# Can Congress force States to let ex-felons vote?
**URL:** https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738
**Category:** Great Debates
**Created:** [April 12, 2022, 11:12pm UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738 "2022-04-12T23:12:37Z")
**Posts on this page:** 20
**Page:** 2
### Author:  [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)
#### Post date: [April 13, 2022, 2:32pm UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/21 "2022-04-13T14:32:18Z")
I believe the argument is that a 5-4 precedent is weak. And it’s particularly weak given the current political climate and makeup of the Supreme Court. Presumably lower courts will defer to the precedent in _Oregon_, which is a real thing, and then it will be appealed up to the Supreme Court which will do… whatever it feels like. I don’t have a ton of confidence they will uphold, particularly given the potential impact of such a law.
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### Author:  [@steronz](https://boards.straightdope.com/u/steronz)
#### Post date: [April 13, 2022, 2:34pm UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/22 "2022-04-13T14:34:00Z")
I don’t believe that’s the argument that Max was making.
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### Author:  [@Max\_S](https://boards.straightdope.com/u/Max_S)
#### Post date: [April 13, 2022, 3:45pm UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/23 "2022-04-13T15:45:26Z")
> [@UltraVires](#):
>
> Your argument in this context would seem that life without parole for drug possession is not cruel and unusual but disenfranchisement is
There are maybe 290 million adults in this country. Something we know today that may not have been known in 1991 is that 39 million of them, over 1 in 10 adults, have used cocaine in their lifetime. The majority of adults - some 128 million people - have smoked weed. It is estimated that 10 million people abused opioids, which is a felony, in 2019 alone.
My argument isn’t about drug possession or any specific felony. It’s about all felonies. If there is one single felony in the entire corpus of state and federal law for which disenfranchisement is grossly disproportionate to the crime, my argument is vindicated. On the other hand, if there is a single felony on the books anywhere for which a mandatory life imprisonment without parole is grossly disproportionate to the crime, your argument fails.
And my friend, calling in sick for work when you aren’t really sick, and collecting sick pay, is wire fraud, a federal felony.
~Max
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### Author:  [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)
#### Post date: [April 13, 2022, 4:00pm UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/24 "2022-04-13T16:00:10Z")
You’re correct; it was (I believe) the argument @UltraVires was making and I didn’t follow the specific discussion thread back.
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### Author:  [@Max\_S](https://boards.straightdope.com/u/Max_S)
#### Post date: [April 13, 2022, 4:07pm UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/25 "2022-04-13T16:07:26Z")
> [@UltraVires](#):
>
> I’m sure you realize that convictions have so called “non-collateral” or civil consequences.
I was aware of civil deportation, which I don’t personally consider civil in nature (but recognize the courts see it differently). Otherwise no, the rest is news to me. If the consequence follows automatically from a conviction, and is given effect by the state (rather than some private contract), it seems to me that consequence is a “criminal” punishment and subject to the 8th amendment.
ETA: (A state couldn’t get away with requiring all citizens to report to a state facility to be hoisted upon racks and gibbets, then issue licenses of exemption for everybody, and automatically revoke said licenses upon conviction for a felony. The 8th is useless if it does not prevent such a scheme.)
School paddling doesn’t follow conviction, nor does a land owner who sells his land, nor a person who fails to pay a poll tax, nor a woman who approached the polling station but is turned away. So I don’t see those as relevant.
~Max
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### Author:  [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)
#### Post date: [April 13, 2022, 4:16pm UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/26 "2022-04-13T16:16:45Z")
He was found to have committed criminal fraud, causing over $100,000 in damages to his employers. Not exactly the same thing. And he was found to have a pattern of similar crimes.
Call in sick tomorrow when you need a mental health day. I assure you that no wire fraud will be committed.
The [Brennan Center for Justice](https://www.brennancenter.org/our-work/policy-solutions/annotated-guide-people-act-2021#t1-se) has this to say about the provision in the OP:
> ### [Subtitle E — Democracy Restoration](https://www.congress.gov/117/bills/hr1/BILLS-117hr1eh.pdf#page=150)
>
> #### Background:
>
> This subtitle would restore federal voting rights to Americans who are disenfranchised due to a previous criminal conviction. Felony disenfranchisement laws, most of which date back to the Jim Crow era, disproportionately affect African Americans; as of 2016, they were [disenfranchised at a rate four times that of all other Americans](https://www.sentencingproject.org/wp-content/uploads/2016/10/6-Million-Lost-Voters.pdf). Federal action would build off recent progress in the states, including Florida’s [historic vote](https://www.nytimes.com/2018/11/07/us/florida-felon-voting-rights.html) in 2018 to end permanent disenfranchisement for all persons with criminal convictions. This section includes findings concerning Congress’s Article I power to set the rules for federal elections, as well as its authority under the Fourteenth and Fifteenth Amendments to stop discriminatory denials of the right to vote. It also notes how the lack of a uniform national standard for voting creates unfair disparities on who can participate in federal elections, and how current felony disenfranchisement laws disproportionately affect Black and Latino communities.
>
> #### Summary of Key Changes:
>
> This subtitle would:
>
> - guarantee federal voting rights for citizens with past felony convictions who have completed any term of incarceration; and
> - require states to inform citizens of their restored voting rights in writing.
The text of the bill explains that states apply disenfranchisement in a deliberately discriminatory manner against otherwise protected groups. Remedying that clearly falls within Congress’s ability to redress. It has done so in the past with such bills as the Voting Rights Act of 1965.
Whether the current Supreme Court will uphold this is an utterly different question. Whether it will pass the Senate in the first place is doubtful. It’s sat there for a year and Joe Manchin said he was against it. In the abstract, though, I see no valid constitutional objections being brought up in this thread.
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### Author:  [@Max\_S](https://boards.straightdope.com/u/Max_S)
#### Post date: [April 13, 2022, 4:34pm UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/27 "2022-04-13T16:34:33Z")
> [@The\_Other\_Waldo\_Pepper](#):
>
> I remember hearing [somewhere](https://en.m.wikipedia.org/wiki/West_Virginia_State_Board_of_Education_v._Barnette) 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.”_
> [@Northern\_Piper](#):
>
> No, because if Congress can give, Congress can take away. Passing amendments takes it away from Congress.
All of the aforementioned amendments rely on Congress for enforcement. If Congress repealed the relevant laws (i.e. 42 U.S.C. § 1983), and your state government decided to pass a law saying Black people no longer have the right to vote, guess what? The Black citizen wouldn’t have standing to sue.
If you think that’s unjust, see this old thread,
> [@Amendment to provide federal jurisdiction when a state violates your federal rights](https://boards.straightdope.com/t/amendment-to-provide-federal-jurisdiction-when-a-state-violates-your-federal-rights/837522):
>
> Amendment to provide federal jurisdiction when a state violates your federal rights I submit for the consideration of this board the following amendment to the United States Constitution: SECTION 1. The eleventh article of amendment to the Constitution of the United States is hereby repealed. SECTION 2. The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, un…
~Max
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### Author:  [@Max\_S](https://boards.straightdope.com/u/Max_S)
#### Post date: [April 13, 2022, 4:42pm UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/28 "2022-04-13T16:42:04Z")
> [@steronz](#):
>
> _Oregon_ said that congress can set the voting age for _federal_ elections, but not state elections.
The Constitution says, Art. I, sec. 2, cl. 1, the qualifications for voters electing a U.S. Rep shall be the same as for the state legislature. You can’t decouple qualifications for voters in federal and state elections.
~Max
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### Author:  [@Max\_S](https://boards.straightdope.com/u/Max_S)
#### Post date: [April 13, 2022, 4:58pm UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/29 "2022-04-13T16:58:18Z")
> [@steronz](#):
>
> Doesn’t it stand to reason, then, that _Oregon_ would permit congress to allow felons to vote in _federal_ elections, but not state elections?
No. The _Oregon_ Court could not get a majority agree to anything except the judgement which is specific to age qualifications of that particular law. They could not get a majority to stand behind any specific rationale which would be more general. So in the context of felons it has no precedential value.
~Max
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### Author:  [@Falchion](https://boards.straightdope.com/u/Falchion)
#### Post date: [April 13, 2022, 8:59pm UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/30 "2022-04-13T20:59:45Z")
> [@iamthewalrus\_3](#):
>
> I believe the argument is that a 5-4 precedent is weak.
The argument is that a 4-1-4 precedent is weak. And that’s basically true. In theory, ““when a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” _Marks v. United States_ But the application of the _Marks_ rule is a mess.
> [@Max\_S](#):
>
> If Congress repealed the relevant laws (i.e. 42 U.S.C. § 1983), and your state government decided to pass a law saying Black people no longer have the right to vote, guess what? The Black citizen wouldn’t have standing to sue.
That doesn’t seem quite accurate. 1983 is a cause of action for damages. But you can bring an _Ex Parte Young_ injunctive relief action (which I don’t think required any specific cause of action) but you can also raise a federal constitutional defense to a state law in state court. There would be a number of ways to raise that challenge without 1983.
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### Author:  [@Kent\_Clark](https://boards.straightdope.com/u/Kent_Clark)
#### Post date: [April 13, 2022, 10:17pm UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/31 "2022-04-13T22:17:21Z")
> [@Max\_S](#):
>
> The Constitution says, Art. I, sec. 2, cl. 1, the qualifications for voters electing a U.S. Rep shall be the same as for the state legislature. You can’t decouple qualifications for voters in federal and state elections.
But qualifications were decoupled long before Oregon. [Part IV Sec 131 of the 1957 Civil Rights Act.](https://www.govinfo.gov/content/pkg/STATUTE-71/pdf/STATUTE-71-Pg634.pdf#page=1)
> No person, whether acting under color of law or otherwise,
> shall intimidate, threaten, coerce, or attempt to intimidate, threaten,
> or coerce any other person for the purpose of interfering with the
> right of such other person to vote or to vote as he may choose, or of
> causing such other person to vote for, or not to vote for, any candidate
> for the office of President, Vice President, presidential elector. Member
> of the Senate, or Member of the House or Representatives, Delegates
> or Commissioners from the Territories or possessions, at any general,
> special, or primary election held solely or in part for the purpose of
> selecting or electing any such candidate.
I can’t even find anything that indicates a constitutional challenge to this law ever even made it to the Supreme Court.
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### Author:  [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)
#### Post date: [April 13, 2022, 10:26pm UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/32 "2022-04-13T22:26:39Z")
> [@Max\_S](#):
>
> All of the aforementioned amendments rely on Congress for enforcement. If Congress repealed the relevant laws (i.e. 42 U.S.C. § 1983), and your state government decided to pass a law saying Black people no longer have the right to vote, guess what? The Black citizen wouldn’t have standing to sue.
I don’t understand this argument. Of course Congress is the body to frame laws implementing the Constitution. Therefore, you seem to be saying here that Congress has control over state voting laws. But your thread appears to be insisting that Congress doesn’t have control over state voting laws. Which side are you arguing?
I’m also confused why you think a state can blithely pass unconstitutional bills with or without a statutory act of Congress.
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### Author:  [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)
#### Post date: [April 14, 2022, 12:52am UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/33 "2022-04-14T00:52:16Z")
> [@Kent\_Clark](#):
>
> But qualifications were decoupled long before Oregon. [Part IV Sec 131 of the 1957 Civil Rights Act.](https://www.govinfo.gov/content/pkg/STATUTE-71/pdf/STATUTE-71-Pg634.pdf#page=1)
>
> > No person, whether acting under color of law or otherwise,
> > shall intimidate, threaten, coerce, or attempt to intimidate, threaten,
> > or coerce any other person for the purpose of interfering with the
> > right of such other person to vote or to vote as he may choose, or of
> > causing such other person to vote for, or not to vote for, any candidate
> > for the office of President, Vice President, presidential elector. Member
> > of the Senate, or Member of the House or Representatives, Delegates
> > or Commissioners from the Territories or possessions, at any general,
> > special, or primary election held solely or in part for the purpose of
> > selecting or electing any such candidate.
>
> I can’t even find anything that indicates a constitutional challenge to this law ever even made it to the Supreme Court.
That doesn’t say anything about qualifications. It prevents someone from intimidating etc., a voter from voting as they may please. That voter’s right to vote is not altered by this provision, but protected. Still would depend on state law to determine if that person is qualified to vote.
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### Author:  [@Kent\_Clark](https://boards.straightdope.com/u/Kent_Clark)
#### Post date: [April 14, 2022, 1:10am UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/34 "2022-04-14T01:10:25Z")
I am not a jurist, but to me the language clearly draws a line between voting for federal offices from voting for state/local offices. which to me is the basis for _Oregon_, and part of the OP’s position.
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### Author:  [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)
#### Post date: [April 14, 2022, 1:27am UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/35 "2022-04-14T01:27:46Z")
Right, it’s not creating an offence of intimidating voters for state elections. It only creates that offence for federal elections. But, it doesn’t say who is entitled to vote in the federal elections.
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### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [April 14, 2022, 1:52am UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/36 "2022-04-14T01:52:43Z")
> [@Max\_S](#):
>
> My argument isn’t about drug possession or any specific felony. It’s about all felonies. If there is one single felony in the entire corpus of state and federal law for which disenfranchisement is grossly disproportionate to the crime, my argument is vindicated. On the other hand, if there is a single felony on the books anywhere for which a mandatory life imprisonment without parole is grossly disproportionate to the crime, your argument fails.
But again, regulating the polity is not a “punishment” for those not selected such that the Eighth Amendment is implicated. It is not a criminal punishment–as in most cases, it is not tied to a criminal conviction. It can be a collateral consequence of a conviction for a crime. Can 16 year olds claim that they are being punished for not being able to vote despite committing no crime? I don’t think you get a single vote for the idea that disenfranchisement is a criminal punishment.
And even if it were a punishment, such strong language by Harmelin suggests that it is not an “extreme sentence which is grossly disproportionate to the crime.” That is strong medicine especially given that felon disenfranchisement laws have such long pedigrees even after the Eighth Amendment was enacted. It is not a “sentence” at all
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### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [April 14, 2022, 2:07am UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/37 "2022-04-14T02:07:13Z")
> [@Northern\_Piper](#):
>
> 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?
I agree with this, however if this was believed to be a proper exercise under Art. I, sec 4, cl.1 then why didn’t Congress pass this type of law when they had the support and then subsequently pass an Amendment solidifying it? Could it be because nobody believed that this was a power of Congress without such Amendments?
For example, why didn’t women ask that Congress pass this type of law granting women’s suffrage, and then keep pressing for the 19th Amendment?
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### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [April 14, 2022, 2:14am UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/38 "2022-04-14T02:14:42Z")
> [@Max\_S](#):
>
> All of the aforementioned amendments rely on Congress for enforcement. If Congress repealed the relevant laws (i.e. 42 U.S.C. § 1983)
Nitpick. 1983 is a 14th Amendment enactment which does not involve voting rights (or else the 15th, 19th et seq) would not have been necessary. The 15th Amendment enforcement powers come under the VRA which the Supreme Court has recently held that it doesn’t apply to some of the more fanciful arguments put forth (e.g. felons are disproportionately minorities therefore implicate the 15th Amendment).
ALL laws fall harder on the poor which are disproportionately minorities and therefore all laws are unconstitutional.
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### Author:  [@Max\_S](https://boards.straightdope.com/u/Max_S)
#### Post date: [April 14, 2022, 2:59am UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/39 "2022-04-14T02:59:32Z")
> [@Falchion](#):
>
> That doesn’t seem quite accurate. 1983 is a cause of action for damages. But you can bring an _Ex Parte Young_ injunctive relief action (which I don’t think required any specific cause of action) but you can also raise a federal constitutional defense to a state law in state court. There would be a number of ways to raise that challenge without 1983.
Well, I think recent events in Texas have shown that _Ex Parte Young_ has a huge loophole. As to raising a defense in State court, the State can simply assert immunity. “The States’ immunity from private suit in their own courts is beyond congressional power to abrogate by Article I legislation.” _Alden v. Maine_, 527 U.S. 706 (1999).
~Max
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### Author:  [@Max\_S](https://boards.straightdope.com/u/Max_S)
#### Post date: [April 14, 2022, 3:08am UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/40 "2022-04-14T03:08:38Z")
> [@Exapno\_Mapcase](#):
>
> you seem to be saying here that Congress has control over state voting laws. But your thread appears to be insisting that Congress doesn’t have control over state voting laws.
In my opinion Congress can only prescribe federal voter qualifications _indirectly_, through its powers to enforce the 14th, 15th, 19th, 24th, and 26th Amendments. Because the right of an ex-felon to vote is not encompassed by any of these Amendments, I don’t think Congress can force the States to let ex-felons vote in federal elections.
> [@Exapno\_Mapcase](#):
>
> I’m also confused why you think a state can blithely pass unconstitutional bills with or without a statutory act of Congress.
Unless enforced, the Constitution isn’t worth the paper its written on. States have a long, long history of blithely passing unconstitutional laws.
~Max
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