# 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:** 17
**Page:** 3
### Author:  [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)
#### Post date: [April 14, 2022, 3:14am UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/41 "2022-04-14T03:14:12Z")
> [@Max\_S](#):
>
> Unless enforced, the Constitution isn’t worth the paper its written on. States have a long, long history of blithely passing unconstitutional laws.
Where exactly are the courts during all this?
---
### Author:  [@Max\_S](https://boards.straightdope.com/u/Max_S)
#### Post date: [April 14, 2022, 3:25am UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/42 "2022-04-14T03:25:57Z")
> [@UltraVires](#):
>
> It is not a criminal punishment–as in most cases, it is not tied to a criminal conviction.
We’re only talking about people who lose their right to vote when convicted of a felony. I do not claim that anybody who can’t vote deserves an 8th Amendment proportionality test. I am only talking about cases where people lose their right to vote because they are convicted of a felony.
How do I put this? In 100% of cases where a person loses their right to vote due to a criminal conviction, the person’s disenfranchisement is tied to a criminal conviction.
You bring up minors again but minors are totally irrelevant to what I’m saying. If your client is convicted of felonious mopery, and State law prohibits employers from hiring convicted moperers, wouldn’t you say that is a punishment for the purposes of the 8th Amendment? The State prohibits employers from hiring children, and it’s not a punishment in that case. But that has nothing to do with the question of whether _your client_’s loss of the right to work constituted a punishment.
~Max
---
### Author:  [@Max\_S](https://boards.straightdope.com/u/Max_S)
#### Post date: [April 14, 2022, 3:30am UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/43 "2022-04-14T03:30:34Z")
> [@UltraVires](#):
>
> why didn’t Congress pass this type of law when they had the support and then subsequently pass an Amendment solidifying it?
Uh, that is exactly how it went down in the 1800s. The civil rights law came first, then the Amendment followed because there were serious doubts as to the law’s constitutionality. Then they passed the civil rights law a second time in 1870, after the 14th & 15th Amendments took effect, just to make sure everything was kosher. There’s a reason they were called _radical_ Republicans.
~Max
---
### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [April 14, 2022, 3:34am UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/44 "2022-04-14T03:34:08Z")
> [@Max\_S](#):
>
> If your client is convicted of felonious mopery, and State law prohibits employers from hiring convicted moperers, wouldn’t you say that is a punishment for the purposes of the 8th Amendment?
Generally no. If someone is convicted of a sexual offense and a state says that such a person cannot be a public school teacher, no court in the United States claims that is a “punishment” under the Eighth Amendment. It is a regulation of hiring in public schools.
---
### Author:  [@Max\_S](https://boards.straightdope.com/u/Max_S)
#### Post date: [April 14, 2022, 3:36am UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/45 "2022-04-14T03:36:09Z")
More like no lawyer in the U.S. is going to argue that it is “cruel and unusual” to punish a sex offender by prohibiting them from teaching at public schools, IMHO.
~Max
---
### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [April 14, 2022, 3:43am UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/46 "2022-04-14T03:43:23Z")
I don’t know how else to say it, and I keep repeating myself. It is not a “punishment” at all legally. Sure it might be said that in common vernacular, but it is not legally a punishment to do that. See Smith v. Doe [{{meta.fullTitle}}](https://www.oyez.org/cases/2002/01-729)
> We conclude, as did the District Court and the Court of Appeals, that the intent of the Alaska Legislature was to create a civil, nonpunitive regime.
> We have upheld against _ex post facto_ challenges laws imposing regulatory burdens on individuals convicted of crimes without any corresponding risk assessment. See _De Veau,_ 363 U. S., at 160; _Hawker,_ 170 U. S., at 197. As stated in _Hawker:_ "Doubtless, one who has violated the criminal law may thereafter reform and become in fact possessed of a good moral character. But the legislature has power in cases of this kind to make a rule of universal application … " _Ibid._ The State’s determination to legislate with respect to convicted sex offenders as a class, rather than require individual determination of their dangerousness, does not make the statute a punishment under the _Ex Post Facto_ Clause.
---
### Author:  [@Max\_S](https://boards.straightdope.com/u/Max_S)
#### Post date: [April 14, 2022, 3:43am UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/47 "2022-04-14T03:43:29Z")
> [@UltraVires](#):
>
> 1983 is a 14th Amendment enactment which does not involve voting rights
Are we talking about the same section §1983? Mine reads, “the deprivation of **any** rights, privileges, or immunities secured by the Constitution”. The 15th Amendment secures the right to vote regardless of race or color, so §1983 seems appropriate.
In fact §1983 was passed in 1871, after the 15th Amendment was passed, and clearly with the 15th Amendment rights (that is, the Civil Rights Act of 1866/1870 - which the 14th and 15th Amendments were supposed to constitutionalize) in mind.
~Max
---
### Author:  [@Max\_S](https://boards.straightdope.com/u/Max_S)
#### Post date: [April 14, 2022, 3:48am UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/48 "2022-04-14T03:48:18Z")
The social stigma of being on a sex offender registry is materially different than the State directly _prohibiting_ you from voting.
~Max
---
### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [April 14, 2022, 3:52am UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/49 "2022-04-14T03:52:29Z")
> **[Monroe v. Pape, 365 U.S. 167 (1961)](https://supreme.justia.com/cases/federal/us/365/167/)**
>
> Monroe v. Pape: A party does not need to seek a state remedy before seeking a federal remedy under 42 U.S.C. 1983, since these remedies are supplemental.
> This case presents important questions concerning the construction of R.S. § 1979, 42 U.S.C. § 1983
> Section 1979 came onto the books as § 1 of the Ku Klux Act of April 20, 1871. 17 Stat. 13. It was one of the means whereby Congress exercised the power vested in it by § 5 of the Fourteenth Amendment to enforce the provisions of that Amendment.
---
### Author:  [@Max\_S](https://boards.straightdope.com/u/Max_S)
#### Post date: [April 14, 2022, 3:56am UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/50 "2022-04-14T03:56:18Z")
I agree with what you quoted but I’m not sure why you quoted it. They needed the 14th Amendment in that case because the 4th Amendment on its own does not apply to the States.
If we’re talking about a State denying people the right to vote due to race or skin color, that right is protected by the 15th Amendment without any form of incorporation.
~Max
---
### Author:  [@Falchion](https://boards.straightdope.com/u/Falchion)
#### Post date: [April 14, 2022, 12:40pm UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/51 "2022-04-14T12:40:37Z")
> [@Max\_S](#):
>
> As to raising a defense in State court, the State can simply assert immunity
Again, I don’t think that’s quite right. A state may be immune from suit by a private party in state court. (And the fact that Congress does not have the power to abrogate that tells us little about the scope of that immunity). But that has nothing to do with raising a federal defense to a state law, which you can absolutely do.
---
### Author:  [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)
#### Post date: [April 14, 2022, 1:09pm UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/52 "2022-04-14T13:09:39Z")
> [@Max\_S](#):
>
> As to raising a defense in State court, the State can simply assert immunity.
The states cannot assert immunity from the US Constitution, including amendments such as the 15th amendment. That is contrary to the Supremacy clause: state courts are bound to enforce the federal constitution.
> **[Supremacy Clause | Supreme Court interpretations](https://en.wikipedia.org/wiki/Supremacy_Clause#Supreme_Court_interpretations)**
>
> In Marbury v. Madison, 5 U.S. 137 (1803), the Supreme Court held that Congress cannot pass laws that are contrary to the Constitution, and it is the role of the Judicial system to interpret what the Constitution permits. Citing the Supremacy Clause, the Court found Section 13 of the Judiciary Act of 1789 to be unconstitutional to the extent it purported to enlarge the original jurisdiction of the Supreme Court beyond that permitted by the Constitution.
> In Martin v. Hunter's Lessee, 14 U.S. 304 (...
_Maine v Young_ was a question whether the federal government could create civil liability for private actions against a state. That’s different from a state saying it isn’t bound by the federal constitution.
---
### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [April 15, 2022, 1:07am UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/53 "2022-04-15T01:07:29Z")
> [@Falchion](#):
>
> But that has nothing to do with raising a federal defense to a state law, which you can absolutely do.
Right. Through the Ex Parte Young doctrine. The only way around that (and it is a teetering doctrine) is what TX did with SB8. But for what is being said in this thread, if a state tried to stop blacks from voting, all it would take would be for a black person to attempt to register, be denied, and then sue the local registrar in federal court.
---
### Author:  [@Max\_S](https://boards.straightdope.com/u/Max_S)
#### Post date: [April 18, 2022, 7:01pm UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/54 "2022-04-18T19:01:31Z")
> [@Falchion](#):
>
> A state may be immune from suit by a private party in state court. (And the fact that Congress does not have the power to abrogate that tells us little about the scope of that immunity). But that has nothing to do with raising a federal defense to a state law, which you can absolutely do.
How would a private party go about raising a federal defense to a state law, _in State court_, when the state grants itself immunity from suits by its own citizens in its own courts?
An hostile state could declare ex-felons (or Blacks, if we’re continuing that tangent) second-class citizens and remove their procedural rights to access the courts at all. Of course this is a violation of the 14th Amendment’s equal protection clause, and in the case of Blacks, also the due process clause. But I think the state courts asked to strike down laws affecting their own jurisdiction would have their hands tied by separation of powers doctrine. The basic premise of sovereign immunity is that you cannot challenge the one who guarantees your rights without their consent. Unlike the federal Supreme Court in _Marbury v. Madison_, there isn’t necessarily a constitutional provision setting out a State court’s jurisdiction. And _Ex Parte Young_ cannot be used to issue injunctions against the state judiciary, should they dismiss your case for lack of a cause of action. The afflicted individual would have to look to the federal government to intervene on their behalf, and guarantee their federal rights.
Didn’t this actually happen in the mid-to-late nineteenth century? Right after the civil war there were black codes which criminalized mopery so as to exploit the 13th Amendment’s involuntary servitude loophole and force Blacks into debt peonage. It was the _federal_ civil rights act of 1866 (now 42 U.S.C. § 198 **1** ) which first gave Blacks access to the courts. When the 14th Amendment was passed (to constitutionalize the civil rights act) Florida’s elite realized there were more registered Black voters than whites. That is precisely why Florida banned felons from voting in the first place.
~Max
---
### Author:  [@Max\_S](https://boards.straightdope.com/u/Max_S)
#### Post date: [April 18, 2022, 7:54pm UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/55 "2022-04-18T19:54:55Z")
> [@Northern\_Piper](#):
>
> The states cannot assert immunity from the US Constitution, including amendments such as the 15th amendment. That is contrary to the Supremacy clause: state courts are bound to enforce the federal constitution.
The Supremacy Clause binds state judges to federal law, it does not bind them to enforce it. In _Maine **v. Alden** _, employees alleged that their employer, a subdivision of the state, violated overtime provisions of the FLSA. They sued in federal court but had their case dismissed due to sovereign immunity. Then they sued in state court and again had their case dismissed due to sovereign immunity. In the end they _didn’t_ get their day in court, despite the judges at every level being bound by the federal law. Presumably the employees were never paid for overtime, and presumably no state policies were changed at the time, despite being guaranteed overtime pay by federal law.
The _Alden_ case shows that a state’s sovereign immunity _effectively renders a federal law (overtime provisions of the FLSA) **unenforceable** as applied to the state of Maine, except by the grace of the United States should it deem to enforce its own law_, as it did in _United States v. Darby Lumber Co._, 312 U.S. 100 (1941). In that case the United States itself deigned to sue a company accused of violating the FLSA, and the Supreme Court found for the United States.
The 15th Amendment is unlike the Article I Commerce clause in that it explicitly grants Congress enforcement powers. But if we were to assume for the sake of argument that Congress had not exercised this power, I fail to see any hurdle to the State simply claiming sovereign immunity whenever one of its own citizens attempts to bring action in its own courts.
~Max
---
### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [April 19, 2022, 1:00am UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/56 "2022-04-19T01:00:15Z")
> [@Max\_S](#):
>
> except by the grace of the United States should it deem to enforce its own law
There you go. That doesn’t seem like an insurmountable hurdle, and it protects a state from being sued by any person with a grudge, reasonable or otherwise. A good balance in our federal system.
---
### Author:  [@Max\_S](https://boards.straightdope.com/u/Max_S)
#### Post date: [April 19, 2022, 4:53pm UTC](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738/57 "2022-04-19T16:53:46Z")
I may have failed to mention this. Section 1404 of the For the People Act gives individuals a private right of action against the State, in addition to the Attorney General. Insofar as some in this thread (@Kent_Clark) have defended section 1403’s constitutionality under Article I (which I still disagree with), that does not cover 1404(b).
> (a) Attorney general. The Attorney General may, in a civil action, obtain such declaratory or injunctive relief as is necessary to remedy a violation of this subtitle.
>
> (b) Private right of action.
>
> > (1) IN GENERAL. A person who is aggrieved by a violation of this subtitle may provide written notice of the violation to the chief election official of the State involved.
> >
> > (2) RELIEF. Except as provided in paragraph (3), if the violation is not corrected within 90 days after receipt of a notice under paragraph (1), or within 20 days after receipt of the notice if the violation occurred within 120 days before the date of an election for Federal office, the aggrieved person may, in a civil action, obtain declaratory or injunctive relief with respect to the violation.
> >
> > (3) EXCEPTION. If the violation occurred within 30 days before the date of an election for Federal office, the aggrieved person need not provide notice to the chief election official of the State under paragraph (1) before bringing a civil action to obtain declaratory or injunctive relief with respect to the violation.
~Max
[Previous page](https://boards.straightdope.com/t/can-congress-force-states-to-let-ex-felons-vote/962738.md?page=2)