Monday, August 23, 2010

Does Felon Disenfranchisement Amount to Discrimination?

This question will be raised soon at the Supreme Court.

As many readers probably know, many U.S. state laws prohibit current inmates, and to differing degrees formerly incarcerated people, from voting. Accepting this as a given situation ignores other countries, in which felons (and, of course, former felons) can and do vote, and can under certain circumtances run for office. The disenfranchisement of felons has actual impact on election results: In a 2001 article, Jeff Manza conducted a fascinating quantitative quasi-experiment, proving that, had felons been allowed to vote, several U.S. senate elections, and at least one presidential election, would have come out differently.

These findings may play an important part in the upcoming discussion at the Supreme Court. SCOTUS will review a First Circuit case, Simmons v. Galvin, in which Massachusetts inmates argued against a 2000 legislative amendment disenfranchising felons. The argument is rather creative, and it goes as follows:

 (1) ... the Commonwealth's disenfranchisement provisions violated the Voting Rights Act (“VRA”) § 2, 42 U.S.C. § 1973, because the percentage of imprisoned felons who are Hispanic or African-American is higher than the percentages of those groups in the population of the state;  and (2) that the provisions violated the Ex Post Facto Clause, U.S. Const. art.   I, § 10, as to those inmates who were not disqualified from voting before the these provisions took effect.   As to their claim under the VRA, the plaintiffs make no allegation of any intentional discrimination or of any history by Massachusetts of intentional discrimination against minority voters.   All they have claimed is that past practices in the Massachusetts criminal justice system produced inmate populations which, in combination with the disqualification of inmates imprisoned for felonies, have resulted in disproportionate disqualification of minorities from voting.   Theirs is a claim of disparate impact.

The 1st Circuit found that the Voting Rights Act was not violated; that is, that it never intended to prevent states from disenfranchising felons. Citing a 1967 case:

[I]t can scarcely be deemed unreasonable for a state to decide that perpetrators of serious crimes shall not take part in electing the 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.

That said, there is still room to argue that the disenfranchisement of felons, combined with the de facto overrepresentation of minorities, amounts to racial discrimination, which goes against the voting rights act. This is an interesting argument, and I expect it will not be an easy one to raise in the Supreme Court; our approach toward discrimination tends to rely a lot (too much) on questions of intent. In any case, it will be a discussion worth following.


Jesse said...

Yes: under our current criminal justice system, felon disenfrachisement is discrimination (my opinion).

Hadar Aviram said...

I agree with the essence of this. I find it hard to believe, however, that proof of de-facto overrepresentation will amount to a finding that there's intentional discrimination. The counterargument, of course, is "well, the fact that minorities HAPPEN to be overrepresented in prison population does not change the rationales behind felon disenfranchisement."