Blind v. color blind: the injustice of State felon disenfranchisement schemes

State policies which disenfranchise ex-felons, those who have served their complete sentences, have a long history. While "civil death" was a common punishment for convicts in Europe prior to the colonization of North America, ex-felon disenfranchisement statutes were adopted by several states, primarily in the South after the Civil War. There is substantial evidence that these statutes were created to exclude racial minorities. These discriminatory effects can still be seen today. Racial minorities in the United States, primarily African Americans, are incarcerated at a much higher rate than their white peers. Once convicted, these persons are often subject to disenfranchisement. Because of the racial disparities in conviction and incarceration, minority communities are often left with a diminished voice in the electoral process. Under the Voting Rights Act, as amended in 1982, any voting qualifications established by a state that result in disproportionate disadvantages for minorities are illegal. As a result, African American voters, who consistently vote for Democratic candidates 90% of the time, suffer from vote dilution due to felon disenfranchisement. Precedent suggests that courts analyzing such state statutes should consider a totality of circumstances, including the historical reasons for enactment and other harms suffered by the community. Ex-felon disenfranchisement schemes are not only a bad policy, but also are incompatible with equal voting rights as embodied the 15th Amendment, and therefore invalid under law.

BLIND V. COLOR BLIND: THE INJUSTICE OF STATE FElON DISENFRACNHISEMENT SCHEMES By lauren Nicole Carpenter A Senior Honors Thesis Submitted to the Faculty of The University of Utah In Partial Fulfillment of the Requirements for the Honors Degree of Bachelor of Science In Political Science Approved: �� /11..4...1." ., ,3...,j,..£ Daniel levin Matthew Bur ank Advisor Chair, Political Science 1f5/k Mark Button Departmental Honors Advisor Dean, Honors College May 2009 ABSTRACT ABSTRACT State policies policies which whkh disenfranchise disenfranchise ex-felons, ex-felons, those those who have served served their State who have their complete sentences, have have aa long long history. history. While While "civil death" death" was was aa common common punishment complete punishment for convkts prior to the colonization of North North America, ex-felon convicts in Europe prior disenfranchisement statutes statutes were adopted by by several several states, states, primarily disenfranchisement were adopted primarily in in the the South South after after the Civil War. There There is is substantial that these these statutes were created created to to exclude the Civil War. substantial evidence evidence that statutes were exclude racial These discriminatory discriminatory effects effects can can still be seen seen today. today. Racial Racial minorities racial minorities. minorities. These still be minorities in the United United States, primarily African African Americans, Americans, are incarcerated at much higher higher rate in the States, primarily are incarcerated at aa much rate than their their white white peers. peers. Once convicted, these these persons persons are are often often subject than Once convicted, subject to to disenfranchisement. Because of of the the racial racial disparities in conviction and incarceration, disenfranchisement. Because disparities in conviction and incarceration, minority communities communities are are often with aa diminished diminished voice voice in in the the electoral electoral process. minority often left left with process. Under the the Voting Voting Rights Rights Act, Act, as as amended amended in in 1982, any voting voting qualifications Under 1982, any qualifications established established by aa state that result result in in disproportionate disproportionate disadvantages disadvantages for for minorities minorities are are illegal. illegal. As As aa by state that result, African African American American voters, voters, who who consistently consistently vote vote for for Democratic candidates 90% of result, Democratic candidates 90% of the time, time, suffer from vote vote dilution to felon disenfranchisement. disenfranchisement. Precedent Precedent suggests the suffer from dilution due due to suggests analyzing such state statutes statutes should should consider a totality of circumstances, that courts analyzing ii including histo rical reasons for enactment harms suffered suffered by the including the historical enactment and other other harms but also are community. Ex-felon disenfranchisement disenfranchisement schemes are not only a bad policy, but embodied in the 15 Amendment, and incompatible with equa equall voting rights as embodied 1 5th Amendment, th therefore invalid under law. iii TABLE OF CONTENTS TABLE Page Abstract Abstract ii Introduction 1 History History 8 Cases 12 12 Populations Populations 25 2S The Future of FO licies FD Po Policies 331 1 No rmative App lications Normative Applications 35 3S Conclusion Conclusion 441 1 References 46 46 ;v iv To Russell, for never being an an unwelcome distraction. v 1 I. Introduction tht h Since ratification ratification of the 15 15 Amendment, legislators legislators have have worked to systematically keep keep African African Americans disenfranchised through a series of laws intentioned, and clearly intentioned, pertaining to voter registration qualifications. Some were bold and such as as literacy literacy tests tests and andthe the grandfather grandfather clause, clause, which which prevented prevented those those without without votervotereligible ancestors from casting see casting a ballot. Others were more subtle, subtle, not unlike we see today, disenfranchising felons and ex-felons alike, creating a disproportionately disproportionately and ex-felons disadvantaged minority. Congress modified the original Voting Rights Act in 1982 to prohibit any voting qualifications which result in diminished electoral participation. I argue that felon disenfranchisement provisions violate the Voting Rights Act and and are therefore not permissible therefore permissible by law. pinnacle of political activity. Social Contract For many Americans, voting is the pinnacle as by John Locke, remains remains the core of American political theory, particularly formulated as tradition, tradition, including the right to elect officials believed to represent the voters' interests. However, throughout throughout American American history, many groups, including blacks, Native women, have themselves excluded Americans, poor uneducated whites, and and women, have found themselves excluded from from act. Some of the methods used to disenfranchise these this traditional political act. and the law books demographics were blatant - written into the Constitution and books of every state. Over time, as the responsibility began to move toward enfranchising enfranchising all people in became more subtle. subtle. Poll American society, society, the methods became Poll taxes taxes kept those of the lowest economic status from voting, grandfather clauses ensured ensured that whites could continue to and the threat of violence prevented many. vote while barring blacks, and 2 The focus focus of this thesis is is on the continued disenfranchisement of African Americans. laws are an Ame ri cans. This thesis thesis seeks to show how modern felon disenfranchisement laws used to prevent African Americans Americans from voti voting. extension of previous methods used ng. I will disenfranchisement practices have have aa racially disproport disproportionate effect, argue that felon disen franchisement practices ionate effect, thus violatin violatingg the Voting Rights Act as as amended in 1982. 1982. Specifically this paper addresses h e continuing disenfranch disenfranchisement add resses ex-felon disenfranchisement - t the iseme nt of those theirr se sentences. brevity'ss sake, I wi will use the term felon felon ntences. For brevity' ll use having completed thei disenfranchisement, or FD. I do not, however, intend to tackle the issue of voting rights for cur currently incarcerated The issues of apportionment, apportionment, res residential status, and and id ential status, rently incarce rat ed convicts. The what constitutes other things, things, are too complex nstitut es a domicile, among other too comp lex ttoo be dealt with here, here, what co warrant their and warrant thei r own thorough investigation independent of ex-felon disenfranchisement. d isenfra nch isement. years evidence of equality of The early yea rs in the United States saw little evidence opportunity. Though the U.S. Constitution allowed the st states devise their their own voting voting opportu nity. Though ates to devise qualifications, mo most Americans, and black way. Women, Native Ame ricans, slaves and st saw it the same way. free persons ry limi ted politica t s, even persons had ve very limited politicall righ rights, even non-property non-property holding free white white men restrictions white wealthy ctions on whi t e men who were not wealthy could not cast a ballot. Over time, the restri enough property diminished. By By around 1860 nearly all white white men were rty diminished. eno ugh to own prope enfranchised,, regard regardless of their their financial financial portfolio portfolio enfranchised less of (http://memory.loc.gov/learn/features/election/voters.html). (http://memory.loc.gov/learn/features/election/vote rs. html). The first 80 yea years American history were less kind to blacks. Wh Whether rs of American ether slaves not, non-whites were largely exclu excluded from participation in the electo electoral or not, ded fro m participation ral process. 3 Even after after the (ivil Civil War and the Emancipation Proclamation, the battle continued continued over th th the issue of Negro suffrage. Though the 15 1 5 Amendment, Amendment, ratified in 1870, guaranteed the right to vote regardless regardless of co color lor or previous condition condition of of servitude, se rvitude, the the creative ingenuity of racist politi political leaders, especia especially ca l leaders, lly those in the the Southern states, ensured that ingenuity the polls African Americans would be kept from the po lls for for what what is now now almost another another 140 years. In respo nse to to these racially exclusionary policies, pol icies, Congress passed the Vo ting response Voting ive legi sla tion aimed at political political practices and Right Rightss Act of 1965. 1965. This comprehens comprehensive legislation This initial passage of of the institutions that prevented black Americans from voting. This RA ) was intended Vot ing Rights Voting Rights Act (V (VRA) intended to prevent prevent racially biased gerrymandering gerrymandering pract ices and vo ter qualification intiffs cou ld prove that a voter voter qualification practices voter qualification laws. laws. If pla plaintiffs could qualification d motivation, t he statute statute would would be invalid. was fashioned with a biase biased motivation, the ted intent is a difficult and tenuous tenuou s task. Recognizing this, Proving racia lly motiva racially motivated Co ngress revised the VRA Under this provision in Congress VRA in 1982 to include a results results test. Under Section 2 of qualificat ion results res ults in aa of the Act, plaintiffs need only prove that a voter voter qualification sp roportionate im pa ct. Since that time, t ime, only of cases have made racia lly di racially disproportionate impact. only a handful handful of urt system disenfranchisement statutes statutes under the ir way tthrough hrough the co their court system contesting contesting felon disenfranchisement nsen sus on Section 2's resul ts test. There is results is no co consensus on the the VRA's VRA's application application to to felon felon disenfranchisement, whether these statute statutess are perm permissible underr federal law. dise nfranchi seme nt , nor whether issib le unde Wesley v. v. Collins Collins was the first majo majorr case to under the results test Wesley to be considered co nsi dered under 111 legislation. Circuit of Appeals si sided rcuit Court of ded with the state of of Tennessee, legislatio n. In 1986, the 6 Ci th disproportionate number of of blacks were disenfranchised under tthe writing that, while a disproport ionate number he 44 felon/ex·felon statute, the disenfranchisement was not due to the State's n. felon/ex-felon State's provisio provision. Tennessee,, the Court argued argued that so some more Concurring with Tennessee me ethnicities are simply more likely commit crim crimes like ly to commit es than others. The second ing ton, was was decided in favor of the ex-felons second case, Farrakhan Farrakhon v. Wash Washington, and stated that an an analysis analysis of the totality of the the by the Ninth Circuit Court, and encompassing any biases biases in the crimi criminal justice system mu must circumstances encompassing na l justic e system st be accounted for by the lower lower court. Upon remand, remand, the lower lower court ruled in favor of of the the established in the Senate Senate report report State, noting that there there were not enough factors facto rs established support the Plaintiffs' po position. The Senate Senate Report which lists accompanying the VRA to support sition . The the factors factors intended to demon demonstrate possible determine inst institutionalized strate po ss ible ways to determine itut ionali zed racial inequality, inequa lity, however, states tthat hat the factors are not intended to be a numerical ""point po int list is is no way exhaustive (Senat (Senate 29, n. n. 118). e Report 29, 118 ). counting" device and the tist The third case relevant to felon di senfranchi se ment under Section VRA disenfranchisement Section 2 of the VRA was Joh nson v. Johnson v. Florida. The The case was filed by a group of ex-felons who had completed completed their sentences, yet had not been abl-e s. The rcu it able to restore their voting right rights. The 11th 1 1 Ci Circuit th story of racia ll y motivated franchisement , the th e state Court found that that,, despite a hi history racially motivated disen disenfranchisement, provision did not vio late the VRA. The urt noted that the law wa ffirmed in a violate The Co Court wass re-a re-affirmed co nst itutional co nvention after wh ite s and blacks constitutional convention after the Civi Civill Wa Warr which included both whites blacks in the delegation. Additionally, without a clea clearr statement statement of intent from Co Congress, ngress, the Court wass not persuad persuaded that thee results test o off Sect Section was intended to appl applyy to to Co urt wa ed th at th ion 2 was felon disenfranchisement. 5 A fourth case, Baker nt, although the case deals Baker v. v. Pataki, is is also also releva relevant, deals with curren tly incarcerated inmates who would theoretically currently theoretically regain their voting rights upon completion of their se sentences. Baker gives gives the issue of felon and ex-felon completion nt ences. Baker disenfranchisement because the the 22nd Ci Circuit Court deadlocked deadlocked affirming affirming se nfranchi sement some context because rcuit Court di n d lower court's decision decision in favor of the State, State, but generatin generating ideas for discussion the lower g some ideas discussio n on the issue nonetheless. nonetheless. The The half of the court court which sided with the Plaintiffs argued argued that Section Section 2 of of the VRA VRA applies applies to to felon felon disenfranchisement disenfranchisement provis provisions because ions because th is granted the authority in the 15\1\ 1 5 Amendment. The The other other half of the cou court rt Congress is was beyond the scope scope of Congre Congressional disagreed, holding that such an application was ssional authority. authority. The opinions in these cases agree agree that Congress both has has the authority to enact felons, federal legislation concern in g voting qualifications, including those pertaining concerning pertaining to felons, and that cu rrent state provisions of these kinds might fall under jurisdiction of the current under the jurisdiction the Vot in g Rights ss never expressly Voting Rights Act. Though Though Congre Congress expressly stated the intent that the VRA to tht h apply to these statutes, many researchers t ain that the 15 ndm en t grants researchers main maintain 1 5 Ame Amendment Congress the authority to pass federal legislation to guarantee equal political rights for mi norities. minorities. has the constitutional constitutional au authority matters, Because Congress has th ority to legislate over such matters, the issue becomes becomes whether whether or not such felon disenfranchisement statutes result in aa disproportionate impact. Stat State comparisons racially disproportionate e by state com parisons show a dramatic increase thee majority majority of those being African in the incarceration rates for almost all non-whites, th Americans. The The Sentencing Sentencing Project has has estimated that "the "the national black-to-whlte black-to-white ra ratio t io 6 of incarceration states, the disparity is incarceration"" at 5.6 to 1 (Maue (Mauerr & King King 2007, p. 10). 10). In some states, greater, black-to-white reaching (Mauer & King King 2007, 2007, p. 10). even great er, the th e black -ta -w hite ratio reachin g near 14 to 1 (Mauer 10) . Not only does does felon di senfranchisement have a racially disproportionate disenfranchisement disproportionate effect, effect, evidence points to racial tem itself. Non-w hites are racial animus within the criminal justice sys system Non-whites imprisoned whites, because offered more likely to be im pri soned than whit es, becau se they are less likely to be offered alternative sentencing. more serious alternat ive se ntenci ng. They are also more likely to be prosecuted for for a more se rious offense, while a white defendant charge charged stands a grea greater d with the same crime stands ter chance chance (Provine 2007). Non-whites of being offered a plea bargain (Provine 2007) . Non -whites also statistically stat istically receive more severe se sentences than their their white white counter counterparts (Provine 2007) 2007).. nt ence s than parts (Provine mo re severe Sincee the 1970s, punitive punitive crime policies such as laws concerning use and Sinc co ncernin g drug use distribution Ame ricans (We aver 2007, 23 0). distribution,, have disproportionately disproportionately affected African Americans (Weaver 2007, p. p. 230). population is directly directly co correlated capital In addition, a state's black population rrelated to to the use of cap ital puni shment; that is, rger a st ate 's Afri ca n Ame rican populatio punishment; is, the la larger state's African American populationn as as a percentage of the whole th e death penalty is used nt for fo r ce rtain offenses offenses whole,, the more more likely the used as as punishme punishment certain (Provin (Provinee 2007). Studies show that,"among th at, -among those tho se factors significantly signifi cantly increa sin g tthe he increasing committed, tted , being black and using a handgun are on par with one penalty for the crime commi another (Provine (Provine 2007). Cu rr ently one in three black males will become dise nfranchi sed at so me point in Currently disenfranchised some conviction constitute their lilifetimes fet imes due to a felony co nvi ction (Provine 2007). African Americans Americans co nstitute narrower subset, subset, consti constitute less than 14% of the population; black males, a narrower tute about half of that. convictions proportioned by racial racial identity, th at. If, lilike ke the rate of crime, felony co nvictions were proportioned then researchers would seean an inca incarceration rate ooff conside considerably less tthan 33%for for t hen researche rs wou ld see rce rati on rate rably less han 33% 7 Africa 0%, and being nearly the the sam e for for whites, Africann Americans. Americans. Estimates range from 15-2 15-20%, same it would produce a much larger la rger absolute absolu t e population of white felons felon s (Manza & Uggen population of analysis difference lysis fails fail s to account for for all relevant relevant variables, like the the difference 2006). Though this ana age di distribution between ra races, judicial in age st rib ution between ces, it indicates the the law enforcement enfo rcement and the judi cia l system disproportionately more inclined to of color, proportionately more to target ta rget people peop le of co lor, both in crime syste m are dis policy and criminal se sentencing. ntencing. The re are 5.3 million people disenfranchised disen franchised under under state st ate fe lon There felon nfranchisement statutes sta t utes in the the U.S. U.S. (Manza & Uggen 94 ). The racial dise disenfranchisement Uggen 2006, p. 94). senfran chised is not tati ve of the American population, proportion of those di disenfranchised not represen representative of the population, damages minorityy voting blocs, including voting blocs, including African Americans. America ns. Over the the past pa st 25 and dam ages minorit years, consistently vo voted candidates, yea rs, blacks have consistently ted for fo r Democratic Democratic ca ndidates, 9 out of of 10 times they were allowed allowed to (Persons 1997, p. 123). Disregarding race, felons and ex-felons (i(iff they vote) would vote in ffavor avo r of of Democratic candidates, with an average of of 70% preferring preferring es sin ce the mid-1970s mid- 1970s (Uggen Th is would would have these candidat candidates since (Uggen & Manza 2006, p. p. 190). This of the the 2000 Presidential election election definitively, definiti vely, and given a si mple affected the outcome outcome of simple majority to the Democratic Party "in "i n every presidential presi dential and se natorial election election from senatorial (Manza 1972 to 2000" (Ma nza & Uggen Uggen 2006, p. 191). Proponents conten contendd that states states do have legitimate legitimate reasoning reason ing for fo r the continuation off FD pract practices. However, such arguments, including of retribution, ices. However, including those of con t inuation o rehabilitation, deterrence, rehab ilitation, and det errence, have little empirical empirical support. suppo rt. The anecdotal evidence evi dence documented by so so many researchers resea rchers over the past few few decades (i(including ncluding contemporary researchers Manza Uggen) indicates that disenfr disenfranchisement co ntemporary research ers M anza and Uggen) anchiseme nt policies 8 simply reiterate tha t society holds them in disregard; ha t they reiterate to former former offenders that disregard; tthat they are are second class citizens. citizens. The The sheer disparate impact on minorities minorities warrants a thorough to achieve achieve full politica lit y for for all, analysis of these practices. practices. Having Having yet to politicall equa equality all, policy makers d States must further furthe r level the playing ground fo citizens. makers in the Unite United forr U.S. citizens. Ult imately, the arguments favoring favorin g the continuation Ultimately, continuation of current current di senfranchisement regimes are em pty when compared to the 1 in 40 age age appropriate disenfranchisement empty appropriate lt s kept from from voting. Little can li ze the archaic adu adults can be said to rationa rationalize archaic provisions fo r such disparity. Historica ll y, it is evident that state provisions were re sponsib le for responsible Historically, ses, keeping particular formed with racial racial bia biases, particular demographics demographics out of the polls. polls. There is in fact no reasonable as a state's sta t e's interest. reasonable method by which to legitimize FD FD as interest. II. History Hi story history minorities United of ma marginalization The collective hist ory of mino rities in the Unit ed States is one of rginalization in soc ial, eco nomic and politica try with social, economic politicall spheres. Both those who immigrated immigrated to thi thiss coun country better life, and those bro brought involuntarily, destined for lives of of servitude, ught involuntarily, servitude , hopes of a better experienced difficulty nin g equal righ t s of u.s. zenship. Un t il 1850, only difficulty In in gai gaining rights U.S. citi citizenship. Until property-holding (white and usuaUy usually literate) literate) men vot voted. property-ho ldin g (white ed. Women, racial and language language minorities, and men from the lower lower economic cfasses classes were not not allowed to exercise the their ir political voice through the staple of democracy - voting. Those captured in Africa and brought to the Western hemisphere as as slave labor had little cha chance nce for fo r basic human brought chance fo forr political rights. rights and no chance The political leaders setting the qualifications fo forr voting voting early in U.S. history effort justify the exclusion exclusion of blacks fro from Leonn made little effo rt to justify m the U.S. political process. A. Leo 99 Higginbotham, Jr. has has identified what he he terms the "Ten "Ten Precepts Precepts of American Slavery "formed the logical logical and and precedential foundation foundation for the American American Jurisprudence" that "formed and which continues to provide a platform for the unjust unjust slavery culture/' and marginalization of blacks blacks today (2001). (2001). These include the ideas ideas that blacks blacks are inferior, inferior, disposed of at their owner's will, the minimization minimization that slaves are mere property to be disposed number of free blacks, blacks, and and the denial of religious freedom (Higginbotham, 2001). of the number 2001). Lasting effects continue and and can can be seen seen emanating from the other other "universalities": "universalities": there should should be be no no recognition recognition of of the the rights rights of of black black families, families, education education should be there should be denied to to blacks, blacks, while while racial racial purity purity maintained, maintained, and and all all blacks blacks should should be be kept kept powerless powerless denied in all all aspects aspects of of life, life, including including civil civil liberties liberties or or the the ability ability to to resist resist at at (lastly) (lastly) any any cost cost and and in "by any any means means possible" possible" (Higginbotham (Higginbotham 2001). "by 2001). federal Upon the Union's victory victory in the the Civil Civil War, Reconstruction began with federal oversight of Constitutional Conventions in the former Confederate states. states. The platform of Constitutional for disenfranchisement was built at these conventions. New means had to for post-slavery disenfranchisement be devised to to keep African Americans AmericarTS from the polls. In Origins of the the New New South, C. C. Origins of Woodward shows the numerical numerical effect effect in Louisiana. Louisiana. Prior to to the the ratification of Vann Woodward new constitution in 1887, 130,344 African Americans were were registered to to vote Louisiana's new (Woodward (Woodward 1951, p. 342). 342). It is probable probable that votes cast by African Americans during during this time period period were not not reflective reflective of of their own interests, but but were were manipulated manipulated by whites. However, the the ratification of of this new new Constitution Constitution marked the the decline of of African American voters to to a mere mere 5,320; in 1904, the the first Presidential election election year in which aa poll tax was required, only only 1,342 1,342 blacks registered (Woodward (Woodward 1951, p. 342-3). 342-3). 10 10 Sub seq uent provisions ur ed that no African Ame rican wou ld be eligible to vote after Subsequent provisions ens ensured American would after 1900: al qualification s, property ifications, an d the grand father clause 1900: education educational qualifications, property qual qualifications, and grandfather 1 (making eligible prior to 1867 1867 or who were (m aking eli gible only those who were allowed to vote prior 1 descended someone who could effectively protecting poor, meone w ho coul d vote that year, effect ively prot ecting poo r, de scended from so combined qualifications prevented African Americans Americans in illiterate whites) combin ed with previous qualifications Louisiana from electoral participation participation (Woodwa (Woodward louisiana rd 1951). es mimicke d one another in the device s used Southern stat states mimicked devices used to qualify voters, se nfr anchi sing minorities. Ca rter Glass, attending the Virginia itutional th ereby di thereby disenfranchising Carter Virginia Const Constitutional ntion declared rimination! Why that is ise ly w hat we propose; Conve Convention declared,, "Disc "Discrimination! is prec precisely what propose; that exactly is what this co nve ntion was rectly convention was elected for" (Woodward 1951, 1951, p. 333) 333).. Di Directly following ates adopted felon following the end o off the Civil War, many Southern Southern st states felon senfran chi seme nt laws, h is re le vant to the VRA' h e tota lity of the di disenfranchisement laws, whic which relevant VRA'ss analysis analysis of tthe totality abama (1867), 868 ), Florida rgia ci rcumstances. These include Al circumstances. Alabama (1867), Arkansas (1 (1868), Florida (l868), (1868), Geo Georgia ssouri (1875), ina (1876), uth Carolina (1868), Mississippi Mississippi (1868), (1868), Mi Missouri (1875), North Carol Carolina (1876), So South Carolina Tennessee (1871)) and Tex Texasfl869) Manza 2003). 2003). nessee (1871 ast1869) (Behrens, Uggen & Manza (1868), Ten Believing blac ks more likely to co mm it so me crimes than whites, felon blacks commit some disenfranchisement provisions carefully constructed so, the drafters drafters believed, dise nfran chi semen t provi sio ns were ca refully constru cted so, grandfather blackss from the polis polls,, but allow whites to cast er clauses, would bar black they, like grandfath their votes. The man behind FD FD provisions for Alabama Alabama's Constitutional their votes. 's 1901 Co nsti t utional Convention, Fielding was clearr about which crimes crimes blacks were more apt to lding Burns, w as clea Conven t ion , John Fie commit (Hench (Hench 1998). Fo Forr instance, instance, he reasoned reasoned that under the consti constitutional commit tu tio na l is Important i m p o r t a n t to note n o t e that blacks blacks were w e r e nOI not permi p e r m i tttt eed d to Vale v o t e In in the South S o u t h In in 1867. 1867. :' It IS 11 se d for fo r "wife-beating" (Hench (Hench provision, 60% 60% of black voters would be disenfranchi disenfranchised 1998). Crimes which were, in the the minds of of the men at the Convention, Convention, just just as as likely likely to to committed of either either race, like murder, were not be co mmitted by members of not included in the felon disenfranchisement provision (Hench (Hench 1998). Some states imposed disenfranchisement crimes as a punishment for cri me s of "moral turpitude," turpitude," a designation completely complet ely up to judicial and not tied to any particular particular crimes (Hench (Hench 1998). discretion and th th ned the dismantling In the mid_20 mid-20 century, the Civil Rights Rights Movement Movement champio championed of grandfather clauses, poH form s of of race based vote denial in the poll taxes and other other forms United States. Called "J "Jim Hurrah"" by Virgin Virginia im Crow's last Hurrah ia Hench, felon outlasted other voting lasted other voting qualifications that had a history hi story of racial disenfranchisement out and an an abi ability disenfranchise minority voters disproportionately lity to disenfranchise disproportionately (1998). (1998). animus and The Voting Right has been heralded as the most successful Rightss Act of of 1965 has as one of the minorities in U.S. history. Withstanding challenge by W ithstanding challenge advances for the political rights of minorities states' rights su pporters in South v. Katzenbach, Karzenbach, the the Voting Voti ng Rights Act was used supporters South Carolina Carolina v. in numerous cases to protect the voting vottng rights of of minority individuals individuals and communities protect the (Hench, 1998). The lated by Justice Douglas in The principal reasoning was clearly articu articulated Harper " the right right to vote is too too precious, precious, too Harper v. v. Virginia Board of of Elections Elections in 1966: "the fundamental to be so so burdened or co conditioned" nditi oned" (383 U.S. U.S. 663 (1966)). (1966)). to poll taxes, taxes , the opinion op inion made clear that While Harper Harper dealt the death blow blow to voting qualifications must have a clear and reasoned proof of reasoned purpose, such as proof votmg and age age.. Minors lack legal capacity; it is less likely they'll residence and capacity; it they'll comprehend comp reh end the issues at hand hand enough to make a res responsible requirement ponsib le decision. decision. The residency requirement 12 protects the one person - one vote system. lation of fe lons and system. However, as as the popu population of felons ex-felons rises in the U.S., the responsibility should be long to to the states state s to prove this belong voting di squalification necessary or reasonable. reasonab le. disqualification III. Cases In interpreting the application of the Voti ng Rights the result Voting Rights Act and the resultss test of the amendments, disagree ove overr the app application's Section 2 of 1982 amendmen t s, federal courts disagree lication's legality. Section the amended VRA states that any vot voting qualification must not not result result in a discriminatory discriminatory ing qualification impact minorities. Opponents of felon disenfranchisement argue that this imp act on minorities. thi s includes racial disparities among those disenfranchised di sparate felony disenfranchised due to racially disparate convictions invalidate such provisions under the Voting Rights Act. Ot Others co nvictions and should invalidate hers maintain that the ability ability to disenfranchise state's protected under the disenfranchise felons felo ns is a stat e's riright ght protected maintain th second clause 14th Amendment. These constitutional constitutional arguments have been seco nd clau se of the 14 presented courts, historical contemporary nted in the co urt s, leaving much of the hi storica l and co ntemporary contexts open prese to interpretat interpretation. io n. ca nt cases have been decided in federal court court dealing with the legality Four signifi significant since amendment of the VRA. The de decisions of felon disenfranchisement si nce the 1982 amendment cisions either narrowly upheld felon disenfranchisement statutes or dismissed dismissed the complaints ei ther narrowly th e co mp laints for standing. Many argue that Supreme Supreme Court in intervention warranted terve nt ion is warranted fo r a lack of standing. 1912). Muntaqim v. v. Coombe, Coombe, lacks any real ). A fifth case Muntaqim (Handelsman 2005, 2005, p. 1912 significance because the plaintiff plaintiff was never a voter-eligible nc e because voter-e ligible resident in the state st ate in which significa 13 he was was later incarcerated, incarcerated, though the majority majority of judges in the case noted that the VRA may apply to felon disenfranchisement statutes. The Sixth Sixth Circuit U.S. Court of Appeal Appeal decided decided the case of Wesley Wesley v. v. Colfins Collins (he reaher known as (hereafter as Wesley) in 1986. Charles Wesley, Wesley, an an African American American in Tennessee, was convicted "of me of larceny "of being an an accessory after after the fact to the cri crime received a suspended suspended sentence" sentence" (791 F.2d F.2d 1255). Subsequent to his his gu guilty and received ilty plea, Wesley was was disenfranch disenfranchised Tennessee ised under a Tenn essee state law which mandates tthat ha t anyone state federal court pardoned convicted of a felony in any st ate or fede ral cou rt cannot vote until being pa rdoned or civill rights as permitted permitted by state law, mak making ing Tennessee one of upon restoration of full civi fourteen states to disenfranchi disenfranchise ex-felons and felons. se both ex-felons felons . Wesley argued argued that minority minority ex-felons we were Attorneys for Wesley re victims of both vote denial and and vote dilution, both illegal illegal under the amended VRA, as a result of the ition, they argue d that the law violated In add addition, argued disenfranchisement policies in Tennessee. In the 14 ate argued was a 14th Amendment's Equal Protection Clause. The The St State argued that there was th and com compelling reason disenfranchisement provision. The The Cou Court legitimate and pell in g re ason for the disenfra nchise m ent provision. rt thatt the provisio provision racial animus; animus; the reason reason for disparity concluded tha n was was not the result of racial minorities than whites commit commit serio serious crimes, disproportionate us crime s, "the di sp ropo r tiona t e was that more minorities impact su suffered black Tennesseeans does does not ''result' qualification result' from fro m the State's quali fica t ion of ffered by black race and colo colorr and and thus the Ten Tennessee not the right to vote on account of race nessee Act does not violate Voting (791 F.2d F.2d 1255). The The Equal Protect Protection Clause was also not te the Vo tin g Rights Act" (791 ion Cla use was viola violated by the statute, beca because Wesley could not prove intent to discriminate. use Wesley 14 In a second rict second case, Baker v. v. Pataki, Pataki, argued argued en en bane bancinin the the U.S. U.S.Second SecondDist District Court of Appeals fe lons of ethnicity alleged that Appeals in December in 1995, 1995, felons of minority race or ethnicity New York's felon disenfranchisement disproportiona tely deprived AfricanAfrican disenfranchisement laws ""disproportionately spanics of the right to vote, resulting Americans and Hi Hispanics resulting in a violation violation of of section 2 of of the VRA" (Handelsman York' s felon di senfra nchi sement provi si on (Handelsman 2005, p. 1913). 1913). New York's disenfranchisement provision applies only to "those serving felony felony sentences, sentences, including including prison terms, probation probation or parole" according to the Ford Foundation (2004, p. 4). Baker's argument two assertions: that felon disenfranchisement di se nfranchi semen t in New argument included two nal York had a racially disparate impact, and that New York had a racially biased crimi criminal frican -American and Hispanics pri se justice system system.. Baker noted noted that while while "A "African-American Hispanics com comprise approximately % of approximately 22% 22% of of the New York state population" population" the groups constitute constitute 82 82% of the del sma n 2005, the felon sta t e's prison population state's population (Han (Handelsman 2005, p. 1913). According to Baker, the the results disenfranchisement disenfranchisement law violated violated the VRA VRA based based on the results test test.. revealed that The second n made by Baker was based dy that ""revealed second assertio assertion based on a stu study there was a racial disparity disparity in conviction rates rates and sentence types" in New York's court court (Handelsman 2005 2005,, p. 1913) 1913).. This argument argument sought to establish discriminatory system (Handelsman to establi sh discriminatory demonstrating that felon dise disenfranchisement nfranchi sement provisions, along with intent by demonstrating discriminatory patternss in se sentencing, disproportionate numbers numbers of di sc rim inatory pattern ntencing, had placed disproportionate minorities bars, stripping them them of of the right to vote vote.. As noted in Wesley, Wesley, minor it ies behind ba rs, stripping As noted th discriminatory constitutes Equal Protection Protection Cl Clause 14th discrim inatory intent consti tutes a violation vio lation of the Equal au se of the the 14 Amendment. 15 15 The District District Court held that it was was not the appellants' race race that deprived them of of the right to vote, it was was their decisions decisions to commit commit felony crimes. crimes. The The Court found found unconvincing the study showing the racial racial bias bias in conviction and sentencing in New New York. Deciding Deciding that the study could not prove whether whether the system system was was biased biased or if if nd n simply more minorities minorities were caught and and charged charged for criminal acts, the 2 Circuit Court Appeals deadlocked deadlocked on the issue, affirming the lower lower court's decision. of Appeals decision. Evenly divided, half half the court court found the application of section 2 of the VRA to to th felon disenfranchisement disenfranchisement went beyond the scope scope of the 14th 14 and 15 1 5 Amendments. Amendments. th th "[bjecause it is is not not They found that the Plaintiffs had failed to state a claim "[b]ecause unmistakably clear that, in amending § 1973 in 1982 to incorporate incorporate the 'results' test, test, unmistakably Congress intended intended that the test be applicable to felon disenfranchisement disenfranchisement statutes" (85 of the plain statement statement rule, requiring requiring that Congress' intent F.3d 919). 919). This is an example of should be clearly recognizable, recognizable, leaving little or no room to interpretation. tb.e 2 The remaining remaining members of of the nd n d Circuit Court of of Appeals Appeals argued that "the "the of the Voting Voting Rights Rights Act is not Supreme Court has already decided that section 2 of not subject to the the plain statement statement rule" (85 F.3d 919). 919). These judges also contended contended that the results to test of of section 2 of of the the VRA VRA "is a valid exercise of of Congressional power, power, at least in some, test though though not not necessarily all, all, circumstances" circumstances" (85 F.3d 919). 919). Using the the basis that this application application of of the the VRA VRA is permissible and Congress' authority legitimate, legitimate, the judges who supported supported the the appellants' claims expressed expressed regretfully regretfully that, from their their interpretation, th the the second clause clause of of the the 14 14th Amendment Amendment (which they they believed was intended intended to to ensure 16 16 enfranchisement of of previously enslaved blacks) enfranchisement blacks) was now now being used to disproportionately dilute the voting voting strength strength of of minority voters. disproportionately Farrakhan v. Washington Farrakhon v. Washington (hereafter (hereafter Farrakhan Farrakhan I), decided in 2003 in the Ninth Ninth Circuit U.S. Court of the Wesley opinion. of Appeals Appeals distanced itself itself ever so slightly from the opinion. Under Washington state law, even some who have completed completed their sentences may Under disenfranchised. This policy is applicable to ex-felons "who "who have been convicted convicted remain disenfranchised. of violent multiple offenses" (Ford Foundation Report 2004, p. 4). after of violent or mUltiple 4). Released after sentences, ex-felons in Washington, regardless regardless of serving an adequate portion of of their sentences, the amount re­ amount or type of of offenses, are theoretically theoretically rehabilitated rehabilitated and ready for for reintegration in the community. community. integration Farrakhan plaintiffs contested their disenfranchisement under section 2 of The Farrakhan disenfranchisement under the VRA VRA as as amended in 1982 "because "because the criminal justice system was biased against minorities, causing a disproportionate minorities, causing disproportionate minority representation representation among those being Tt!e District disenfranchised" (338 F.3d 1009). The District Court found that felon felon disenfranchisement was not disenfranchisement not the the result of racism, racism, but but more more likely likely result of of discrimination discrimination in Washington's criminal justice system. system. The Court also stated that the appellants had voting rights. no standing by failing to show their eligibility eligibility to regain voting court that the the appellants lacked While the 9th Circuit agreed with the lower lower court standing, the case was remanded for for further proceedings regarding the claim of of racial voter qualification qualification alone, but bias. The previous standard had not not been to look at a voter but to analyze the totality of the circumstances. Totality of of the the circumstances, circumstances, a doctrine doctrine of circumstances. Totality 17 17 analysis named in §2 §2 of the VRA and and defined in Gingles v. v. Edmisten, inquires about the the "interaction "interaction of the challenged challenged legislation with with those historical, historical, social, and and political political inherent biases asserted asserted to exist factors" that relate within the jurisdiction, including the inherent system (791 (791 F.2d F.2d 1255). in the criminal justice system The 9th Circuit panel's panel's majority majority wrote that "[slection "[sjection 2 plainly provides that a an appellant is is able to show, show, based voting practice or procedure violates the VRA when an circumstances, that that the the challenged challengedvoting voting practice practice results results inin on the totality of the circumstances, discrimination on account of race" (338 F.3d F.3d 1009). 1009). The The State argued that Congress did discrimination not intend for section 2 to be applied to felon disenfranchisement statutes, made mention of of typical factors identified identified by Congress. Also Also irrelevant irrelevant evident from its lack of mention was any alleged because it was unidentified alleged racial bias in the criminal justice system system because unidentified by Congress in its renewal and amendment amendment of the VRA 1982. The The 9th 9th Circuit Circuit found, found, VRA inin 1982. contrary to the interpretation of the District Court, that "Congress did not intend contrary ofthe intend the because Congress did not listed factors to be exhaustive," and that "simply because not specifically identify racial bias in the criminal justice system identifying aa identify system as as a relevant factor factor in identifying Section 2 violation violation does not not mean that itit should be excluded from a totality of of the circumstances analysis" (338 F.3d 1009). 1009). Judge Kozinski, dissenting, noted the courts are deeply divided on the issue, and declared"[t]his declared"[tlhis is a very dark day for for the the Voting Rights Rights Act" because because "[i]n "[iln adopting adopting aa constitutionally groundwork constitutionally questionable questionable interpretation of of the Act, the the panel lays the the groundwork for for the the dismantling dismantling of of the the most most important piece of of civil rights legislation since since · 18 18 Reconstruction" (Handelsman (Handelsman 2005, 2005, p. p. 1916). 1916). Kozinski Kozinski argued that any application of of the Voting Rights congressional Rights Act to states' states' FD FD practices would seriously intrude upon congressional argued, have a constitutional constitutional right to disenfranchise those convicted convicted power. States, he argued, th second section of the 14th 14 Amendment. That provision explicitly explicitly of crimes under the second overruling it, according to Kozinski, unless excludes any subsequent legislation from overruling has clearly declared that they intended to raise raise a constitutional constitutional question, question, Congress has has never done. which it has Upon remand, Farrakhan Farrakhan became Farrakhan Farrakhan v. v. Gregoire Gregoire (Farrakhan {Farrakhan I/) II) and was retried in the U.S. District for Eastern District Court for Eastern Washington. Plaintiffs Plaintiffs cited numerous numerous expert reports reports documenting documenting the racial disparities in every stage stage in the criminal justice system. According to expert expert reports submitted by both sides the case, minorities reports submitted sides in the minorities are more likely charges filed against them them after likely to to be searched likely to have charges after arrest, more more likely searched by more likely likely to to be convicted of of selling hard-core narcotics, even police, and are far more though experts testifying testifying for for the Plaintiffs most dealers in Washington are Plaintiffs claimed that most 234). Whites Whites charged with crimes of of any sort in white (No. CV-96-076-RHW, Document Document 234). more likely likely to to be released on their own recognizance recognizance and are more Washington are more likely to to be given alternative alternative sentences, sentences, often preventing preventing a felony felony charge from becoming likely aa part of their records if they complete mandatory mandatory requirements requirements such such as they complete as counseling or community community service (No. CV-96-076-RHW, Document Document 234). "[E]ven after after legally relevant characteristics, such as offense offense seriousness, offenders' offenders' criminal criminal histories, and weapons charges, are taken into account" substantial disparities disparities remain between between how how white and minority minority offenders offenders are treated (No. CV-96-076-RHW, Document Document 234). 234). , 19 19 Chief Justice Robert H. the U.S. District Co urt did not H. Whaley of of the Court not interpret the evidence in the same way. Despite the the Plaintiffs' argument Allen v. State Board Board of argument that Allen v. State of Elections should be be done done so so that that itit offers offers "the "the Elections found that application application of the VRA VRA should scope in combating combating racial discrimination," discrimination/' the District District Court relied on broadest possible scope the Senate Factors crea created conjunction with Senate Factors, t ed in conjunct ion wit h the 1982 amendments, which favored ; the State (393 U.S. U.S. 544, 544,567). 567). The ThePlaintiffs Plaintiffs con contended that there there isisno no magic magic number number of of t ended that factors that exhaustive, so a section 2 t hat have to be proven to win a claim, nor is the the lilist st exhaustive, claim may exist exist even even if if its its identifyin identifying are not not included included in in the Senate Factors. cla im may g features featu res are t he Se nat e Factors. Furthermore, acco according to the 2nd Ci Circuit Court's reading of of Senate Report 29, n. 118, the 2 rcu it Cou rt's reading Senate Report 29, n. 118, Furthermore, rd ing to n d the identified were not meant meant to a "mechanical "mechanical 'point counting' (791 the factors facto rs identified were not to be be a 'po in t count ing' device" device" (791 The Dist District Court its opin opinion F.2d 1255). The rict Cou rt relied heavily on its ion in Farrakhan Farrakhan I, and ordered aa summary judgment the Stat State, saying that "[although of racia raciall bias bias in in jud gment for for the e, saying that l/[aJl th oug h the the evidence evidence of summary Washington's criminal system is is comp compelling, it is is simply one factor in the Wash ington's crimi nal justice j ustice system el lin g, it si mply one facto r in the totality totality of the the ci circumstances the Co Court must cons consider when eval evaluating Plaintiffs §2 claim" and and of rcumsta nces the urt must id er when uat ing Plain tiffs § 2 claim" that the ttotality circumstances"does not support "Washington's otality of the circu m stances does not suppo rt the t he claim that "Wash ington's felon disenfranchisement disenfranchisement law law resul results in discrimination discrimination in in its its electoral process on on account account electo ral process felon t s in of race" race" (338 (338 F.3d F.3d 1009). 1009J. of Farrakhan I is fundamentally because the Court found that Forrokhon fundamentally different from Wesley because t hat bo th Congress had the the authority to create the VRA VRA and force states to comply, and that both es. The Farrokhan decision , the VRA could apply to felon disenfranchisement disenfranchisement statut statutes. Farrakhan decision, opinionn in Baker, set the precedent similar to the dissenting opinio the first precede nt for fo r a serious challenge cha ll enge to a felon disenfranchisement disenfranchisement statute statute under under the Voting Rights Act Act.. Voting Rights 20 20 The fourth fourth case, Johnson Johnson v. v. Governor Governor of of Florida (Johnson), {Johnson), was was heard by the 11th 11 th Appeals 2003 2003 and and then vacated vacated in 2004, 2004, and and differs differs from from the first two two Circuit Court of Appeals because it was was filed by and on behalf of ex-felons. ex-felons. Florida Florida is is one of the few states cases because automatically restore rights to those who have completed their which doesn't automatically reinstatement of sentences, but requires that ex-offenders apply to the Governor for a reinstatement The Governor may not (though he once could) delegate the responsibility, responsibility, voting rights. The each case himself. The The process process is is painstakingly slow and an ex-offender ex-offender but must decide each is lucky to have his application application considered, considered, let alone have his rights restored. restored. The Court in Johnson, Johnson, agreeing with the Baker Baker decision, decision, argued that without aa clear-intent clear-intent statement statement from Congress, the amended § 2 of the VRA VRA could not not be as applying to felon disenfranchisement interpreted as disenfranchisement statutes (353 F.3d 1287). The disenfranchisement practices are permitted under under the 14th majority believed that felon disenfranchisement 14 th Amendment Johnson "It "It is a long-standing rule of of statutory interpretation Amendment and wrote in Johnson not construe a statute statute to to create a constitutional that federal courts should not constitutional question question statement from Congress endorsing this understanding" (353 F.3d F.3d unless there there is is a clear statement 1287). Ultimately, Ultimately, the the majority noted, felon disenfranchisement disenfranchisement should be analyzed analyzed cautiously cautiously because because it is "deeply "deeply rooted in our our nation's nation's history" history" (353 F.3d 1287). majority's analysis analysis of of the historical historical background found found that there there was simply The majority's not enough reason to to assume that the the felon felon disenfranchisement disenfranchisement provision provision in Florida's Florida's not Constitution was motivated motivated by "racial animus" (353 F.3d 1287). Justice Justice Kravitch, writing Constitution for for the the majority, argued that the the constitutional constitutional revision that took place in 1868 was 21 21 conducted conducted under federal supervision supervision and and should should not be be viewed as as the result of racial racial "a racially mixed mixed delegation delegation produced produced a constitution constitution granting suffrage suffrage to to bias because "a all races" (353 (353 F.3d F.3d 1287). However, However, when the Plaintiffs pointed to one of the the men of all had kept Florida Florida from becoming becoming leaders of the convention claiming "that he had Kravitch argued argued that this most likely referred to the legislative 'niggerized/" Justice Kravitch apportionment system system and and a stipulation that allowed the state's state's governor to appoint appoint apportionment county officials (353 (353 F.3d F.3d 1287). Judge Kravitch Kravitch found that federal oversight and a constitutional delegation were enough to ensure ensure that Florida's Florida's felon racially mixed constitutional policies were race-neutral, race-neutral, but couldn't guarantee the protection protection of disenfranchisement policies minorities when it came came to issues of apportionment. apportionment. Reasoning such as as this becomes minorities and weakens weakens a proper analysis of totality of the circumstances. difficult to justify justify and circumstances. dissenters contended that the totality of of the circumstances circumstances should have The dissenters prevailed, and that, given the social race bias in the criminal social and historical context, If"race "a racially discriminatory discriminatory effect" effect" is justice system" which produces "a is very much within the scope of of the VRA (353 F .3d 1287). Judge Wilson, Wilson, who concurred in part and dissented F.3d dissented in Congress found specifically that itit was was part, stated that, when creating the VRA, "Congress If predict the variety variety of of means that would be used used to infringe on the right right to impossible to predict F.3d 1287). Judge Wilson recognized recognized another another element "deeply Ifdeeply rooted rooted in our vote" (353 F.3d nation's history" - that of minorities of racial discrimination discrimination and creative efforts efforts to block minorities from from exercising the franchise (343 F.3d 1287). 22 All four four cases have been denied certiori by the Supreme Court, leaving interpretation. However, the issue of felon subsequent cases open to new interpretation. disenfranchisement and the VRA has has not not been settled in the federal court court system. system. policies, the judges Although most decisions decisions have favored state disenfranchisement policies, judges were split in each each Court, leaving room for doubt about whether for doubt whether felon th disenfranchisement is excluded from § 2 of because of 1 4 Amendment. Amendment. of the VRA because of the 14th th The 14th 1 4 and 15 1 5 Amendments altered the balance between federal and state th th empowered Congress to enact legislation to enforce the Civil Civil War powers, and empowered th 14 and amendments. While voter voter qualifications qualifications are still within the state's control, the 14th 1 5th Amendments allow protect the rights of minorities, 15 allow for for federal intervention intervention to protect of minorities, th which includes the creation of Rights Act. of aa of legislation like the Voting Rights Act. Despite the lack of clear declaration of of application to FD FD statutes, statutes, the the VRA VRA may may very very well well apply apply to to such such design and reach of amendment to section 2 of provisions. During discussion of of the design of the amendment the Act, the Senate recognized that it it could not Senate recognized not possibly list all applications of of the results test, and that no application should be excluded from judicial review under the VRA for of listing. lack of Case law set by the Supreme Supreme Court in Allen v. v. State Board Board of of Elections dictates as broadly as as needed to prevent that the Voting Rights Rights Act should be interpreted interpreted as prevent racial discrimination. Thus, with the congressional congressional record of of violations and the shift shift of of power power government to protect protect racial and linguistic minorities' from the states to the federal government minorities' voting of the VRA to apply to state felon voting rights, there there is adequate authority for for section 2 of 23 23 disenfranchisement practices. practices. In addition, Hunter Hunter v. v. Richardson Richardson stated stated that that the the 14th 14 th Amendment "unfettered discretion to disenfranchise felons" (353 Amendment never granted states "unfettered 1287). These two groundwork for two cases lay some of the groundwork for challenging felon F.3d 1287). Rights Act. Act. There is an incontestable incontestable disenfranchisement under section 2 of the Voting Rights and disparate racial racial impact from felon disenfranchisement schemes, and Allen found AI/en found that the VRA interpreted to favor protecting protecting the electoral voice of VRA results test should be interpreted voter both minority voters and communities. Meanwhile, states retain the right to set voter qualifications, so long as as they serve serve legitimate legitimate interests. The majorities majorities in the preceding cases interpreted interpreted the VRA narrowly, redefining redefining the totality of of the circumstances circumstances analysis. While the Senate Senate Report that accompanied the 1982 amendments to the VRA noted that that legislation legislation must must be be analyzed analyzedto to see seehow how itit VRA noted interacts with other majority of other social social and historical contexts, a majority of the judges in each each case did not recognize each state recognize the history history in the United States States (and documented in almost each in question) of using both bold and subtle means to disenfranchise minorities; means including felon disenfranchisement. In Johnson, Johnson, the majority majority opinion opinion conceded conceded that, while there likely were racially motivated for the inclusion of motivated reasons reasons for of a felon felon disenfranchisement provision in the Constitution, the subsequent constitutional constitutional convention in which it was renewed voided the necessity necessity of looking at the racial racial motivations in the past. past. The violence, motivations violence, intimidation and creative disenfranchisement policies used used to keep minority voters from the polls in Florida should have carried more poliCies weight in the analysis analysis of of the provision under section 2's totality analysis. weight 24 24 ed the The totality of the circumstances circumstances analysis should have also includ included functionality criminal systems each case. Plaintiffs Plaintiffs in Farrakhan functionality of the cri mina l justice ju stice system s in each Farrakhan II 1/ submitted contemporary empirical racism subm itt ed contempora ry empi rical evidence that suggested suggeste d institutional racis m in each Th e State agreed with the evidence's va lidity and the Court found ste p of the process step process.. The evidence's validity evidence "compelling/' Ninth tthe he evid ence "co mpelling," yet the District Court decision deci sion upon remand from Ninth Circuit bias was only one relevant Senate noted "[i]tt is Ci rcuit found that this th is bias Senate Factor and not ed that "[il Senate Facto Factors favor" {Farrakhan II). Plaintiffs' burden to show the Senate rs weigh in their favo r" (Farrakhon /I). Senate explicitly st states Senate factors aare not an exhau exhaustive Sena t e Report 29 explicitly at es that the Senate re (a) (al not st ive list, intended used as a counting me mechanism; doesn't if there and (b) are not intend ed to be use d as chanism; it do es n't matter matt er if with identify in instances t h more factors factors proven or not, they are simply to to help identify stanc es of is one side wi when application of § 2 is is warranted. warranted. majority states four cases agreed with the stat es that there there are The majo rity opinions in the four legitimate pellin g rea sons for for disenfranchising di senfranchisin g ex-felon s. Only one of of these legitimate and com compelling reasons ex-felons. nion, relying on John locke's social cont ract theory, argues argues reasons is listed. One opi opinion, Locke's social contract t hat, through through their criminal acts, these individuals vo luntaril y surrendered the civi that, voluntarily civill liliberties berties afforded them by government gove rnment (7 91 F.2d ). Thi (791 F.2d 1255 1255). Thiss becomes a slippery slope, however, beca use, as soned in his di ssen t in Richardson because, as Justice Marshall rea reasoned dissent Richardson v. v. Ramirez, Ramirez, "le]ven jaywal king or traffic convi ct ion co uld conceiva bly lead to disenfranchisement, "[e]ven a jaywalking conviction could conceivably since § 2 (of the 14th w een felonies and 14 Amendment) does not differentiate bet between th misdemeanors" (418 U.S. 24). The worry wo rry that ex-felon 24). The ex-felonss will vote sheriffs sheriffs and judges out out of use of their thei r co nvi ct ion s and incarcerations is nei ther compelling com pelling nor aa of office beca because convictions neither legit legitimate ima te st state ate interest. As As the Supreme Supreme Court found in Carrington Carrington v. v. Rosh, Rash, no one can ca n 25 voting because essential point in both be kept from voting because of of how how they might might vote. The essential requiring eligible arguments is is that, without a compelling state interest, a qualification qualification requiring voters to have clean clean criminal records has has little legal justification. justification. Divisions in the federal appellate courts have not not settled the issue of of VRA provisions. Questions over Congress' authority application to to felon disenfranchisement provisions. to apply voting voting rights legislation to aspects aspects traditionally traditionally seen as as within the authority of FD are often the state remain unsettled. The arguments against applying the VRA to FD proper analysis of the circumstances. history of made without proper analysis of of the totality of circumstances. The history minorities, unequal sentencing practices in criminal justice systems, marginalization of minorities, systems, and the disparate impact of minorities should be of felon disenfranchisement statutes on minorities together when reviewing such state statutes. Though analyzed together Though courts may be wary of pursuing claims of discriminatory justice systems, the courts should consider of racially discriminatory other as the history history of other factors, such as of the statutes. _IV. _ IV. Populations From 1989 to to 2002, 2002, the U.S. prison population population more than doubled to over 2 million 2006, the Department of Justice reported million people. In 2006, Department of reported that the combined total of prison and jail inmates in all 50 states and federal penitentiaries penitentiaries was 2,245,189 people As the populations populations of to grow, electoral effects (2007). As of felons and ex-felons continue continue to become clear. clear. Because of of felon and ex-felon disenfranchisement policies in the United United Uggen States, 5.3 million million people, or one in forty adults, cannot currently currently vote (Manza & Uggen 94). Incarceration rates for for every demographic are on the rise in most states, 2006, p. 94). 26 26 is even even greater for and women. Subsequently, the numbers but the increase is for black men and of those who have have finished their their sentences, but who are disenfranchised as as ex-felons, ex-felons, isis also on the rise. Statistics supporting the idea that persons persons of color commit more crimes than whites are rare, rare, and critics have well-documented evidence institutional evidence suggesting that institutional racism has has created created much of of the racial racial disparities seen in correctional systems across the country today. The The Plaintiffs in Farrakhan II /I cited numerous expert reports claiming dealers in Washington that, although nearly 70% 70% of all drug dealers Washington State State are white, more than half of of those convicted for distribution distribution of minorities (No. of narcotics narcotics are minorities (No. CV-96-076-RHW, Document 234). 234). Other evidence, including the increased increased statistical likelihood that aa is not white (controlling for all search will occur during a routine traffic traffic stop if if the driver is not white other variables), variablesL and the discriminatory treatment treatment of non-whites in every stage of other of the arrest, pointed to an inherent criminal justice system system after after arrest, inherent bias against minorities in the system (No. 234). However, criminal justice system (No. CV-96-076-RHW, Document 234). However, the District disenfranchisement of the Plaintiffs Court found that the more immediate cause for the disenfranchisement felonies, rather than institutionalized institutionalized racism. was that they had committed committed felonies, The greater than 100% 100% increase in the number of inmates in just over a decade deserves inquiry. This rapid growth in convictions of of prison and jail sentences coincided with the start of President President Reagan's War on Drugs. Prior to the 1980's the primary methods for combating addiction and drug use treatment methods and use rested on treatment efforts to drive down demand; demand; the political atmosphere in the late 70's 70's and early 80's 80's efforts of the aisle to push for more stringent drug control led policymakers policymakers from both sides of push for control 27 27 efforts, with a greater greater emphasis on punitive approaches, instead of of rehabilitation efforts, punitive approaches, (Provine 2007). administration encouraged the media to focus its attention on crack The Reagan administration popular support for its efforts, efforts, especially the $1.7 billion Drug Free to gain popular support for Free America Act (Provine 2006). 2006). Crack was easily obtained, highly addictive, and relatively relatively inexpensive; meanwhile the media broadcasted images that solidified meanwhile the solidified the connection between between crack and black, inner-city inner-city neighborhoods 2006). Increased neighborhoods (Provine 2006). Increased police attention in these neighborhoods resulted with more severe sentences for offenders and larger budgets neighborhoods for offenders for drug enforcement. for enforcement. While the policies were presumed by the public to be race-neutral, the for crack users by Congress disproportionately disproportionately punished enhancement of of penalties for minority groups. Crack is derived from cocaine. cocaine. A major difference between between the two two is major difference for Caucasians, while while crack was viewed as as that cocaine was viewed as as a drug of of choice for substances are equally addictive and the scourge of of black communities. Both substances would expect a Similar of tactics against the two: two: similar dangerous, and one would similar range of police efforts, funding for for programs, and sentencing. efforts, funding for crack-cocaine crack-cocaine possession 1980's, Congress enacted enhanced penalties for possession in the 1980's, effectively creating a 100-to-1 for offenders offenders when compared to those found effectively 100-to-l difference difference for found guilty of of cocaine. cocaine. Possessing five grams of of crack resulted in a mandatory guilty of possession of mandatory minimum of 5 years, years, while while possession of of 500 grams of minimum sentence of of cocaine received the same sentence. U.S. Sentencing sentence. In a 1995 U.S. SentencingCommission Commissionreport, report, Congress Congress sent sent aaclear clear message to law enforcement enforcement agencies agencies to to "focus "focus as as many many resources resources as as possible possible on on crack crack 28 arrests, including arrest and prosecution of small-time rs and se llers" (Provine 2006, small-time use users sellers" 2006, p.120). p. 120). The Wa gs has ation . Warr on Dru Drugs has undoubtedly undoubtedly driven the increase in the prison popul population. for drug offenders. offenders. From 1980 to 2002 the rate of incarceration jumped ju mp ed 12 ttimes imes for Hullll w writes out of fifteen people in jails prisonss was ri tes "in 1980 one out jai ls or prison Elizabeth Hu incarcerated drugg offense; by 2002 tthe number w was outt of fou four" (2006, p. 25). incarcera ted for for a dru he number as one ou r" (2006, However, during the sa same decrease violent crime; a decline that Howeve r, during me period there was a decrea se in violent has been consist consistent since early (Manza Uggen 2006). 2006). Prope Property ent si nce the ea rly 1990's (M ama & Uggen rty crime has decreased, though though not not with with the the same sameconsiste consistency asviolent violent crimes crimes (Manza (Manza&& also decreased, ncy as 2006). In fact, dru drugg use use hasn't increa increased thee last decade or so, so, a period which which Uggen 2006). sed in th hass seen seen twice as many felony felony co convictions compared (Manza & Uggen ha twice as nvictio n s (1986 co mp ared to 2002) (Mama 2006).. While crime isn't increasi increasing, convicted; more 2006) ng, more Americans are co nvi cted; mo re often those convicted minority co nvict ed are m inority men. ara te effect. Thou gh white offen ders have These policies have had a racially disp disparate Though offenders ey have al so been less likely to be always re numerous in absolu t e figu re s, th always been mo more absolute figures, they also co nvicted or give n se rio us se ntences tha t erparts. The 1991 convicted given serious sentences thann their minority coun counterparts. 1991 Drug Abuse Survey Survey es estimated reported usi using National Dru g Abuse t imated that, of those those who reported ng crack-cocaine crack-cocai ne some theirr lilifetime, 65% white, 26% 26% were African Ame American, me point during thei fetime, 65 % were white, rican, and at so Hispanic. were forces 9% were Hi spanic. In 1992, there t here we re more than 904 drug task fo rces across the country, aggressively pursuing crack crack bust busts; same yearr the Se Sentencing ntry, all aggressively s; that sa me yea ntencing cou Commission reported states every defendantt prosecuted for either either possession Co mmi ssion repo rted that in 16 st ates eve ry defendan possessio n 29 29 or distribution not a single defendant defendant was distribution of crack was was a member of a racial minority minority - not (Provine 2006, 2006, p. 120). Caucasian (Provine Even with the creation of mandatory minimum sentences sentences by Congress, white mandatory minimum white defendants were far more likely to receive alternative alternative sentences, such as as drug treatment, for the treatment, in lieu of jail or prison time. Barbara Barbara Meierhoefer, Meierhoefer, a researcher researcher for Center, Federal Judicial Cente r, documented that "In " In 1990 lower-scale drug offenders offe nders who were as likely as as others others to receive a sentence sentence of of five or more black were more than twice as and "black "black off offenders twenty-one percent and Lati Latino enders were twenty-one no offenders were years" and twenty-eight percent more like likely than twenty-eight ly th an whites to receive a sentence of of at least the minimum minimum term" (1992, (1992, p. 391). The disproportionate from parallel ing the gene ral populations of disproportionate results are far from paralleling general the Unit ed States, even commission are suggested to to remain United even though rates of crime commission co nstant ac ross racia ne 2007). Lead in g researchers researche rs on constant across raciall lines (Provi (Provine Leading on the the subject, subject, Marc Marc Mauer and e that "African Americans Ame ric ans are incarcerated at nearly six (5.6) (5 .6) and Ryan King, writ write inca rce ra ted at twice twice the t he rate of times the rate of whites" (2007, (2007, p. 3j. 3)7 Hispanics are incarcerated whites (Mauer & King 3). King 2007, 2007, p. 3). Five sta te s with the nation's ha rshest disenfranchisement di senfranch ise ment laws - Iowa, Florida, Florida, states harshest sissi ppi, Alabama disp rop ortionat e felon population Mis Mississippi, Alabama and and Virginia Virginia - show racially disproportionate populationss when co mpared to the states' lations. These states st ate s have instituted ins tituted felon compared states' general general popu populations. ch require that felons be pardoned (sometimes by disenfranchisement provisions whi which rida) or apply to have their thei r voting voting rights restored. the governor personally, personally, such as as in Flo Florida) te resto ration tend to to be difficult to to navigate and These app li cation processes for vo application vote restoration 30 there rce s available to to ex-felons after afte r they they return to to the the community there are few resou resources community (Manza & Uggen Uggen 2006). Iowa, which has a relatively relatively small African American population population (approximately (approximately 2% of the state's population black), ha of 121, population is black), hass a total felon and ex-felon population population of 418 (U.S. Census Bureau, Bureau, 2000). Most Most of of these individuals, 98,311, have served their full sentences and have been integrated integrated back into the community commun ity (U.S. (U.S. Census Bureau currently disenfranchised di senfra nchi sed ex-felons are African American. American. So, So, 2000). In Iowa, 10,750 currently population while African Americans constitute const itute a marginal 2% 2% of of the the popu lation in Iowa, they constitute 11% population (Manza & co nst itu te almost 11 % of of the the state's disenfranchised ex-felon population Uggen 2006). Florida ' s felon disenfranchisement disenfranchisement practices were dramatized dramatized through through the the lens Florida's of the 2000 U.S. Presidential election; it also has severe racial disparities di spa rit ies in its felon and ex-felonn populations. Although Florida'ss population, population, 21% of Florida' 21 % of of former ex-felo Although black's are 15% of felons are African American (Manza & Uggen 2006). where blacks blacks A third st ate with felon disenfranchisement state disenfranchisement policies is Mississippi, Mississippi, where 36% of the population, population, and 61% of of the ex-felon population population (U.S. Census make up 36% 2000). Two-thirds Two-thirds of of the legislature must before an ex-felon may have his Bureau, 2000). the legisla ture mu st agree before restored. franchise restored. the state population population in Alabama is black (U.S. (U .S. Census Bureau, Bureau, Nearly 26% o off the 2000).. And, And, of the over a quarter 2000) quarter of of million people who who have been convicted co nvicted of aa half are black, black, nearly twice twice the rate of of the the general population population (Manza & Uggen Uggen felony, half 2006). who have completed 2006 ). . For those who completed their t heir sentences, sentences, 48% are African Africa n American 31 31 (Manza & Uggen Yet, because Uggen 2006). 2006). Yet, because Alabama, Alabama, like like the the others, others, continues continues disenfranchisement even after after the completion completion of an individual's sentence, sentence, these people voiceless in the electoral process. remain voiceless In Virginia, nchisement provisions, of the Virginia, with similar felon disenfra disenfranchisement provisions, 19.6% of population 54% of the ex-felon population American, giving it the greatest population and 54% population is is African American, rate of of racia raciall disparity disparity (Manza (Manza & Uggen Uggen 2006). Despite the alleged reasons reasons for the racially disproportionate disproportionate ex-felon populations in the United States, the most important fact is that they they are di sproportionate. Tho ugh the prevailing opin ion in the federal court em is that aa disproportionate. Though opinion court syst system party must demonstrate demonstrate that a state's policy stems from a racially motivated motivated intent to prove a cla im under the VRA, there the re is some sentiment, both among government claim government officials officials and Americans Americans in general, general, that ex-felon disenfranchisement is both inappropriate inappropriate and se of rength. invalid becau because of the the resulting resulting dilution dilution of of minority minority voting voting st strength. v. V. Th e Future of of FD FO Policies Policies The esting a Prior to 1982, Section Section 2 of of the Voting Rights Rights Act required that those cont contesting voting qualification qualification or procedure prove that it was created with the intent to and/orr ethnic minorities. minorities. The United States States Commission Commission disadvantage language, racial and/o Civil Right Rights several instances President, President ance s in a report to the the President, on Civil s detailed seve ral of these inst Senate and Speaker of the House. The Commissio Commission of the Senate n argued that the VRA, though advance the participation participation of minority voters voters,, had yet to fulfill all of of its it had helped to advance mi ssion recommended that Congress amend Section Section 2 of goals. Additiona ll y, the Com Additionally, Commission the VRA to prohibit voting 'effect' of discriminating discriminating on the basis voting practices ""that that have the 'effect' baSis 32 of race, colo r, or inclusion in a minority color, minority language language group" group" (U.S. (U.S. Commission Commissionon on Civil Civil Rights 1981, for many 1981, p. 92). 92). The The Commission Commission recognized recognized that inten intentt is difficult to prove for claims of race race based vote denial and dilution. dilution. One such example was was the passage of a bill by the Texas state legislature in 1975 subsequent subm submission preclearance under § 5 and its subsequent ission to the Department of Justice for preclearance history of discriminatory voting (the section of the VRA that requires those areas with a history di scriminatory vot ing procedures to hav have voting advance by the DOJ), which e any changes to voti ng law approved in advance purged rolls. Citizens would then have have to re-register would have completely pu rged the voter rolls. by a certain date or their The U.S U.S.. Attorney General, th eir registration would be terminated. termina t ed. The Attorney Genera l, while noting noting there was no evidence that the legislation was created with aa discriminatory intent but was was meant to remove ineligible voters, opposed opposed the change, discriminatory possible detrimental detrimental impact on minority minority groups (United States Commissio Commission citing the possible n on 1981). The Attorney Attorney General General found that the history history of difficulty difficulty in voter Civil Rights 1981 ). The registration faced minority groups might lead to "voter "voter apathy," and that, faced by these minority county officials send noticee by mail of requirement, unt y officia ls did not plan to se nd notic of the requi rement, most because co would not be aware of the cha change Rights 1981, p. nge (United States Commission on Civil Righ t s 1981, 27). Attorney General General was able to stave stave off off some While the Attorney so me changes based on the rity voters, such as anticipa ted effect anticipated effect on mino minority as the proposed purging in Texas, an intent intent-is ine ineffective combating instances of of attempted attempted or actual based claim is ffective in co mbating many instances n proof t ion is impossible to to acquire, discrimination. Ofte Often proof of of intentional intentional discrimina discrimination 33 dence showing conside rab le effort though the effects are still the same. Historical evi evidence considerable and success in disenfranchising minorities s motivated U.S. minorities ha has motivated officials in the U.S. government, from the Justice De partment to Cong ress and the Supreme Department Congress Supreme (ourt, Court, to err on potential threats to the th e political political and civil libertie the side of cautio cautionn when dealing with potential libertiess th th gua ranteed to racial, the 14th guaranteed racial, ethnic, and language language minorities minorities under under the 1 4 and 15 15 th Amendments. There are two two arguments im s that felon disenfranchisement is is arguments that support cla claims of the VRA as as amend amended 1982. One is vote den denial, illegal under Section Sectio n 2 of ed in 1982. ial, in which an individual is denied the riright ght to to vote based lor. Policymakers based on his race race and co color. Policymakers and judges rebuffedd this argument, claiming of minorities minorities are thi s argu ment, cla imin g that large numbers of jud ges have often rebuffe disenfranchised provisions because of their higher propensity propensity to com commit sen fran ch ise d under such provisio ns because mit di crimes. compiled several decad decades support claim, and crim es. Data compi led over tthe he past several es does not su pport this claim, agree maintain st stabile across rac racial scholars generally ag ree that crime rates tend ten d to maintain abile across ial most scholars lines (Provine 2006). lines 2006 ). Vote dilution, a second second possible possible VRA claim. claim, occ occurs racial,, ethnic or Vo te dilution, urs when a racial is disa disadvantaged because "voting language minority group is dvantaged becau se of any "voti ng qualification, or prerequisite to vot voting, standard, practice^],] or procedure" imposed ing, or stand ard, practice! impose d by a State. Sta t e. This prerequisite as a mo more effective argument against felon disenfranchisement. re effective dise nfranchisement. African may serve as Americans consistently Democratic candidatess co consistently time, nsi ste ntly vote vo te for fo r Democrat ic candidate nsis tentl y 90% of the time, Ame rica ns co and tthe percentage community he disenfranchisement of a significant pe rcentage of the com munit y makes it less community might elect its cand candidates recognized by the likely that the commun ity might idat es of choice, a right righ t recognized 34 Senate during the creation of the Voting Rights Rights Act and something which the Act is meant to protect protect (Persons 1997, p.129). primary concern for for civil rights activists who maintain that subtle This has has been a primary methods of of redisricting, redistricting, setting voter voter qualifications and other other practices may seem seem raceneutral at face value, but takes a toll on the voting rights of of minority groups. groups. Under the neutral value, but logic of the VRA, it doesn't matter matter why a qualification qualification disenfranchises disenfranchises minority voters disproportionately, to disproportionately, only that it does. Congress, in amending the VRA VRA in 1982 to incorporate a results test, established that a voter not acceptable if it, in incorporate voter qualification qualification is is not any way, disadvantages minority population population disproportionately. disproportionately. disadvantages aa minority Establishing a vote dilution claim rests largely on a totality of of the circumstances circumstances of the minority analysis, including the history history of minority disenfranchisement, the size of community, of those disenfranchised. disenfranchised. The racial animus that guided community, and the number number of many disenfranchisement policies is one of the Senate Senate Factors Factors listed (though it need not not be) and would serve as as a significant-part significant.part of of the analysis analysis in those states where it can can be of aa minority population shown. Other factors, such as as the size of population compared to the size of a minority prison population, are much easier. easier. Crime victimization victimization surveys surveys could be how criminal activity activity may cut across racial lines. lines. If available, available, details utilized to show how regarding relative frequency of of alternative alternative sentencing for for whites when compared to minorities would be relevant to a totality of the circumstances circumstances analysis. minorities amendment of the Vote denial has proved largely unsuccessful, despite the 1982 amendment Shapiro, writing in the Yale Law Journal, Journal, argues argues that a vote denial claim VRA. Andrew Shapiro, 35 could be brought brought by a minority based based on the idea that s/he is more likely to to suffer disenfranchisement disenfranchisement under under FD FD provisions than are white offenders offenders (1993, p. 537). if the plaintiff has has yet to suffer a harm, the Court will likely rule that s/he lacks However, if to suffer disenfranchised, the U.S. Appellate Appellate Court Court System Systemhas hasruled ruled the U.s. standing. If they have been disenfranchised, Baker, that an individual's ability to not been previously, as as in Wesley and Boker, to vote vote has not rescinded because of of race, race, but but because because of of the commission of of a felony. While the re sci nded because the courts Johnson and Farrakhan Farrakhan were willing to entertain arguments, to ente rtain these argument s, the cases' in Johnson not yet clear because because of the vacat vacation of the Johnson Johnson opinion before ion of opinion and before outcomes are not anotherr appeal to appellate court in Farrokhan Farrakhan II. to the appellate II. anothe VI. Normative Applications to vote based felony convict ion that did not Denying any person the the righ rightt to based on a past felony conviction not treaso n is an inappropriate punishment. Robert Dahl wrote in include voter vote r fraud or treason inappropriate punishment. Democracy of making binding Democracy and and Its Critics Critics that, "throughout "throughout the process process of binding decisions, citizens opportunity, forr ci ti ze ns ought to have an adequate oopportunity, pportunity, and an equal oppo r tunity, fo expressing as to the final outcome" (Co (Conway, nway, et al. al. 2005, 2005, p. 87). express ing their preferences as rightt for citizens, including including those Voting should be an inalienable righ fo r all citizens, those reintegrated reintegrated into society sentence of felon disenfranchisement disenfranchisement soc iety upon se ntence completion. The The arguments arguments in favor of fail to sh show results proponents claim, claim, and public opinion opinion does not not favor felon ow the re sults proponents disenfranchisement policies, combined disparity negates the senfranchisement po licies, which co mbined with racial disparity di justification of FD FD practices. just ificat ion of 36 Proponent felon disenfran chisement generally cite as Proponentss of felon disenfranchisement as reasoning for the the continua t ion of senfranchi semen t as continuation of such practices: practices: the history history of the punishment, di disenfranchisement retribution sement as pa citation an d retribution,, deterrence, and disenfranchi disenfranchisement as a form of inca incapacitation and me merit, each s. reh abilitat ion. While each rehabilitation. each of these reasons reasons has has so some each has has problem problems. Disenfranchisement as shment for crime is a practice with deep roots in as a puni punishment "att lea least as far back back as as ancient Greece Greece or Rome" (Hull 2006, 2006, p.16 p.16). formss history, "a st as ). Such form death"" we were throughout Europe Europe and England, and re common practices throughout ooff "civil death disenfranchisement with off oth other previously di se nfran chise ment was often coupled w ith the loss o er previo usly held privileges, privi leges, the abi ability to inherit inherit property property or or en enter into aacont contract (Hull, 2006 2006 p. p. 17). 17). While While such as the lity to t er into ra ct (Hull, the co colonies civilil death for those co convicted off ce certain crimes, lonies permitted civ nvicted o rtain cri m es, typically those de emed most mo rall y rep rehensible , the state in at ed most o deemed morally reprehensible, statess elim eliminated off these practices, practices, with the exception of di senfranchise ment (Hull 2006). disenfranchisement Som h as rginia, ha d felon felo n di senfra nchisement statutes Somee states, states, suc such as Vi Virginia, had disenfranchisement statutes in effect effect r; key sta t utes were adopted or signifi ca ntly modified after long befo re th before thee Civi Civill Wa War; statutes significantly after the r. Des pit e some politically -otiva ted uses of felon dise nfr anchi se men t during Civil Wa War. Despite politically m motivated disenfranchisement during riod in the United St ates, pro ponents argue that more tes have adopted this pe period States, proponents more sta states adopted nstruction , indi ca t ing the use fuln ess ooff th simila similarr policies since since the end of Reco Reconstruction, indicating usefulness thee policy in the crimi nal just ic e syste m. One ment s based th e history criminal justice system. One of the key argu arguments based in the history o off felon 't broke e Co urt Just ice disenfranchisement is is ""ifif it ain ain't broke,, don't don't fix it. it."" However, as as Suprem Supreme Court Justice Feli er noted, ""people people have a tendency to confuse the familiar familia r with the Felixx Frankfurt Frankfurter the fo rm of punishmen t 's deep sea t ed roots in necessary" {Hull (Hull 2006, 2006, p. 16). 16). A particula particularr form punishment's seated appropriateness, usefulness, usefulness, or or legality. legality. history does not prove ititss appropriateness, 37 37 Retribution is a second second argument in favor of of felon disenfranchisement. argument contend that a punishment punishment should fit fit the the crime, and that Proponents of this argument felons, committing offenses, should face more more severe punishment, of felon s, by committi ng more serious offenses, which disenfranchi se ment could reasonably be a part part (Mama Uggen 2006, p.35). p.35 ). Thi disenfranchisement (Manza & Uggen Thiss failss to show that society's need for retribution argument fail for retribut ion for for a crime is adequate proportionality, in which the means reasoning for disenfranchisement. The principle principle of of proportionality, mean s proportionate to rights to then ends, demands that any intrusion intru sion on the the righ t s or or civil should be proportionate libertiess of any citizens must be justified Retribution does not not give adequate libertie justi fied by need. Retribution all felons, regardless of of any other other circumstances. As Jeff Jeff Manza cause to disenfranchise ~ Christopher Uggen note note ""the all felons the blanket disenfranchisement disenfranchise ment of of all felon s - murderers and Christop her Uggen and petty thieves of propor proportionality" thieves alike - violates the principle pri nciple of tionality" (2006, (2006, p. 35). 35). professor ssor of of Political Science at Rutgers, argues that the notion of Elizabeth Hull, profe effective as crimes, retribution is not effective as a punishment punishment that th at fits fit s most crim es, but instead ostracizes ostrac izes excludes former former offenders indefinitely after after the completion and excludes offenders indefinitely completion of of their sentences sentences (2 006 ). (2006). Advocates Advocat es of felon disenfranchisement disenfran chiseme nt policies polic ies also cite ci t e the the practice's usefulness usefulnes s deterrent. Wh While is, in part, FD is ineffective as a deterrent. ile this this claim cl aim is, part , legitimate, legitimate, FO ineffective as as compared to other deterrents, and usually does not not add deterrent Many former other deterrent value. value. Many forme r offenders value rightt to vote, and wish deterrent va lue the righ wis h they they still had it. However, that this thi s is a lesser deterrent than possible possible rere-incarceration. disenfranchisement as aa in ca rceration . One of of the the key problems with dis enfranch ise ment as deterrent is is that many potential of such statutes; deterrent potential or actual offenders offenders are unaware of statute s; even those working fo forr tthe system don't he State in the the criminal crim inal justice justice syste m or or legislative legisla t ive branch don 't 38 understand the voting rest ri ctions that accompany criminal convictions (Manza & Uggen Uggen restrictions 2006, p. 36). writes "certainly 36). Researcher Elizabeth Elizabeth Hull writes "certainly states that disenfranchise exnot" (2006, felons experience no less crime or recidivism than states that do not" (2006, p. 44). A fourth argument in favor of felon disenfranchisement asserts that these policies reduce the capacity cap acity of crimina ls to commit crimes. Similar to criminals commit later later crimes. proponents maintain that preventing preventing criminals from casting ballots will incarceration, proponents prevent them from committing committing voti voting-related offenses. This is probably true; however, ng-related offenses. is probably prevent voter fraud represents only a tiny fraction of the crime committed committed by recidivi recidivists voter fraction of sts in the United States. Disenfranchisement only prevent preventss offenses with an actual ballot. ballot. Fe lons co nvicted of making ill ega l campaign tributions ... would not be restrained ""Felons convicted illegal campaign con contributions... to cast ballot Uggen from doin doingg so by restricting restricting their rights to ballotss on election day" (Mama (Manza & Uggen 2006, p. 36). Lastly, so me argue that felon di se nfranchi se m ent aids in an offender's some disenfranchisement offender's rehab ilitation (Mama rehabilitation (Manza &Uggen 2006, 2006, p. 36). 36). While disenfranchisement policies could be used as as an incen t ive for co ntinued good behavior, re -e nfr anchisement post con vict ion is incentive continued re-enfranchisement conviction rarely granted as the offender as such a reward for good behavior. Often the offender must undergo aa tedious application process process to restore his voting voting rights, instead of of having them them automatically ted after after a pre -det ermined period of appropriate approp riate behavior automatically gran granted pre-determined behavior.. Furthermore, Manza and Uggen to conclude Uggen state that "there "there are reasons reasons to s. Disen franchi semen t cannot help to disenfranchisement hi nders rehabilitative hinders rehabilitative effort efforts. Disenfranchisement pac ities that will re habilitate offenders foster the skills skills and ca capacities rehabilitate offenders and help them become law-abiding citize ns (2006, citizens (2006, p. 37). 39 Public opinion opinion has also steered away from favoring felon disenfranchisement disenfranchisement Clem Brooks and published in 2004 practices. A study conducted by Manza, Manza, Uggen, and Clem Opinion Quarterly of enfranchising Quarterly shows that, while while Americans disapprove of in Public Opinion now approves of of restoring restoring voting voting rights for for ex-felons, incarcerated offenders, a majority now probationers, and parolees (p. 282-283). probationers, to this study, a majority of of Americans support support the restoration According to restoration of voting longer incarcerated. Support varies depending on voting rights to to offenders offenders who are no longer what of offenses what stage of of the criminal justice system offenders offenders are in and the types of committed. In the case of committed. of "generic ex-felons," 80% of of Americans support support re- enfranchisement (Manza, 283). This is the highest level of enfranchisement (Manza, Uggen Uggen & Brooks 2004, p. 283). support recorded; however, 66% of of Americans support support support the restoration restoration of voting voting rights for ex-felons previously convicted of of a violent violent offense (Manza, for (Manza, Uggen Uggen & Brooks 2004, p. 283). The lowest support for for re-enfranchisement, re-enfranchisement, 52%, 52%, is reserved for for ex-felons lowest level of support sex crime (Manza, convicted of a sex (Manza, Uggen Uggen & Brooks 2004, p. 283). Findings from the study indICate 60% support support voting voting rights for for parolees and indicate that 60% between 68% support support re-enfranchisement re-enfranchisement for for probationers probationers (Manza, between 60% 60% and 68% (Manza, Uggen Uggen & 283). The evidence in this report shows that policies that disenfranchise Brooks 2004, p. 283). offenders are contrary sentiment. State legislators should criminal offenders contrary to general public sentiment. look to their individual to see see if felon disenfranchisement disenfranchisement policies serve individual constituencies to the public interest. interest. If not, legislative action should be taken quickly and remedy the to the electoral strength of of minority communities. damages already done to communities. 40 40 Lastly, felon disenfranchisement disenfranchisement does not constitute an appropriate punishment for their sentences because of the racial racial disparity that for offenders who have have completed their protect the exists in the criminal justice system. The The Voting Rights Act was was intended to protect voting rights of minorities minorities and the electoral strength of minority minority voting blocs. While states' rights are protected protected in the American American federalist system, the exercise of states' has led to the disproportionate U.S. that rights has disproportionate disenfranchisement disenfranchisement of nonwhites in the u.s. violates individual liberties protected by the 14th 1 4 and 15 1 5th Amendments. Amendments. th th In 2002, the Supreme Supreme Court affirmed that the 1965 VRA was was intended to end purpose, combined with the "racial discrimination in voting" (Ochs 2006, p. 81). 81). This purpose, 1982 amendment which changed changed the the burden burden of of proof proof from from proof proof of of intent intent to to the the demonstration of a racially discriminatory effect caused by voting qualification or racial disparities in the practices, indicates Congress' intention to create minimal racial th electoral process. Though Though states retain the right to create voting qualifications, qualifications, the 1 155 th Amendment gives Congress the ability ability to place place restrictions on states' abilities in this area. Felon disenfranchisement disenfranchisement has has had a substantial substantial impact on the outcome of America's elections over the last 37 years. With a population so so closely closely politically disenfranchisement of of the divided, Ochs estimates that "the disenfranchisement of even 2 percent of population likely distorts the electoral process," (2006, (2006, p. 81). 81). Using Using inferential inferential statistics, Manza disenfranchisement has Manza and Uggen have estimated that felon disenfranchisement has given given the the Republican Party a measurable advantage in every national election since 1972 (2006, measurable advantage (2006, p. 190). 41 41 According to Manza and Uggen, without felon disenfranchisement disenfranchisement practices, Al AI Gore would have won the the Presidency 192 ). In U.S. Presidency in 2000 (2006, p. 192). U.S. Senate Senateelections elections 1972, the most conservative seven since 1972, conse rvative estimates puts at least seve n seats won won by under Democratic control in the ex-felon Republicans under th e absence absence of of state sta te ex-felon practices, and the more liberal liberal disenfranchisement practices. the U.S. Senate Senate would would have been more throughout from1995 froml995 to Uggen 2006, p. 195). throughout to 2007 (Manza & Uggen of such policies, and the the disparate impact impact on racial Given Americans' disapproval of minorities, rea son to to maintain felon disenfranchisement disenfranchi semen t practices. minorities, legislators have little reason maintain felon national level should work work to to eliminate eliminate unfair Policymakers on both a state and national unfair voting voting felon disenfranchisement. disenfranchisement Not only only is this a more more pragmatic pragmatic and qualification qualificationss such such as felon fair system for the intent of the 14th for all voters, but it's also a huge step in satisfying the of the 14 th Ame ndment and the the Voting Rights strengthening the the electoral electo ral voice of of minority Amendment Rights Act- strengthening communities. VII. Conclu sion Conclusion In the United States, a struggle has ha s been waged by minorities activist s to minorities and activists gain social for racial and ethnic ethnic minorities, social and political political equality equality for minorities, especially African can Americans. One ca n see see through through the statistical statisti cal data alone that these citizens are disproportionately adv adversely affected by felon disenfranchisement disenfranchisement practices. The use of disproportionately ersely affected disenfranchisement largely la rgely began during during Reconstruction as a reaction reaction to to federal felon disenfranchisement oversight and control of of Southern constitutional co nstitutional conventions. conven tion s. Such provisions are overSight seriously destructive to strength communities. serio usly destructive to the the political political stren gth of of minority communities. 42 42 The modern practice of felon disenfranchisement continues to rely on on this this framework for its foundation, though the practice has has undergone judicial judicial archaic framework several times. The The four cases that have have been been heard in the federal courts since scrutiny several th was amended in 1982 failed to establish establish a clear legal legal precedent. While the 66 the VRA was th Court, in Wesley Wesley v. v. Col/ins, Collins, maintained that any discriminatory discriminatory impact resulted resulted Circuit Court, not from the felon disenfranchisement provision itself, but rather from an an increased propensity for African Americans Americans to commit commit crimes, crimes, the other other cases did not go so so far as propensity as generalize the criminality criminality of an an entire entire race. In Baker Baker v. \i. Pataki Pataki the 2nd Circuit Court's to generalize n d split decision decision reaffirmed reaffirmed the lower lower court's decision decision in favor of New York State, State, which Rights Act could not be used used to invalidate felon felon decided that the Voting Rights The Appellate Court agreed agreed that states have the right to to disenfranchisement. The th disenfranchise felons under under the 14th 14 Amendment, and half half of of the judges contended that th the application of 14 and 1 of the VRA's second second section went went beyond the scope scope of of the 14th 155 th th Amendments, however, the other other half half of of the judges argued that section 2 was aa legitimate exercise Congressional^power. The The dissenting judges wrote that it was legitimate exercise of Congressionalpower. th regretful 1 4 Amendment, which was meant regretful that the 14th meant to to guarantee blacks' suffrage, was now now being interpreted interpreted to to dilute their voting voting strength. the 1 11th of Appeals Appeals decided in Johnson Johnson v. v. Florida that the Likewise, the 1 Circuit Court of th of the 14 14th Amendment Amendment permits permits felon disenfranchisement statutes, and second section of th that given the the long history history of of its use, use, should not not be subject to to analysis analysis under under the the Voting Rights Act unless Congress directs the the court court to do so. so. ItIt remains to to be seen what what will 43 happen to Johnson Johnson and other other ex*felons ex-felons in Florida since since the Court's decision was vacated in 2004. The si ngle case in which an appellate court d with the convicted felons was single court side sided Farrakhan Farrakhan v. v. Washington. Washington. Though Though the lower lower court court had ruled in favor o off the State of th t h Washington rt found that not Washington,, the 9 Circuit Cou Court not only are felon disenfranchisement disenfranchisement scope of the Voting Rights Rights Act, but also that Congress' directio direction statutes well within the scope n thorough analysis analysis of the to the courts when amending the Act in 1982 demands a thorough totality of the circu circumstances. The 9th (ircu Circuit such an an analysis analysis would have mstances. The it argued that such t h alleged bias in Washington's criminal justice system. included alle ged bias U.S. isisunable unable to to vote vote due due to to felon felon Currently, one in forty adults in the U.S. disenfranchisement rcera t ed, the number disenfranchisement provisions. With over two two million people inca incarcerated, number of disenfranchised will steadily increase. rcemen t policies, increase. Law Law enfo enforcement policies, the War on Drugs, rtunities among other son s, have had a racially and unequal educational oppo opportunities other rea reasons, inal justice systems. Though disparate impact on those entering entering state and federal crim criminal systems. Though the courts courts have viewed the demographic results of of felon disenfranchisement disenfranchisement to stem mi ssion by race, the statistical data does not from a difference difference in rates of of crime com commission not son popu lations do not mirro unequivocally prove this. this . U.S. U.S. pri prison populations mirrorr the general population population in terms of race race.. The Wa Warr on Drugs Drugs has has only increased the disproportionate disproportionate percentages of minorities minorities disenfranchised under FD FD policies. Dilution Dilution of minority voting power power holds the greater promise for success as as an argument against against felon disenfranchisemen disenfranchisementt practices than the improper improper denial of an individual individual right to vote. While vo vote te denial considers in individual dividual instances instances,, vote dilution 44 44 analyzes the ability of minority communities to elect representatives of their choice. choice. Because FD FD policies affect language language and and racial racial minorities minorities at a disproportionate disproportionate rate, rate, have proportionally proportionally less strength. Under the amended language language of these voting blocs have Rights Act, Act, petitioners petitioners must provide evidence to show that state state section 2 of the Voting Rights and where where FD practices negatively affect certain classes more than others. When and petitioners should also also provide empirical data to demonstrate demonstrate other other racial racial possible, petitioners inequalities, such as as in public education and criminal justice systems. systems. Those challenging of racially motivated motivated policy making should include include FD statutes in states with histories of institutionalization of of biased biased lawmaking and enforcement. enforcement. evidence establishing the institutionalization Felon disenfranchisement disenfranchisement is also questionable policy. Public support support for these practices is is dwindling, dwindling, and between 60 and 80 percent of of Americans Americans believes that voting voting rights should be automatically automatically restored upon completion completion of of prison time, even if if an offender probation or parole. The most common arguments in favor offender continues to be on probation of disenfranchisement fail to to represent represent the actual results of of the the practice. of felon disenfranchisement Supporters argue that these policies are an effective effective form of of retribution. However, American legal standards, relying relying on the principle principle of of proportionality, reject notion. Punishments including including felon disenfranchisement disenfranchisement don't don't always fit fit the the crime, this notion. not be used in such a broad manner. There is no empirical empirical evidence to and should not support that felon disenfranchisement disenfranchisement fits the the crime. support disenfranchisement has a lengthy lengthy history history in the the United United States, Because felon disenfranchisement policy makers are less inclined inclined to to tamper tamper with the the policies. A history history of of state and federal policy not equate equate to to appropriateness appropriateness or or effectiveness. Though losing the the right to use does not 45 45 vote may prevent nvicted of voter fraud from further offenses, it unlikely to prevent a felon co convicted of voter it is unlikely prevent rs from recidivism of other types, especia lly since si nce many prevent the millions millions of of offende offenders of other especially offenders disenfranchisement part of of their offende rs are unaware that disenfra nch isement is a part thei r sentences. sentences. Furthermore, arguments suggesti suggesting ng that felon disenfranchisement disenfranchisement is useful as as aa Furthermore, rehabilitation technique are also unsupported. rehabi litation technique un supported. While While such practices could co uld be used to encourage offenders encou rage offe nders to comply with the law, law, no state attempts attempts this approach. Instead, felonss and ex-felons are ofte oftenn forced highly technical processes felon fo rced to to navigate difficult difficul t and highly processes to regain their vDting voting rights. isement practices is The racia raciall disparity disparity that results from felon disenfranch disenfranchisement enough reason for state legislatu res to to reformulate reformulate cri mi nal justice policies. The reason for legislatures criminal intention of the 14th the Voting Voting Rights Act was to to protect the voting 1 4 Amendment Amendment and the voting th right Amendment's second clause clause to to shield fe lon rightss o off minorities. minorities. USing Using the the 14th 14 Amendment's felon th disenfranch isement provisio n s from the VRA's jurisdiction jurisdiction co unters Congress' intention disenfranchisement provisions counters in pa ssi ng the passing the Act. Act. 46 References Kousser, 1M. The Shaping Politics: Suffrage Suffrage Restriction and the J.M. (1974). The Shaping of of Southern Southern Politics: Restriction and the Establishment New Haven: sity Establishment oj of the One-Party One-Party South 1880-1910. 1880-1910. New Haven: Yale Univer University Press. Woodwa rd , CV. of the New South: 1877-1913. Woodward, C.V. (19S1). (1951). Origins Origins of New South: 1877-1913. Baton Rouge: Rouge: Louisiana State University University Press. Persons, G.A. and Representation. Representation. New Brunswick: Transaction G.A. (1997). Race and Publishers. Manza, J. & Uggen, C. C. (2006). Locked Out: Felon Disenfranchisement Disenfranchisement and and American American Democracy. Democracy. Oxford: Oxford University University Press. Provine,O.M. Chicago: Provine, D.M. (2007). Unequal Unequal Under Under Law: Race in the War War on Drugs. Chicago: University University of of Chicago Chicago Press. Disenfranchisement of of Ex-Felons. Ex-Felons. Philadelphia: Temple Un iversity Hull, E.A. E.A. (2006). The Disenfranchisement University Press. Press. U.S. Commission on Civi (19~1). The The Voting Act: Unfulfilled Civill Rights. Rights. (1931). Voting Rights Rights Act: Unfulfilled Goals. Washington, D.C.: D.C.: Government Government Printing Office. Office. Committee the Judiciary of the United States Senate. Senate. (2006) Renewing the Committee on the of the (2006).. Renewing Temporary Temporary Act: An Introduction Introduction to the Evidence. (S. (5. Provisions of Provisions of the Voting Voting Rights Act: Hrg. 109-555). Washington, D.C.: D.C.: Government Government Printing Office. Office. ng up the Vote. Ford Foundation Hughes, D. D. (2004 (2004,, Fall). Fron Frontt Lines: locki Locking Foundation Report. 47 Higginbotham Higginbotham Jr., Jr., A.L. A.L. (1997). The The Ten Ten Precepts of of American American Slavery Slavery Jurisprudence. Jurisprudence. Retrieved June 22, 2008 from from http://academie.udayton.edujracej02rightsjprecepts. htm http://academic.udayton.edu/race/02rights/precepts.htm Hench, V.E. (1998). The Death of Voting Rights: Rights: The Lega Legall Disenfranchisement Disenfranchisement of of Minority Voters. Case Western Voters.Case Western Reserve Law Review, 48(4), 48(4), 727-299. 727-299. Weaver, V.M. (2007). Frontlash: Race and the Development Development of of Punitive Punitive Crime Policy. Studies Studiesinin American American Political Political Development, Development, 21, 230-265. Harper Harper v. Virginia State Board of Elections, 383 U.S. U.S. 663 (1966). th th Johnson v. Governo Governorr of Florida, 353 F.3d 1287 (11 (11 Circuit Circuit April 12, 2005). e. nd 3d 919 (2 Baker v. George E. Pataki, Governor Governor of of the the State of New York, 85 F F.3d ( 2 Circuit Circuit May May 30, nd 1996). 1ld nd Muntaqim v. Coombe, 449 F.3d 371 (2 rcuit May ( 2 Ci Circuit May 4,2006). 4, 2006). Harper ia Board of Harper v. Virgin Virginia of Elections, 383 U.S. U.S. 663 (March 24, 1966). th th llin s, 79 rcuit June S, Welsey v. Co Collins, 7911 F.2d 12S5 1255 (6 (6 Ci Circuit 5, 1986). tll th rcui t Ju ly 25, Farrakhan v. State of Washington, Washington, 338 3 J 8 F.3d F.3d 1009 1009 (9 ( 9 Ci Circuit July 25, 2003). 2003). Motion for ry judgment, Farrakhan v. for summa summary v. Gregoire, No. CV~96-076~RHW CV-96-076-RHW (P. (P. Washington Washington January 27, 2006). 2006). Bureau of tistics. (2007). Press Release: of Justice Sta Statistics. Release: Prison and and Jai/lnmates Jail Inmates at at Midyear Midyear 2006. stice, Office of ics. 2006. Washington, Washington, D.C.: D.C.: U.S. U.S. Department of of Ju Justice, of Justice Statist Statistics. t istics. (2007) t es at Bureau of Justice Sta Statistics. (2007).. Bulletin: Bulletin: Prison and and Jail Inma Inmates at Midyear Midyear 2006). 2006). Washington Washington,, D.C.: D.C.: U.S. Department of of Justice Justice,, Office Office of of Justice Programs. 48 48 U.S. Census Hispanic Population Surpasses 45 Mi/{ion Census Bureau News. (2008). U.S. U.S. Hispanic Population Surpasses Million Now 15 Percent Washington, D.C.: D.C.: U.S. U.S. Department of of Commerce, U.S. Percent of of Total. Washington, U.S. Census Census Bureau. Mauer, M. & King, S. (2007). Uneven Justice: Justice: State Rates of of Incarceration King, R. R. S. Incarceration By Race and Ethnicity. Sentencing Project. Project. Retrieved 2008 from Ethnicity. The Sentencing Retrieved June 22, 2008 http://www lita t ian Details. aspx ?Publication I0=59 3 http://www..sentencingproject.orgjPub sentencingproject.org/Publication aspx?Publication D=593 Beh rens, A" llot Manipulation Manipula t ion and the the "Menace "Menace of Behrens, A., Uggen, Uggen, C. C. & Manza, J. (2003). Ba Ballot Domination": Racial Negro Domination": Racial Threat Threat and Felon Disenfranchisement Disenfranchisement in the the United States, 1850 2002. American American Journal Journal of of Sociology, Sociology, 109(3), 109(3), 559-605. Manza, J. & Uggen, (2002) . Democ ratic Contraction? Po litical Consequences of of Felo n Uggen, C. C. (2002). Democratic Contraction? Political Felon the United States. Stat es. American American Sociological Sociological Review, 67(6), Disenfranchisement Disenfranchisement in the 67(6), 777-803. Ochs, H. l. (2006). "Colorblind" Racial Co nsequences of H.L. "Colorblind" Policy in Black and White: Racial Consequences Disenfranc hisement Policy. The Policy Policy Studies Journal, 34(1), 34(1), 81-93. Disenfranchisement Studies Journal, the Barki ng Dog a Bite: Challenging Felon Handelsman, l. L. (2005). Giving the Barking Disenfranchisement Disenfranchisement Under the Voting Rights Act of of 1965. Fordham Under the Fordham Law Law Review, 73, 1875-1940. Shapiro, A. Cha llenging Criminal isement under the Voting Rights A. (1993) (1993).. Challenging Criminal Disenfranch Disenfranchisement under the Journal, 103(2), Act : A New Strategy. Act: Strategy. The Yale Law Journal, 103(2), 537-566. 537-566. Human Rights Watch Watch,, in association with Berkley-Tulane Berkley-Tulane Initiative on Vulnerable Vulnerable Popu lat ions. Populations. (2008). Targeting Blocks: Drug Law Enforcement Enforcement and Race in the the United Targeting Blacks: Drug Law and Race United States. New States. Fellner. York, NY: Jamie Fellner. 49 Conway, M.M., and Political M.M., Steuernagel, G.A. G.A. & Ahern, D.W. (2005). Women Women and Political Participation: Arena. Washington, Washington, D.C.: CQ Press. Participation: Cultural Cultural Change in the Political Political Arena. D.C.: CO. library and the the Vote. Washington, Washingt on, D.C. D.C. Library of Congress. (200S). (2008). Founding Founding Fathers Fathers and Retrieved August 24, 2008 from from http://memory.loc.gov/learn/features/e lection/vote rs. htm I. http://memory.loc.gov/learn/features/election/voters.html. Meierhoefer, B. Offender Characteristics Characteristics in Federal B. (1992). The Role of Offense Offense and Offender Sen tencing. Southern Southern California Law Review, Review, 66, 367-399. Sentencing. California Law United States Senate Judiciary Co mm ittee. (1982). Report Number 97-417. Committee. Report Number 97-417. Washington, Washington, D.C.: D.C: U.S. U.S. Congress, U.S. U.S. Senate. Senate.