RNLA Meese Award Winner Hans von
Spakovsky argued that there are “sound policy reasons” for felon
disenfranchisement laws in a Federalist Society teleforum debate with Nancy
Abudu, staff counsel with the ACLU’s Voting Rights Project yesterday. Roger Clegg, president of the Center for
Equal Opportunity, moderated the debate.
Von Spakovsky explained the
rationale for felon disenfranchisement laws: “criminals lose right to vote
because of their conscious decision to commit crime.” He added, “States are entitled to ensure that
those who steal or damage property pay their debt to society and show that they
are entitled to have all rights to full citizenship… Individuals have shown
that unwilling to abide by rules should not have ability to change those
rules.”
It was pointed out at the debate
that opponents of felon disenfranchisement laws do not also advocate for the
elimination of other consequences of their conviction. Von Spakovsky said, “It is biased and unfair
to say that we trust someone enough to restore to vote and not to restore them
to full employment, own a gun and serve on a jury.”
Abudu, who supports the repeal of felon
disenfranchisement laws, urged listeners “to open up the ballot box to people
who are locked out because of racism rampant in parts of our society.” However, von Spakovsky retorted that “the
claim that felon disenfranchisement laws are rooted in racism is historically
inaccurate.” He discussed how felon
disenfranchisement laws can be traced back to ancient Greece and Rome. Moreover, twenty-nine states barred felons
from voting at the time of the adoption of the 18th amendment. He noted, “Felon disenfranchisement laws
predate the Jim Crow era.”
Von Spakovsky said “states have the
right to make their own decisions” on felon disenfranchisement. He criticized attempts of Congress to prevent
states from barring felons from voting through legislation like the Democracy
Restoration Act. He identified the grounding
in the Constitution for state felon disenfranchisement laws by noting, “The 14th
amendment provides very specifically that states can abridge the right to vote
for participation in rebellion or other crimes.”
Two laws were pointed out by von
Spakovsky to demonstrate since the Voting Rights Act that Congress has
recognized that states are legitimately disenfranchising felons. The National Voter Registration Act in 1993
provides that U.S. Attorneys must send a
notice of felony conviction to the state election official. The other law is the Help America Vote Act of
2002 that require states to set up statewide computerized voter registration
lists and coordinate that list with state agency records on felonies.
Abudu argued that the plain
language of the Voting Rights Act could be used to challenge felon
disenfranchisement laws. Litigants like
Abudu are trying to change the law at the courts because they can’t convince
state legislatures to repeal their felon disenfranchisement laws. Furthermore, these litigants are using the
Voting Rights Act because it has the potential to give them an easier
case. As Clegg and von Spakovsky pointed
out, discriminatory intent is prohibited under the equal protection clause of
the 14th amendment. The
reason why those challenging felon disenfranchisement lawsuits use the Voting
Rights Act instead of equal protection as the basis for their claims is because
(1) litigants failed to make an equal protection challenge in the 1974 case
Richardson v. Ramirez; and (2) the Voting Rights Act does not require a showing
of discriminatory intent. Abudu admitted
that discriminatory intent is “a legal hurdle that is difficult to satisfy”
because it is an “unrealistic and unfair burden to place on the plaintiff.” Von
Spakovsky rejoined that that the Supreme Court said in the 1985 case Hunter v. Underwood that felons can be
disenfranchised as long as there is not a racially discriminatory intent.
In Massachusetts, voters in 2000
passed a referendum that applied a new felon disenfranchisement law when there previously
was not one in the state. In addition to
Massachusetts There is widespread support for felon disenfranchisement
laws. Only two states do not have such
laws. Von Spakovsky noted that “the
majority of Americans support felon disenfranchisement.”