The History of Black Disenfranchisement
Disenfranchisement laws are designed to punish those convicted of certain crimes, but what happens if it is implemented with malevolent, discriminatory intent? And what if it harshly affects one particular group of individuals? Justices of the United States Supreme Court grappled with these questions in deciding Hunter v. Underwood. In order to understand the case, one must journey back to Reconstruction in 1863-1877. During this time, Blacks were secured legal rights through constitutional amendments. However, these rights, especially their right to vote as outlined in the Fifteenth Amendment, were “flagrantly violated after 1877” (Couvares et al. 2000, 408). Voting restrictions were established such as the grandfather clause, allowing men to register to vote only if their ancestors had served in the military (Ray 1985). These voting rights violations were largely due to the lack of a modern bureaucratic machinery to oversee Southern affairs (Couvares et al. 2000). As a result, racism became further cemented in the nation’s culture and politics, especially in the South (Couvares et al. 2000). The courts were able to overturn outright racist voting restrictions, but invalidating criminal disenfranchisement as a method to limit Black votes proved more difficult to overturn even though it has had a disproportionate effect on the group (Ray 1985). Criminal disenfranchisement is protected by the United States Constitution but in Hunter v. Underwood, the Alabama provision that excluded criminals from voting was challenged on the basis that it was drafted with the intention to chiefly prevent Blacks from voting (Ray 1985).
Racist Intent and the Hunter v. Underwood Ruling
With Hunter v. Underwood, the Supreme Court invalidated Article VIII, Section 182, of the Alabama Constitution of 1901. Although the disenfranchisement law seemed constitutional at face, it was actually not. The Supreme Court ruling affirmed the judgment of the Court of Appeals that the “original enactment was motivated by a desire to discriminate against blacks on account of race” (Hunter v. Underwood 1985). The appellants demonstrated how convention officials during the Alabama Constitutional Convention in 1901 were committed to upholding white supremacy through their convention statements such as, “‘And what is it that we want to do? Why it is within the limits imposed by the Federal Constitution, to establish white supremacy in this State’” (Hunter v. Underwood 1985). Overt racist intent was thus explicitly used to draft the Alabama Constitutional provision, a critical factor the Court used to uphold their decision that it violated the Fourteenth Amendment (Hunter v. Underwood 1985).
Support and Changing Opposition
The decision was supported by all members of the Court, except for one Associate Justice who took no part in the consideration or decision of the case. Noteworthy proponents of the ruling include the National Association for the Advancement of Colored People (NAACP) and the NAACP Legal Defense and Educational Fund, Inc. (hereafter NAACP LDF). Both organizations filed amicus briefs and advanced the multifaceted argument that the constitutional provision was not race-neutral and that Alabama’s voting restrictions were racially discriminatory (Ray 1985). During the time of the case, explicit opponents were unclear, but as time and the political climate progressed, it is clear that many states, especially those in the South support criminal disenfranchisement, implying their opposition to the ruling. In fact, the NAACP LDF and other organizations continue to combat criminal disenfranchisement today by filing amicus briefs against Southern states such as Louisiana and Florida on the grounds that racial discrimination continues to be inherent in criminal disenfranchisement laws (The Sentencing Project, NAACP Legal Defense Fund, and the Southern Poverty Law Center 2017).
Widened Scope of Discretion and the Procedure
Although the ruling was a victory in combating a racist agenda, Hunter v. Underwood expanded the states’ scope of discretion regarding felon disenfranchisement by upholding the practice as constitutional and by providing states a method to circumvent invalidation. In particular, Hunter v. Underwood articulated a two-step procedure on how the Equal Protection Clause of the United States Constitution could be used as one of the methods for contesting disenfranchisement laws (Price 2003). The court found that laws in violation of the Equal Protection Clause must meet two factors: that the law was drafted with racially discriminatory intent and that the law has a disproportionate impact on a protected class (Price 2003, 381). Furthermore, the Court specified that the procedure of using the clause must also meet the requirement that the statute was passed with the sole intent to discriminate and that it would not have been passed except for that reason (Price 2003). In order to thus prove that a disenfranchisement law violates the Equal Protection clause of the Fourteenth Amendment, these two factors must be met: racially discriminatory intent and a disproportionate impact on a protected class. However, it is now difficult to determine the intention behind legislation because overt racially discriminatory language is no longer socially acceptable. The procedure needed to contest criminal disenfranchisement accordingly substantiates Turk’s resource conception of law. States are using the law for diversionary power: they are distracting the public from the injustice of felon disenfranchisement by solely focusing on the law. This allows states to constitutionally bar convicted felons from voting even if it has the “primary effect of preventing blacks from voting” (Ray 1985, 275). Essentially, the ruling inadvertently set a standard to which states could use as a guide to continue to implement discriminatory disenfranchisement laws. Hunter v. Underwood thereby intends to invalidate only disenfranchisement laws that meet this procedure.
A Return to the Courts: Discriminatory Revision, Blanketing, and Stringent Enforcement
The passing of time, events, and the significance of one occurrence of unconstitutional criminal disenfranchisement in relation to Hunter v. Underwood was considered in Johnson v. Governor of State of Florida and in Hayden v. Pataki. In Johnson, the United States Court of Appeals of the Eleventh Circuit ruled that a Florida felon disenfranchisement law did not violate the Fourteenth Amendment because the law had been revised from its discriminatory adoption in 1868 (Johnson v. Governor of State of Florida 2005). They confronted the question whether a legislative reenactment of a law can remove the taint from a law that was originally passed with the intent to discriminate (Johnson v. Governor of State of Florida 2005). The judges ultimately ruled that because the felon disenfranchisement provision of 1968 was not passed with discriminatory intent (Johnson v. Governor of State of Florida 2005), it did not meet the first factor of the two-step test and thus did not violate the Fourteenth Amendment or any other law, for that matter. The judge used evidence such as the Minutes of the Suffrage and Elections Committee of the Florida Constitution Revision Commission, where there was no record of discriminatory intent. With Hayden, the United States Court of Appeals of the Second Circuit ruled that a New York state law disenfranchising felons in prison and on parole was also constitutional, but the judges used a distinct approach to explain Hunter v. Underwood. They claimed that the case was only an isolated instance of unconstitutional felon disenfranchisement because it was enacted with discriminatory intent and that it should not be extended to argue against the invalidation of all felon disenfranchisement (Hayden v. Pataki 2006). Consequently, the ruling on Johnson v. Governor of State of Florida affected the implementation of the two-step procedure by establishing that legislative changes to the statute would be legally sufficient to remove an earlier discriminatory intent (Johnson v. Governor of State of Florida 2005). In addition, Hayden v. Pataki affected the implementation of the court ruling by demeaning its significance in the larger argument of felon disenfranchisement and its undue impact.
Most courts stringently enforce the Hunter ruling (particularly the procedure outlined above) only when the case meets the court’s high standard of proving discriminatory intent. In the Supreme Court case of United States v. Armstrong, individuals challenged federal prosecution claiming they were selected because they were Black. The plaintiffs used Hunter v. Underwood as evidence for their argument stating they are not required to show the “failure of prosecution for other similarly situated individuals” (United States v. Armstrong 1996). The Supreme Court dismissed the case on the notion that the case did not meet the equal protection principles, “including the similarly situated requirement” (United States v. Armstrong 1996). More importantly, in Baker v. Pataki, plaintiffs argued that a New York state felon disenfranchisement statute was unconstitutional for violating the Equal Protection Clause of the Fourteenth Amendment, as outlined in Hunter (Baker v. Pataki 1996). The Second Circuit allowed the plaintiffs to try to prove the high standard of racial discriminatory intent, but the judges were divided on whether the Voting Rights Act covered felon disenfranchisement and ultimately affirmed the decision of the lower court that the statute was not unconstitutional on either grounds (Liles 2007). In both cases, the plaintiffs could not meet the court’s strict requirements enforced by Hunter. The latter case, in particular, did not meet the guidelines of the Equal Protection Clause procedure to challenge the felon disenfranchisement statute (Liles 2007). By enforcing Hunter very rigidly, the courts destroy the possibility of using the ruling to call into question racially discriminatory practices and laws, especially felon disenfranchisement provisions. It thereby becomes almost impossible to use Hunter because the standards are unfeasible and based on the notion that you must meet not one, but the two standards set in the procedure.
Ineffectiveness of Hunter and the Future of Felon Disenfranchisement
The ruling on Hunter v. Underwood is thus not effective in combating discriminatory legislation, especially criminal disenfranchisement. In fact, scholars note how surprising it is that the case has not “paved the way for similarly successful suits alleging other states’” criminal disenfranchisement provisions as unconstitutional (Shapiro 1993, 543). They even go as far as to claim that the “significance of this legislation for race-based challenges to criminal disenfranchisement…has been almost completely unrealized” (Shapiro 1993, 543). This inadequacy is due to how the ruling is only effective on statutes that meet its aim: to invalidate legislation that conveys overt racial discrimination in the legislation’s intentions during the enactment of the statute (Liles 2007). But even then, a law may still be considered constitutional if there has been remedial legislation to show that intentional discrimination no longer exists (Liles 2007). Therefore, a “facial challenge to felony disenfranchisement law” using the Equal Protection Clause is unlikely to be successful unless it specifically meets the racial discrimination of the enactment (Liles 2007, 624). The emphasis on the enactment of such legislation thus dismisses the disproportionate impact as insufficient evidence to render invalid criminal disenfranchisement laws. This is despite the fact that 6.1 million Americans cannot vote because of felony convictions where 1 in every 13 Blacks has lost their voting rights because of felon disenfranchisement statutes versus 1 in every 56 non-Black voters (Chung 2016). Consequently, laws without intentional discrimination will always be constitutional under the Equal Protection Clause.
Equal protection arguments will likely always be unsuccessful in combating criminal disenfranchisement laws. This then begs the question: what can be done to challenge criminal disenfranchisement laws? Some scholars argue that a new strategy is challenging these laws under the Voting Rights Act (VRA). With the VRA, the proof of discriminatory intent was not required to prove a violation of the legislation (Shapiro 1993), misleading scholars to support the VRA as an improved method to circumvent the intent standard defined in Hunter. However, even with the VRA, using the courts to challenge these laws still proves unsuccessful because the Supreme Court has denied using the VRA on the grounds that Congress never explicitly stated the legislation applies to felon disenfranchisement (Liles 2007). Moreover, circuit courts have perpetuated an unpredictable nature through inconsistent application of the VRA (Liles 2007). Most significantly, no felon disenfranchisement law has been deemed unconstitutional under the VRA (Liles 2007). I therefore propose for the complete abolishment of felony disenfranchisement. To support this, studies have shown that these policies more than likely affected the presidential outcome between Al Gore and Bush and that had disenfranchised voters been allowed to vote, “Bush’s narrow victory ‘would almost certainly have been reversed’” (Chung 2016). Furthermore, studies have demonstrated that these policies disproportionately affect people of color. In conclusion, because the constitutionality of these laws has not been settled in multiple levels of court, I propose the best way to abolish felon disenfranchisement is to go through Congress to bring about legislative change (Liles 2007). This reform proposal can be accomplished by mobilizing constituent support and by supporting lobbying groups that are already established in the cause. It is necessary to eventually face Congress because of the fragmented power among states; a federal law would ensure more consistency and effectiveness than each state abolishing felon disenfranchisement on their own accord. In order to pass such legislation, bipartisan support is required to pass both chambers of Congress, however, this is extremely difficult given that some representatives may only agree to support it if a compromise is reached or may not support it, citing their constituents’ objections. Going through Congress and facing difficulties is inevitable and reforming such an issue may even seem unrealistic but it is time for the United States to uphold its democratic values we so highly regard and give members of our society a second chance.
References
“Amicus Brief in Vote v. Louisiana, Louisiana Felony Disenfranchisement Case.” November 7, 2017. http://www.sentencingproject.org/publications/vote-v-louisiana/ (Accessed November 29, 2017).
Baker v. Pataki. 1996. 85 F.3d 919.
Chung, Jean. 2016. “Felony Disenfranchisement: A Primer.” May 10. http://www.sentencingproject.org/publications/felony-disenfranchisement-a-primer/ (Accessed November 3, 2017).
Foner, Eric. 2000. “Reconstruction: Change or Stasis?” In Interpretations of American History: Patterns and Perspectives, eds. Francis G. Couvares, Martha Saxton, Gerald N. Grob, and George Athan Billias. New York, NY: The Free Press.
Hayden v. Pataki. 2006. 449 F.3d 305.
Hunter v. Underwood. 1985. 471 U.S. 222.
Johnson v. Governor of State of Florida. 2005. 405 F.3d 1214.
Liles, W. William. 2007. “Challenges to Felony Disenfranchisement Laws: Past, Present, and Future.” Alabama Law Review 58. http://heinonline.org/HOL/Page?handle=hein.journals/bamalr58&g_sent=1&casa_token=&collection=journals&id=483 (Accessed November 3, 2017).
Price, J. Martine. 2003. “Addressing Ex-Felon Disenfranchisement: Legislation vs. Litigation.” Journal of Law and Policy. http://brooklynworks.brooklaw.edu/jlp/vol11/iss1/7. (Accessed September 22, 2017).
Reynolds, Ray. 1985. “Can Those Convicted of Misdemeanors Be Prevented from Voting?” Preview of United States Supreme Court Cases. (12): 275-276.
Shapiro, L. Andrew. 1993. “Challenging Criminal Disenfranchisement under the Voting Rights Act: A New Strategy.” The Yale Law Journal 103 (2). http://www.jstor.org/stable/797104 (Accessed November 3, 2017).
Turk, Austin T. 2004. “Law as a Weapon in Social Conflict.” In Social Organization of Law: Introductory Readings, ed. Austin Sarat. Los Angeles: Roxbury Publishing Company, 43-48.
United States v. Armstrong. 1996. 517 U.S. 456.
foundations of law and society 