Can Congress force States to let ex-felons vote?

Great Debates
1

There is a bill (H.R.1, 117th Cong.) before the Senate called the "For the People Act of 2021". Section 1403 of said bill (Title I, Subtitle E) reads,

The right of an individual who is a citizen of the United States to vote in any election for Federal office shall not be denied or abridged because that individual has been convicted of a criminal offense unless such individual is serving a felony sentence in a correctional institution or facility at the time of the election.

I support the right of ex-felons to vote. I supported the measure to guarantee that right in my state constitution. But I think it is unconstitutional for the federal government to make such a law.

Why? Art. I, sec. 2, cl. 1 of the United States Constitution.

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

The Constitution explicitly says that the electors for the House of Representatives shall have the qualifications for the electors in the most numerous branch of the State legislature. Congress doesn’t have the power to directly legislate who is qualified to vote.

~Max

2

In section 1402 of the bill, Congress attempts to justify its exercise of power. It basically comes down to two claims, which I shall now counter.

“Article I, section 4, of the Constitution grants Congress ultimate supervisory power over Federal elections, an authority which has repeatedly been upheld by the Supreme Court.”

We’re talking about legislating voter qualifications under Art I section 4. Far from being repeatedly upheld, the relevant case is Oregon v Mitchell, 400 U.S. 112 (1970). There, a plurality held that Congress could legislate voter qualifications (lower the minimum age) for federal elections, but a different plurality also held that Congress could not legislate qualifications for state elections. At no point could five Justices agree on rationale for either holding; as such it has no precedential value. These are of course contradictory holdings since the qualifications are required by the Constitution to be the same (Art. 1, section 2, cl. 1). The Court totally failed to settle the issue and ended up with a constitutional amendment (26th Amendment) saying 18 year-olds could vote.

“Basic constitutional principles of fairness and equal protection require an equal opportunity for citizens of the United States to vote in Federal elections. The right to vote may not be abridged or denied by the United States or by any State on account of race, color, gender, or previous condition of servitude. The 13th, 14th, 15th, 19th, 24th, and 26th Amendments to the Constitution empower Congress to enact measures to protect the right to vote in Federal elections. The 8th Amendment to the Constitution provides for no excessive bail to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

The argument that felons’ voting rights were protected by the 14th Amendment was struck down by the Supreme Court in Richardson v Ramirez, 418 U.S. 24 (1974). The 13th, 19th, 24th, and 26th Amendments are wholly irrelevant.

The 15th Amendment states of relevance, “The right to vote may not be abridged or denied […] by any State on account of […] previous condition of servitude.” If Congress prohibits a state which currently allows ex-felons to vote from abridging that right going forward, I would say that’s fine. But the way I see it a felon’s right to vote is abridged (literally, cut short) when they are convicted, not due to previous condition of servitude, but right there when the sentence is passed. After a right is taken away, it’s gone. Legally speaking it doesn’t make sense to say your right to vote is being denied in 2022 if it was legally taken away in 1969 or something (i.e. conscientious objector for Vietnam draft).

Which brings us to the 8th Amendment. Is disenfranchisement a cruel and unusual punishment for a felony? I think most of the time, it is. But there are some felonies such as voter fraud where I think disenfranchisement is neither cruel nor unusual. As the present bill makes no distinction I cannot endorse it.

~Max

3

I agree on both counts. Felons should have the right to vote, but I don’t think the US Congress has very solid grounds for mandating it.

I find the 8th Amendment argument unconvincing. A cruel punishment is one that is painful or particularly nasty. An unusual one is particularly weird. Disenfranchisement is neither.

The reason to oppose disenfranchisement for crimes is not that it’s a particularly nasty punishment, it’s that it’s toxic for civil society. The carceral state is biased and awful and we need checks on it. If there are enough felons that their votes would swing elections (and there are in many places), then the outcome of our system is anti-democratic. But that’s not what the 8th Amendment is about.

The fact that the 15th Amendment only specifies some prohibited reasons for disenfranchisement is another point against this. There’s weak evidence that this indicates that Congress doesn’t have the power (because they passed an amendment), but strong evidence that the 8th Amendment doesn’t cover this. The people who wrote the 15th Amendment were aware of the 8th Amendment and could have also specified “punishment for crimes”, or just stopped adding words to the 15th after “by any State”.

4

The fifteenth works just fine for me. The 14th says that imprisonment for a crime is a sanctioned form of servitude. And then the 15th explicitly mentions past servitude as not being an allowable reason to deny voting rights (for Federal office).

One issue might be that not all felony crimes result in imprisonment, but I do think you can still argue that they all involve infringing on the freedom, and are allowed due to the 14th Amendment.

I don’t see Article 1 section 2 as sufficient to override this, as (1) Amendments have priority over Articles and (2) It doesn’t establish that the states have carte blanche in deciding what the voter qualifications are for their largest legislative body.

It’s not like, say, a state could argue that only people who own dogs get to vote for that state’s legislature.

That said, I don’t expect the conservative Supreme Court to see it this way, and I do expect that Republicans would challenge it up that far.

5

But the right to vote is abridged as a punishment for the crime, the basis isn’t previous servitude, it is criminal behavior. See also the second-last paragraph of post #2.

The presumption is that the State has the power until shown otherwise. From the 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

It is exactly like that. For a long time the States not only could but actually did restrict the franchise to landowning citizens. Nothing in the Constitution prevents them from going back if they so pleased (or allows Congress to prevent them). Well at least not for electing Representatives. The Senate may possibly be controlled by the 17th amendment.

~Max

6

The purpose of that clause is so prevent laws that say “Anyone who’s been a slave can’t vote”. “Servitude” doesn’t mean imprisonment in this context. It means slavery.

The 14th’s exception for punishment for a crime means that forced labor of convicted criminals is allowed.

7

I think this would be read pretty clearly as an attempt to prevent a state from getting creative and saying “we aren’t denying the vote to blacks. No, siree, only to those people who were previously slaves.”

8

Also Art I Section 4 seems like a huge stretch. Times, places and manner, not who may vote.

9

I agree with the latter. The 8th Amendment question (outside of the death penalty context) is not whether a punishment is excessive or disproportioned to the crime, but whether the method of punishment is cruel and unusual itself. See Harmelin v. Michigan.

However it is difficult to say that disenfranchisement is a punishment at all because as is noted:

Nobody would have said that a state was “punishing” non-landowners, but merely restricting its franchise to those who have shown themselves to have sufficient ties to the community or be sufficiently responsible to vote. We don’t let children vote, for example, although nobody would say we are punishing them.

A decision that someone who commits a felony (punishable by death at common law) is not someone we can trust to vote for reasons which benefit society is simply a regulation of the polity and not a punishment for a crime.

10

Are you confusing the 14th with the 13th?

11

The precedent here is Oregon v. Mitchell, in which the Court held it was constitutional for Congress to directly legislate who could vote in a federal election. The For the People Act of 2021 specifically states it applies only to federal elections. Your argument against a 52 year old precedent comes down to “It’s not constitutional despite a Supreme Court ruling that suggests it is.” Some federal laws or other court cases to support your position (that weren’t overturned by Oregon) would be helpful.

12

I thought that the OP handled the question accurately. There was no “precedent” in Oregon v. Mitchell as you had 4 Justices ruling that Congress had the power to regulate an 18 year old age limit in both state and federal elections. You had 4 Justices who ruled that it had the power in neither. You had a fifth vote that said Congress had the power in federal, but not state elections. There is no controlling decision in that case and the “majority of one” as the OP pointed out expressly conflicts with the plain text of the Constitution.

The Court recently overruled a unanimous jury requirement in Ramos v. Louisiana based on a similar “majority of one.” By controlling law, Oregon v. Mitchell is not precedent at all.

13

IANAL so I don’t know if “precedent” has a specific legal meaning. Let me rephrase my point.

The argument would have more weight with me if the OP were to show federal laws or court cases since Oregon v. Mitchell regarding elections that deny that Congress has the authority to legislate who can vote in federal elections.

14

Six Justices opined that the 8th Amendment requires a proportionality test, which makes sense seeing as there is a proportionality test for capital cases and the text makes no distinction between capital and non-capital punishment. But of these six, three thought the life sentence for cocaine possession was impermissable and three thought it was okay, so they didn’t get to write the opinion. Only two Justices (Scalia & Rehnquist) took your position, that the 8th doesn’t require a proportionality test for the crime. Their position isn’t the Court’s either, even though they wrote the opinion.

If you go back and read the actual opinion, only part IV is a holding by the majority of the court, which says that severe mandatory penalties with no consideration of mitigating factors are not “unusual” for the purpose of the 8th Amendment just because it is mandatory.

It’s not a punishment to take away something you don’t have in the first place. Disenfranchisement doled out upon conviction is quite a bit different from qualifications on the franchise in the first place.

~Max

15

I don’t believe there has been any occasion for such a case. When Oregon v Mitchell failed to resolve the issue spectacularly, the 26th Amendment was passed the very next year making the question of age qualifications moot.

Put it this way. If I am wrong, if Art. I, sec. 4, cl. 1 gives Congress the power to legislate voter qualifications directly, then the 15th, 19th, 24th and 26th Amendments would be wholly unnecessary.

~Max

16

Forgot about Justice Marshall. Seven Justices said the 8th requires proportionality, four of which (White, Stevens, Blackmun, Marshall) would have found for Harmelin on that basis.

~Max

17

Fair enough, but you have 2 votes for no proportionality and 3 more for the proposition that: “the Eighth Amendment does not require strict proportionality between crime and sentence, but rather forbids only extreme sentences that are grossly disproportionate to the crime” (emphasis added). There is a lot of water to carry to say that felon disenfranchisement gets to that level, especially with the current make up of the Court.

Your argument in this context would seem that life without parole for drug possession is not cruel and unusual but disenfranchisement is, when such a “penalty” was common throughout history and expressly allowed.

I’m sure you realize that convictions have so called “non-collateral” or civil consequences. Sex offender registries, for example, are considered non-punitive. The loss of gun rights, even for those convicted prior to the change in law have held not to be ex post facto because they are not considered punitive by controlling BATFE opinion. Civil deportation has not been held to be punitive even if a criminal conviction can trigger it. A person’s driver’s license is held to be a privilege which may be taken after a lack of conviction. Examples abound.

Further, under your proposal a land owner who sold all of his land and lost his right to vote would not be considered a punishment, even if he had the right before.

We could in common English say that all of these things are punishment in common vernacular, but the law only refers to the 8th Amendment as criminal punishment (See the school paddling case; not an 8th amendment violation because school paddling is not criminal punishment). All of these things require due process but are not criminal punishments.

And given the State’s power to heavily regulate the franchise so much so as requiring constitutional amendments to prohibit even disenfranchisements based on race, sex, failure to pay a poll tax, voting at age 18, all required constitutional amendments instead of a federal law. Did nobody think of your argument? That a prohibition of voting based on a failure to pay a poll tax or because of gender was cruel and unusual punishment? The suffragettes had bad legal advice. Shouldn’t they have just argued for this federal law instead of holding themselves to a higher burden?

18

I remember hearing somewhere that a valid reason to amend the Constitution would be “to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and establish them as legal principles to be applied by the courts.”

19

No, because if Congress can give, Congress can take away. Passing amendments takes it away from Congress.

For instance, if there was no 15th Amendment, once the southern states got readmitted to Congress, would Black peoples right to vote have been secure?

20

I’m not smart on Oregon v Mitchell, but just reading this thread I think you’ve got a logical fallacy here.

Oregon said that congress can set the voting age for federal elections, but not state elections. The 26th amendment was then passed to cover state elections. Doesn’t it stand to reason, then, that Oregon would permit congress to allow felons to vote in federal elections, but not state elections? And isn’t that exactly what HR1 proposes to do?