Virginia Governor Bypasses Court Ruling To Help 200,000 Ex-Felons Vote

[JustinL]

135. unfortunately, the Supreme Court has refused to apply this analysis to felon disenfranchisement

In Richardson v Ramirez, 418 U. S. 24 (1974), at a time when conservatives held a 6-3 majority, the Court upheld felon disenfranchisement by a 6-2 vote (two of the liberals dissented, while the third, Douglas, didn't reach the merits).

Justice Rehnquist's majority opinion left undisturbed prior holdings that a restriction on the franchise generally must meet a "compelling state interest." His opinion hinged on his interpretation of the interrelationship between the Equal Protection Clause and section 2 of the 14th Amendment:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

The heart of his opinion, from pp. 54-55:

the exclusion of felons from the vote has an affirmative sanction in § 2 of the Fourteenth Amendment, a sanction which was not present in the case of the other restrictions on the franchise which were invalidated in the cases on which respondents rely. We hold that the understanding of those who adopted the Fourteenth Amendment, as reflected in the express language of § 2 and in the historical and judicial interpretation of the Amendment's applicability to state laws disenfranchising felons, is of controlling significance in distinguishing such laws from those other state limitations on the franchise which have been held invalid under the Equal Protection Clause by this Court. We do not think that the Court's refusal to accept Mr. Justice Harlan's position in his dissents in Reynolds v. Sims, 377 U. S. 533, 377 U. S. 589 (1964), and Carrington v. Rash, 380 U. S. 89, 380 U. S. 97 (1965), that § 2 is the only part of the Amendment dealing with voting rights, dictates an opposite result. We need not go nearly so far as Mr. Justice Harlan would to reach our conclusion, for we may rest on the demonstrably sound proposition that § 1, in dealing with voting rights as it does, could not have been meant to bar outright a form of disenfranchisement which was expressly exempted from the less drastic sanction of reduced representation which § 2 imposed for other forms of disenfranchisement. Nor can we accept respondents' argument that, because § 2 was made part of the Amendment

"'largely through the accident of political exigency, rather than through the relation which it bore to the other sections of the Amendment,'"

we must not look to it for guidance in interpreting § 1. It is as much a part of the Amendment as any of the other sections, and how it became a part of the Amendment is less important than what it says and what it means.

IOW, the general "compelling interest" rule announced in prior rulings did not apply to felon disenfranhcisement. Justice Marshall's dissenting opinion, joined by Justice Brennan, disagreed with this interpretation. From pp. 73-74 (footnotes omitted):

The historical purpose for § 2 itself is, however, relatively clear and, in my view, dispositive of this case. The Republicans who controlled the 39th Congress were concerned that the additional congressional representation of the Southern States which would result from the abolition of slavery might weaken their own political dominance. There were two alternatives available -- either to limit southern representation, which was unacceptable on a long-term basis, or to insure that southern Negroes, sympathetic to the Republican cause, would be enfranchised; but an explicit grant of suffrage to Negroes was thought politically unpalatable at the time. Section 2 of the Fourteenth Amendment was the resultant compromise. It put Southern States to a choice -- enfranchise Negro voters or lose congressional representation.

The political motivation behind § 2 was a limited one. It had little to do with the purposes of the rest of the Fourteenth Amendment. As one noted commentator explained:

"'It became a part of the Fourteenth Amendment largely through the accident of political exigency, rather than through the relation which it bore to the other sections of the Amendment.'"

&quot I)t seems quite impossible to conclude that there was a clear and deliberate understanding in the House that § 2 was the sole source of national authority to protect voting rights, or that it expressly recognized the states' power to deny or abridge the right to vote."

It is clear that § 2 was not intended, and should not be construed, to be a limitation on the other sections of the Fourteenth Amendment. Section 2 provides a special remedy -- reduced representation -- to cure a particular form of electoral abuse -- the disenfranchisement of Negroes. There is no indication that the framers of the provisions intended that special penalty to be the exclusive remedy for all forms of electoral discrimination. This Court has repeatedly rejected that rationale. See Reynolds v. Sims, 377 U. S. 533 (1964); Carrington v. Rash, 380 U. S. 89 (1965).

Rather, a discrimination to which the penalty provision of § 2 is inapplicable must still be judged against the Equal Protection Clause of § 1 to determine whether judicial or congressional remedies should be invoked.

Hopefully, with a new liberal majority on the Court, Richardson v Ramirez will be overruled.