A Constitutional Case Against Felony Disenfranchisement Laws

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In the movie “Lincoln”, there’s a scene where “Radical” Republicans are debating Democrats in congressional chambers over whether to abolish slavery with a new constitutional amendment. A speaker from the Democratic Party, arguing against abolition, delivers a rousing speech about how Negroes shouldn’t be emancipated because of the slippery slope of freedom. Once Negroes have freedom, he argued, then they’ll want the right to vote—the prospect of which caused a riotous but bipartisan chorus of disagreement from most of Congress. The bellowing response was only outdone by an even more clamorous round of disapproving shouts when the speaker mentioned giving women the franchise.

Not far from the D.C. setting of that congressional debate was the Confederate Army and government, set up in Richmond, Va., where there was no disagreement about whether black people should have freedom or the right to vote. They, of course, ultimately lost the war and their cause, and were eventually allowed into what we now call the United States. Re-entry into society for Virginia and the Southern states meant adopting new constitutions ridden of any slavery talk, but they were clear back then about not giving black people any political power. And here’s where it gets hairy.

As Virginia tried to patch together new versions of its state constitution from 1867 into the new century, it undoubtedly added amendments that robbed African Americans of their voting rights. One notable amendment, from 1876, added petty larceny to the list of felony offenses that would prevent someone from voting, because it was a crime most attributed to black people, according to scholars. It was Virginia’s way of disenfranchising black people without stating it explicitly in the law.

More evidence: The 1901 Virginia Constitutional Convention featured a delegate Walter Watson who stated that the “great underlying principle of this Convention movement , the one object and cause which assembled this body, was the elimination of the negro from the politics of the state.” And that was not, by far, an isolated or anomalous sentiment at the Convention.

Today, Virginia’s felony disenfranchisement law—formed, in part, during that notorious time period—is being challenged by Sa’ad El-Amin, a former Richmond city council member, before he was convicted of felony tax evasion. As I reported in October, El-Amin is suing the state in U.S. District Court, not to have his own rights restored, but to have the felony disenfranchisement law struck as unconstitutional for violating equal protection, due process and cruel and unusual punishment clauses.

Virginia tried to have the case dismissed, perhaps too eagerly since it mucked up much of its clearly racist past in the filing. But a federal judge refused the state’s wishes, and in fact summoned a legal analysis from William and Mary Law School to see just how strong the case is.

That analysis was filed this week. The conclusion: El-Amin doesn’t have a strong case in terms of equal protection on the basis of race, but they found a quite formidable case to be made on denial of due process. As the law currently stands, people with felony convictions are permanently barred from voting unless they apply to the governor for restoration. But if there is any criteria the governor uses to determine whose rights he’ll restore or not, no one other than him knows it. According to the amicus brief filed by William and Mary, that makes the law a violation of due process rights.

The brief reads:

“Under Virginia’s current procedures, citizens who have completed their sentences are deprived of the right to a fair, objective, and transparent determination on the restoration of their rights. This deprivation cannot be justified based either on the Governor’s broad clemency powers or the extent of the state’s interest. …

“[F]elons who have completed their sentences have a liberty interest in knowing what must be done to be deemed fit to exercise the franchise and having that determination made fairly and objectively through a transparent process. In the present case, depriving citizens who have completed their sentences of a fair, objective, and transparent process is a severe deprivation. Although the right to vote is not necessary to live, the interest indirectly implicated is full citizenship and the opportunity to reintegrate into society. … One can scarcely imagine a more important right.”

William and Mary didn’t find a good equal protection clause claim based on race, because the state’s felon law was passed in 1830, and the petty larceny clause targeted at black felons was stripped out in 1971. But they did spot an equal protection case based on place of felony conviction—an argument that might be helped along by a separate court victory scored by President Obama’s campaign in this year’s election.

People convicted of felonies in Virginia are banned from voting, but those who live in Virginia and were convicted in other states are not banned. The result is an uneven application of the law, which William and Mary finds unconstitutional. As they wrote in their brief:

“The ability to have rights restored automatically in another state and then transfer that to voter eligibility in Virginia is problematic for equal protection validity. Two citizens who have completed their sentences after having committed the same crime are subject to different standards in re-establishing their right to vote depending on the situs of their convictions. It is difficult to imagine a legitimate rational basis the state could provide to justify this unequal result.”

The Obama campaign won in court on this argument in October when it sued Ohio [Secretary of State Jon Husted]() over early voting hours. As we reported, Husted tried to change the laws so that only military members could vote on the weekend before Election Day, but not regular, non-military citizens (which in effect would have wiped out the “Souls to the Polls” campaign that famously draws abnormally high black voter traffic). The Obama campaign sued Husted so that all Ohio citizens could vote early that weekend and a judge ruled in their favor, on equal protection clause grounds, saying that all voters must be treated the same. Ironically, this was the same decision used by a judge in 2000, in the Bush v Gore lawsuit in Florida that effectively ended the vote recounts and awarded Bush the presidency.

Whether this argument is enough to sway the U.S. District Court judge in Virginia remains to be seen. The legal brief was prepared by third-year students at William and Mary Law School neither as a friend to the plaintiff El-Amin nor the defendant, the state of Virginia. It was meant as an objective analysis, as called for by the judge.

Ultimately, a full hearing and ruling that the law is unconstitutional would make it tough for felony disenfranchisement laws to continue in current form in any state. Though to be clear, the William and Mary brief is not arguing that felony disenfranchisement is unconstitutional, only that formerly incarcerated people deserve the right to a hearing to appeal for rights restoration.

If the law is upheld, or the case is dismissed, it just means that civil rights advocates will continue fighting it, perhaps looking for a legislative fix. With over 350,000 Virginians disenfranchised due to felonies, most of them African-Americans, this case is one worth following. These citizens deserve the same opportunity for re-entry into society that the Confederate states were given after losing the Civil War.