateral consequences. He cites the Bureau of Justice Assistances, which lists more than seventy-five benefits potentially affected, including federally funded health care programs, housing, food stamps, education aid, and employment in a broad array of industries. Id. at 259-60.
136. DAVID F. MUSTO, THE AMERICAN DISEASE: ORIGINS OF NARCOTIC CONTROL 294-295 (3d ed., Oxford Univ. Press 1999), cited in Chin, supra note 6, at 257.
137. See MAUER, supra note 97, at 106.
138. See United States v. Armstrong, 517 U.S. 456, 479-80 (1996) (Stevens, J., dissenting). In this case, the majority determined that in order to establish an entitlement for discovery on a selective prosecution claim based on race, a defendant must show that a similarly situated white person was not prosecuted for the same charge. This decision has effectively foreclosed claims of selective prosecution in the criminal justice system because the standard is impossible to meet. Although Justice Stevens may have confused drug use with drug trafficking in his dissent, the statistical discrepancy is so significant that this mishap does not fully explain the difference.[0]
139. MAUER, supra note 97, at 134. Mauer also notes the criminal distinction enforced between drunk driving and drug possession. Although drunk drivers are almost certainly more dangerous to society than those who possess drugs, drug possession offenders can receive up to five years in prison for a first offense, whereas drunk drivers are generally treated as misdemeanants. In addition, seventy-eight percent of those arrested for drunk driving are white, while those convicted of drug possession are disproportionately minorities. Id. at 135.
140. MICHAEL TONRY, MALIGN NEGLECT: RACE, CRIME AND PUNISHMENT IN AMERICA 49 (1995), cited in Chin, supra note 6, at 263.
141. MAUER, supra note 97, at 148.
142. Chin, supra note 6, at 270. Mauer also notes that drug treatment remains popular and available for middle-class drug users, both before and after the criminal justice system becomes involved. These opportunities are in "short supply" for low-income individuals. MAUER, supra note 97, at 135.
143. See, e.g., David A. Harris, The Reality of Racial Disparity in Criminal Justice: The Significance of Data Collection, 66 LAW & CONTEMP. PROBS. 71 (2003);
144. David A. Harris, The Stories, the Statistics, and the Law: Why "Driving While Black" Matters, 84 MINN. L. REV. 265 (1999). Harris notes that research demonstrates officers are actually less likely to find contraband or uncover other criminal behavior when they use race or ethnicity as a factor in determining whom to stop and search than if they use a nonracial focus on suspicious behavior.
145. MAUER, supra note 97, at 128-29.
146. Ewald, supra note 7, at 1130 n.339.
147. See Behrens et al., supra note 78, at 560. No other democratic nation has felon disenfranchisement laws as broad as those of the United States. For more information on disenfranchisement provisions in other countries, see id. at 562 n.3; Fellner & Mauer, supra note 29, at 17-18.
148. KEYSSAR, supra note 12, at 308.
149. Uggen & Manza, supra note 4, at 782.
150. Fellner & Mauer, supra note 29, at 8.
151. The Sentencing Project, Felony Disenfranchisement Laws in the United States (2004), at http://www.sentencingproject.org/pdfs/1046.pdf (last visited Nov. 2, 2004).
152. Id. In fact, ex-convicts constitute forty percent of the disenfranchised population in the United States.
153. Id. For a more detailed breakdown of the current nuances of criminal disenfranchisement laws in various states, see Ewald, supra note 7, at 1054 n.23; Saxonhouse, supra note 7, at 1604-06.
154. Karlan, Convictions and Doubts, supra note 7, at 1157 (citing the 1870 national census, which counted approximately 1,083,484 black men in the United States over the age of twenty). Recent studies estimate that there are 1.8 million African American felons and ex-felons who are disenfranchised. Uggen & Manza, supra note 4, at 780. In the 1996 presidential election, only 4.6 million black men voted. Fellner & Mauer, supra note 29, at 8.
155. Fellner & Mauer, supra note 29, at 2.
156. One Person, No Vote, supra note 7, at 1941 n.18.
157. Fellner & Mauer, supra note 29, at 8. Since the controversial election of 2000, Florida's criminal disenfranchisement provisions have received the most attention from scholars and journalists. Uggen and Manza note that Florida has more disenfranchised felons than any other state (827,000). Uggen & Manza, supra note 4, at 792. Florida's 436,900 disenfranchised ex-felons comprise one-third of all disenfranchised ex-felons in the nation. Fellner & Mauer, supra note 29, at 7-9. In fact, approximately 10.5% of the voting-age black population in Florida consists of disenfranchised ex-felons. See Johnson v. Bush, 353 F.3d 1287, 1293 (11th Cir. 2003), vacated by 377 F.3d 1163 (11th Cir. 2004).
158. Fellner & Mauer, supra note 29, at 13.
159. Marc Mauer, Mass Imprisonment and the Disappearing Voters, in INVISIBLE PUNISHMENT, supra note 93, at 50, 52.
160. Uggen & Manza, supra note 4, at 792. Uggen and Manza controlled for a variety of variables and estimated that ex-felons would vote in similar fashion to those of their socioeconomic group (i.e., seven in ten would vote Democratic). Id. at 786. They estimated felon turnout to be less than that of nonfelons, and that even if felons had turned out at only half the rate of nonfelons, Gore still would have won. Id. at 792. This past summer, Florida governor Jeb Bush scrapped a felon purge list that would have eliminated nearly 48,000 registered voters because the list was found to be inaccurate. See Mary Ellen Klas, State Kills Flawed Felon Purge List, MIAMI HERALD, July 10, 2004, available at 2004 WL 85397829. Of the 48,000 people on the list, 28,000 were registered Democrats while only 9500 were registered Republicans.
161. See Chris Davis & Mathew Doig, Voter-Purge Decision Could Haunt Jeb Bush, SARASOTA HERALD-TRIB. (Sarasota, Fla.), July 13, 2004, at A1. Notably, blacks comprised more than 22,000 people on the lists; whites made up slightly more than 24,000. Id.
162. Uggen & Manza, supra note 4, at 789-90.
163. Behrens et al., supra note 78, at 596.
164. Id. at 599.
165. See id. at 583 n.13. In 2000, Delaware abandoned its requirement that ex-offenders must receive a pardon in order for their civil rights to be restored; they must now wait five years. Since July 1, 2001, New Mexico has automatically restored voting rights upon completion of sentence. As of January 1, 2003, Maryland requires a three-year waiting period before restoring the franchise to most recidivists. In 2003, Nevada liberalized its law and now restores voting rights to nonviolent first-time felons upon completion of sentence. Id. For more information on recent developments in felon disenfranchisement laws, see The Sentencing Project, Legislative Changes on Felony Disenfranchisement, 1996-2003 (2003) at http://www.sentencingproject.org/pdfs/legchanges-report.pdf (last visited Nov. 2, 2004).
166. Karlan, Ballots and Bullets, supra note 7, at 1370. Hawaii was the last state to enact a criminal disenfranchisement provision for ex-felons; it did so when it gained statehood in 1959. Behrens et al., supra note 78, at 564.
167. According to a recent study, approximately 80% of Americans believe that ex-felons should vote, between 60% and 68% would permit probationers to vote, and around 60% of Americans believe parolees should vote. Only 31% believe that prisoners should vote. See Jeff Manza et al., "Civil Death" or Civil Rights? Public Attitudes Towards Felon Disfranchisement in the United States (Mar. 4, 2003), at http://www.socsci.umn.edu/~uggen/POQ8.pdf (last visited Nov. 8, 2004).
168. U.S. Comm'n on Civil Rights, Voting Irregularities in Florida During the 2000 Presidential Election - Executive Summary (2001), http://www.usccr.gov/pubs/vote2000/report/exesum.htm (last visited Nov. 24, 2004). For more analysis of the voting issues surrounding Florida's 2000 election,
169. see Paul M. Schwartz, Voting Technology and Democracy, 77 N.Y.U. L. REV. 625 (2002).
170. Karlan, Convictions and Doubts, supra note 7, at 13-14.
171. U.S. Comm'n on Civil Rights, supra note 147.
172. David Margolick et al., The Path to Florida, VANITY FAIR, Oct. 2004, at 310, 312.
173. Karlan, Convictions and Doubts, supra note 7, at 1158.
174. Scott Hiaasen et al., Felon Purge Sacrificed Innocent Voters, PALM BEACH POST (Palm Beach, Fla.), May 27, 2001, at 1A.
175. Id.
176. Id. The analysis showed that more than 1300 registered voters were matched with felons even though their race or sex was wrong. The study also shows that ultimately, approximately half the people on the purge list were removed from the voter rolls.
177. Id.
178. See supra note 140; see also Mark Caputo, Questions over Felon 'Purge List' Threaten Bush, MIAMI HERALD, July 4, 2004, at 1A (noting that a Herald investigation revealed that 2100 people on the purge list had already had their right to vote restored by the state's clemency process). Notably, the Herald study revealed that the highest concentration of voters incorrectly placed on the purge list hailed from the most densely African American zip code in the state, which is located in Fort Lauderdale. Id.
179. See Schwartz, supra note 147, at 690 (noting that Georgia's election system produced a greater spoilage rate of ballots than Florida's). Of course, ballot-spoilage rate and the implementation of felon disenfranchisement provisions are separate matters. But the fact that Georgia's system was so bad yet has still gone largely unnoticed supports the theory that other voting registration or exclusion instruments are similarly implemented in a subpar manner.
180. Mauer, supra note 139, at 55-56.
181. Id. at 56. For example, in Alabama a DNA test is required before one's right to vote is restored, yet only four out of sixty-seven counties are equipped to administer the test. During one two-year span in Virginia, only 404 ex-felons regained the right to vote, out of more than 200,000 in the state. And in Mississippi, an ex-offender must receive an executive order from the Governor or pass a bill through the legislature in order to restore her voting rights. Id.
182. Fellner & Mauer, supra note 29, at 6.
183. See One Person, No Vote, supra note 7, at 1945.
184. Id. at 1945-46; see also Gary Kane & Scott Hiaasen, Clemency Process Unfair to Blacks?, PALM BEACH POST (Palm Beach, Fla.), Dec. 23, 2001, at 1A.
185. Kane and Hiaasen, supra note 162.
186. Debbie Cenziper & Jason Grotto, Clemency Proving Elusive for Florida's Ex-Cons, MIAMI HERALD, Oct. 31, 2004, at A1. And if all ex-felons applied for clemency, it would, at the current rate, take two hundred years to address each application.
187. Jason Grotto & Debbie Cenziper, The Long Road to Clemency, MIAMI HERALD, Nov. 7, 2004, at A1.
188. Id. If an applicant had unpaid costs of more than $1000, automatic restoration was no longer available, and he had to hope he was one of the few who received a clemency hearing.
189. Wyatt Olson, Barred for Life: The Process for Restoring the Civil Rights of Felons in Florida Works Perfectly - If Not Restoring Their Rights Is the Goal, MIAMI NEW TIMES, Jan. 16, 2003,
190. LexisNexis, Miami New Times (Florida) database. The new, simplified application process preserves the discretion of the old form, and also "considers" several factors, including whether the applicant has accrued any traffic offenses since the conviction.
191. See Fla. Parole Comm'n, Information and Instructions on Applying for Restoration of Civil Rights, at http://www.state.fl.us/fpc/PDFs/clemency/ InformationandInstructionsonApplyingforRestorationofCivilRights.PDF (last visited Nov. 3, 2004).
192. Florida Caucus of Black State Legislators, Inc. v. Crosby, 877 So. 2d 861 (Fla. Dist. Ct. App. 2004); see also Tamara Lush, Bush Dumps Request Form for Clemency, ST. PETERSBURG TIMES (St. Petersburg, Fla.), July 23, 2004, at 1B.
193. Id. About 15% of applicants in Florida can have their voting rights automatically restored; of the remaining 85%, only a lucky few received a hearing before the governor and his cabinet to determine if restoration was appropriate. Margolick et al., supra note 150, at 363. By 2002, Florida had a backlog of 62,000 ex-felons seeking restoration of their voting rights. Id. at 361. Clemency hearings occur four times a year. In each sitting, the governor invites between 60 and 130 applicants at a time. Id. at 363. Prodded by a legal challenge led by the Florida Caucus of Black State Legislators, which alleged that 124,000 people from 1992 to 2001 had been denied their restoration application materials, Governor Bush announced this summer that since June 2003, more than 20,000 ex-felons' voting rights were restored. Id. at 363-64. It was unclear, however, how many more ex-felons had their rights restored than were required by the Crosby ruling. See Johnson v. Bush, 353 F.3d 1287, 1293 (11th Cir. 2003), vacated by 377 F.3d 1163 (11th Cir. 2004).
194. David A. Singleton & Breean Walas, The Disenfranchisement of the Reenfranchised: How Confusion over Felon Voter Eligibility in Ohio Keeps Qualified Ex-Offender Voters from the Polls (Aug. 2004), at http://www.prisonreform.com/reports/Ohio%20Felon%20Voting%20Rights%20Paper.pdf (last visited Nov. 22, 2004). Ohio only prevents prisoners from voting; individuals on parole or probation may vote.
195. Brennan Ctr. for Justice, Right to Vote Research Toolkit, at http://www.brennancenter.org/programs/downloads/vr_righttovote.pdf (last visited Nov. 24, 2004).
196. See One Person, No Vote, supra note 7, at 1962.
197. Id. at 1963.
198. In Farrakhan v. Washington, plaintiffs alleging that the restoration procedures in Washington violated the Voting Rights Act had this claim dismissed for lack of standing. 338 F.3d 1009, 1022 (9th Cir. 2003), cert. denied, 2004 WL 2058775 (Nov. 8, 2004).
199. See Note, The Disenfranchisement of Ex-Felons: Citizenship, Criminality, and "The Purity of the Ballot Box," 102 HARV. L. REV. 1300, 1313 (1989) [hereinafter Purity of the Ballot Box]. The term originated in the courts in an 1884 Alabama case, Washington v. State, 75 Ala. 582, 585 (1884).
200. Though vitally important and instructive, this material is beyond the scope of this Note. For doctrinal arguments debunking felon disenfranchisement as a regulatory provision, see generally Fellner & Mauer, supra note 29; Marc Mauer, Felon Voting Disenfranchisement: A Growing Collateral Consequence of Mass Incarceration, 12 FED. SENTENCE REP. 248 (2000); Shapiro, supra note 31;
201. Purity of the Ballot Box, supra note 174. For constitutional and theoretical critiques of the punitive foundations of felon disenfranchisement,
202. see George P. Fletcher, Disenfranchisement as Punishment: Reflections on the Racial Uses of Infamia, 46 UCLA L. REV. 1895, 1901 (1999);
203. Karlan, Ballots and Bullets, supra note 7;
204. Karlan, Convictions and Doubts, supra note 7, at 1164-69. Few, if any, supporters or critics of felon disenfranchisement believe that it serves any rehabilitative purpose.
205. See Purity of the Ballot Box, supra note 174, at 1303. Since most crimes do not relate to elections, voter fraud rationales are remarkably overinclusive because the "provision is not limited to those who have demonstrated a marked propensity for abusing the ballot by violating election laws." See Richardson v. Ramirez, 418 U.S. 24, 79 (1974) (Marshall, J., dissenting). This rationale is also underinclusive since some states, such as Mississippi, do not disenfranchise voter fraud offenders. Id. Moreover, one need not be a registered voter to bribe an election official or commit electoral misconduct. And there are numerous criminal offenses available "to deter and to punish electoral misconduct." Id. at 81.
206. See Mauer, supra note 175. In an oft-cited opinion, Judge Friendly explained this rationale: "It can scarcely be deemed unreasonable for a state to decide that perpetrators of serious crimes shall not take part in electing legislators who make the laws, the executives who enforce these, the prosecutors who must try them for further violations, or the judges who are to consider their cases." Green v. Bd. of Elections, 380 F.2d 445, 451 (2d Cir. 1967). On the other hand, Mauer describes how difficult it would be for a group of ex-offenders to unify, organize, and present a candidate who receives more than fifty percent of the vote, who then convinces more than half the legislators to pass his antidemocratic bill. See Mauer, supra note 175, at 250. This fact pattern is so fanciful that one need not even address the fundamental notion that ex-offenders with experience in the criminal justice system would irrationally want to pass laws promoting crime, a notion which has no empirical support.
207. See Fellner & Mauer, supra note 29, at 15.
208. But since an ex-offender must still pay taxes, must obey the existing laws after she is out of prison, and still retains other rights (such as the right to marry and divorce), some argue that the "social contract" only goes one way. For an excellent critique of the "social contract" argument, see Johnson-Parris, supra note 7. Johnson-Parris argues that upon reentering society, an ex-felon effectively creates a second contract with society in which the nonincarcerated felon shares the obligations of the social contract with other nonfelon members of society but does not receive the same benefits. This second contract may be deemed unconscionable because the ex-felon does not receive the same benefits as others in a similar situation. Id. at 113. Furthermore, it is unrealistic to expect a citizen to agree to a contract that is nullified by a single breach. See Purity of the Ballot Box, supra note 174, at 1305.
209. See Behrens et al., supra note 78, at 571. According to Uggen and Manza's important study of political effects of felon disenfranchisement, McConnell is one of the seven senators who likely won his first election as a result of felon disenfranchisement. Uggen & Manza, supra note 4, at 788. Opponents of felon disenfranchisement also make vote dilution arguments based on the fact that the decennial census counts prisoners as residents of the county where they are imprisoned, not as residents of their home neighborhoods. For more on how prisoners dilute the vote of African American communities, including a discussion of how this dilution compares with that created by the "three-fifths clause" of the original Constitution, see Karlan, Convictions and Doubts, supra note 7, at 1160.
210. See Mauer, supra note 139, at 54. Historian Alexander Keyssar explains that proponents argued that "men who could not be legally relied on to tell the truth . . . would corrupt the electoral process. They also expressed the fear that enfranchised ex-felons might band together and vote to repeal the criminal laws. Both arguments were at best conjectural." KEYSSAR, supra note 12, at 163.
211. See Purity of the Ballot Box, supra note 174, at 1307-10.
212. Washington v. State, 75 Ala. 582, 585 (1884).
213. Shepherd v. Trevino, 575 F.2d 1110, 1115 (5th Cir. 1978), cert. denied, 439 U.S. 1129 (1979). The Supreme Court denied certiorari despite the fact that it had previously ruled that "'[f]encing out' from the franchise a sector of the population because of the way they may vote is constitutionally impermissible." Carrington v. Rash, 380 U.S. 89, 94 (1965).
214. Behrens et al., supra note 78, at 573 (emphasis added).
215. See Bobo & Smith, supra note 51, at 186.
216. Id. (emphasis added). "Laissez-faire racism blames blacks themselves for the black-white gap in socioeconomic standing and actively resists meaningful efforts to ameliorate America's racist social conditions and institutions." Id.
217. Behrens et al., supra note 78, at 574.
218. See Purity of the Ballot Box, supra note 174, at 1311.
219. See Travis, supra note 93, at 19. According to Senator McConnell, "[w]e are talking about rapists, murderers, robbers, and even terrorists or spies." Behrens et al., supra note 78, at 572. Behrens, Uggen, and Manza estimate that offenders convicted of these crimes represent approximately twenty-two percent of the total state and federal prison population, and a far smaller share of the probation, parole, and ex-felon populations. Id. at 573 n.7.
220. See Ewald, supra note 7, at 1128-29.
221. Id. A growing number of works of authorship address this connection between race and crime. For more information on the racialization of crime, see id. at 1128 n.333.
222. See Fletcher, supra note 175, at 1897. Ewald notes that being "tough on crime" naturally indicates taking steps with the aim of reducing crime. "But glaringly absent from the historical and legal literature on disenfranchising offenders - whether temporarily or permanently - is the claim that imposing the sanction reduces crime." Ewald, supra note 7, at 1107.
223. See Fletcher, supra note 175, at 1897.
224. 539 U.S. 461 (2003). In Ashcroft, the Court, for the first time, acknowledged that minorities may enhance their political power by reducing the number of safe districts - those where the minority representative of choice is all but guaranteed to win - and adding more influence in other districts.
225. As amended in 1982, section 2 provides, in relevant part: (a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgment of the right of any citizens of the United States to vote on account of race or color . . . . Voting Rights Act Amendments of 1982 § 3, 42 U.S.C. § 1973 (2000). The Supreme Court has recognized that Congress passed this amended version of section 2 with the express purpose of eliminating the requirement that minority voters challenging a voting practice or procedure must show discriminatory intent as well as a discriminatory effect. See Thornburg v. Gingles, 478 U.S. 30, 43-44 (1986).
226. Wesley v. Collins, 791 F.2d 1255, 1262 (5th Cir. 1986); see also Muntaqim v. Coombe, 366 F.3d 102 (2d Cir. 2004) (holding that the Voting Rights Act does not apply to New York's felon disenfranchisement law), cert. denied, 2004 WL 2072975 (Nov. 8, 2004).
227. Farrakhan v. Washington, 338 F.3d 1009, 1020 (9th Cir. 2003), cert. denied, 2004 WL 2058775 (Nov. 8, 2004); see also Johnson v. Bush, 353 F.3d 1287 (11th Cir. 2003), vacated by 377 F.3d 1163 (11th Cir. 2004). In both cases, the courts received substantial statistical and empirical evidence, as well as various expert reports, outlining the existing "nexus between disenfranchisement and racial bias in other areas, such as the criminal justice system." Johnson, 353 F.3d at 1306. In Johnson, the court recognized that "differential treatment results, at least in part, from racial and ethnic bias on the part of enough individual police officers, prosecutors, and judges to make the system operate as if it intended to discriminate against non-whites." Id. at 1306 n.26; see also Karlan, Convictions and Doubts, supra note 7, at 1163-64.
228. 353 F.3d 1287.
229. 338 F.3d 1009.
230. 791 F.2d 1255.
231. See, e.g., Johnson, 353 F.3d at 1305 n.24.
232. Id. at 1305 (quoting Thornburg v. Gingles, 478 U.S. 30, 47 (1986)).
233. Farrakhan, 338 F.3d at 1019. In other words, the "by itself inquiry does not permit an analysis of the interaction between the voting practice - in this case, felon disenfranchisement provisions - and other "social or historical conditions."
234. Id. According to the legislative history of amended section 2, "even a consistently applied practice premised on a racially neutral policy would not negate a plaintiffs showing through other factors that the challenged practice
235. See Farrakhan, 338 F.3d at 1020.
236. See Bush v. Vera, 517 U.S. 952, 992 (1996) (O'Connor, J., concurring) ("We should allow States to assume the constitutionality of § 2 of the VRA, including the 1982 amendments.").
237. See City of Boerne v. Flores, 521 U.S. 507, 532 (1997).
238. Muntaqim v. Coombe, 366 F.3d 102, 115 (2d Cir. 2004), cert. denied, 2004 WL 2072975 (Nov. 8, 2004).
239. Farrakhan v. Washington, 359 F.3d 1116 (9th Cir. 2004) (denial of rehearing en banc) (Kozinski, J., dissenting).
240. Id. at 1124 (quoting City of Boerne, 521 U.S. at 532).
241. Id. at 1123-24. For this reason, Washington may not be the right state for felon disenfranchisement opponents to bring a Voting Rights Act claim. A state such as Mississippi, which has a history of discriminatory voting practices, might present a more persuasive case against the provisions.
242. For a thorough analysis of the constitutionality of amended section 2, see Pamela S. Karlan, Two Section Twos and Two Section Fives: Voting Rights and Remedies After Flores, 39 WM. & MARY L. REV. 725, 726 (1998) (arguing that the disparate impact test of section 2 of the Voting Rights Act is properly "designed to address prior unconstitutional discrimination, both within and outside the electoral process, as well as to prevent future invidious conduct");
243. Jennifer G. Presto, The 1982 Amendments to Section 2 of the Voting Rights Act: Constitutionality After City of Boerne, 59 N.Y.U. ANN. SURV. AM. L. 609, 610 (2004) (concluding that although Congress may not have examined sufficient evidence to satisfy the standard articulated in City of Boerne, "the Court may have left open some room in its holding that preserves the constitutionality of the amendments").
244. Farrakhan, 359 F.3d at 1123 (quoting Oregon v. Mitchell, 400 U.S. 112, 234 (1970) (Brennan, J., concurring)) (alterations in original).
245. Id. Judge Kozinski does acknowledge that literacy tests "do not in and of themselves violate the Constitution." Id. at 1120.
246. See supra notes 32, 66 and accompanying text.
247. Mitchell, 400 U.S. at 132 (majority opinion). The Court was also swayed by statistics showing that minorities voted more in states that did not have literacy tests than in ones that did. Id. at 133. But it is unclear how Judge Kozinski can justify the use of "statistical disparities" to justify a prophylactic statute in the Mitchell context, while refusing to consider ones pertaining to the current criminal justice system.
248. See Farrakhan, 359 F.3d at 1120 ("This legislative history demonstrates that Congress recognized the long tradition of felon disenfranchisement laws when it enacted the VRA.").
249. See supra note 89.
250. See Johnson v. Bush, 353 F.3d 1287 (11th Cir. 2003) (holding that mere constitutional reenactment, without addressing the racially discriminatory intent of the provision, does not erase the racial taint of the original provision for equal protection purposes), vacated by 377 F.3d 1163 (11th Cir. 2004); see also infra note 233 and accompanying text.
251. 383 U.S. 301 (1966).
252. 400 U.S. 112.
253. Section 2 of the Fourteenth Amendment, often referred to as the reduction-inrepresentation clause, provides: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. U.S. CONST. amend. XIV, § 2 (emphasis added).
254. Richardson v. Ramirez, 418 U.S. 24, 54 (1974).
255. Id. at 55.
256. See, e.g., David L. Shapiro, Mr. Justice Rehnquist: A Preliminary View, 90 HARV. L. REV. 293, 302-04 (1976);
257. Note, The Supreme Court, 1973 Term: Disenfranchisement of Former Criminal Offenders, 88 HARV. L. REV. 101 (1974).
258. For a particularly strong critique of the opinion, see Ewald, supra note 7, at 1066-72 (arguing that the textual decision of Richardson precluded the Court from addressing theoretical and principled arguments against criminal disenfranchisement, thus allowing it to avoid its previous decisions protecting voting rights as a fundamental right). Ewald also notes that even if section 2 is used, the history of the disenfranchisement of former Confederates should be a guidepost for the Court. The relevant constitutional phrase is "rebellion, or other crime," which unquestionably referred to former Confederates. Yet few states disenfranchised former Confederates, and the Amnesty Act of 1872 restored most civil rights and privileges to all Confederates. Id. at 1104. If those who committed treason can be forgiven by restoring their vote, shouldn't those who commit larceny also be similarly forgiven? See also Karlan, Convictions and Doubts, supra note 7, at 1155 ("[E]ven if criminal disenfranchisement statutes are presumptively constitutional because of Section 2 - as opposed to most other restrictions on the franchise, which are presumptively unconstitutional - their constitutionality is only presumptive: They still must serve some legitimate purpose and they cannot rest on an impermissible one."); Saxonhouse, supra note 7 (comparing felon disenfranchisement to collateral consequences concerning employment and showing that Richardson is an anomaly under the equal protection doctrine).
259. Richardson, 418 U.S. at 74 (Marshall, J., dissenting). "To say that § 2 of the Fourteenth Amendment is a direct limitation on the protection afforded voting rights by § 1 leads to absurd results," Marshall wrote. "If one accepts the premise that § 2 authorizes disenfranchisement for any crime, the challenged California provision could . . . require disenfranchisement for seduction under promise of marriage, or conspiracy to operate a motor vehicle without a muffler." Id. at 75 n.24.
260. Fletcher, supra note 175, at 1901.
261. Id.
262. 471 U.S. 222 (1985).
263. Id. at 232-33.
264. One Person, No Vote, supra note 7, at 1952. The note's author stated, "Were Hunter read literally, any disenfranchisement that produced a racially disparate impact would be presumptively unconstitutional if race was a 'motivating factor' in its enactment . . . ." Id. at 1951. But see Cotton v. Fordice, 157 F.3d 388, 392 (5th Cir. 1998) (ruling that by altering the criminal disenfranchisement provision by adding more disqualifying crimes, Mississippi erased the original racially discriminatory intent).
265. Johnson v. Bush, 353 F.3d 1287, 1297 (11th Cir. 2003), vacated by 377 F.3d 1163 (11th Cir. 2004). The court determined that the simple reenactment of the original felon disenfranchisement provision, without more, cannot erase the taint of a racially discriminatory purpose upon the original enactment. In order to eliminate the original purpose, a state must reenact its criminal disenfranchisement provision "on the basis of an independent, non-discriminatory purpose." Id. at 1301. The court added, "Retaining an originally discriminatory provision in order to preserve continuity, or out of deference to tradition, or simply due to inertia does not amount to an independent purpose sufficient to break the chain of causation between the original racial animus and the provision's continuing force as law." Id. at 1302; see also Karlan, Convictions and Doubts, supra note 7, at 1158-59.
266. See, e.g., Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 987 (1988) ("[T]he necessary premise of the disparate impact approach is that some employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to intentional discrimination."); Griggs v. Duke Power Co., 401 U.S. 424 (1971) (holding that Title VII authorized disparate impact claims).
267. See Raytheon Co. v. Hernandez, 540 U.S. 44, 53 (2003) ("Both disparate-treatment and disparate-impact claims are cognizable under the ADA.").
268. See Smith v. City of Jackson, 351 F.3d 183 (5th Cir. 2003), cert. granted. 124 S. Ct. 1724 (2004).
269. Thornburg v. Gingles, 478 U.S. 30, 44 (1986) (quoting S. REP. No. 97-417, at 36 (1982)).
270. See Voting Restoration Act, H.R. 2830, 107th Cong. (2001); Civic Participation Act of 2000, S. 2666, 106th Cong. (2000); Civic Participation and Rehabilitation Act of 1999, H.R. 906, 106th Cong. (1999).
271. See Help America Vote Act of 2002, 42 U.S.C. §§ 15301-15545 (Supp. II 2002).
272. See Brennan Ctr. for Justice, The Help America Vote Act, at http://www.brennancenter.org/programs/downloads/HAVA%20Fact%20Sheet.pdf (last visited Nov. 22, 2004).
273. See Gabrielle B. Ruda, Picture Perfect: A Critical Analysis of the Debate on the 2002 Help America Vote Act, 31 FORDHAM URB. L.J. 235 (2003);
274. Leonard M. Shambon, Implementing the Help America Vote Act, 3 ELECTION L.J. 424 (2004).
275. See supra note 144 and accompanying text.
276. The choice is somewhat attenuated, however. Few people know they will be disenfranchised if they commit a crime, so the deterrent effect is all but nonexistent. Further, when agreeing to a guilty plea, which accounts for ninety-one percent of all criminal adjudications, neither the judge nor the prosecutor must tell the defendant that he will no longer be able to vote. See Stephanos Bibas, Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 YALE L.J. 1097, 1150 (2001). Finally, this argument loses all force once a felon serves the punishment and reenters society yet still cannot vote for the rest of his life.