Constitution Daily

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Felons and the right to vote

May 2, 2016 by Nicandro Iannacci


(credit: Kate Wellington)
(credit: Kate Wellington)

On April 22, Virginia Governor Terry McAuliffe ordered the restoration of voting rights for more than 200,000 citizens with past criminal convictions, drawing attention to a growing national issue.

The governor’s executive order, announced on the steps of the Virginia state capitol, applies to all violent and nonviolent offenders who had served their full prison sentence and completed parole or probation prior to the order. Although previous governors have restored voting rights to particular individuals, McAuliffe is the first to do so for an entire class of people.

In a post on Medium, McAuliffe acknowledged Virginia’s history of racism—powerfully epitomized and enforced by a 1902 “Jim Crow” constitution that included poll taxes, literacy tests, and greater restrictions on felon voting rights—and cast his order as a moment of redemption and progress. “If we are going to build a stronger Virginia, we must open doors to participation in civic life for people who return to society seeking a second chance,” he writes. “I believe it is time to cast off Virginia’s troubling history of injustice and embrace an honest, clean process for restoring the rights of these men and women.”

In another sign of the nation’s polarized politics, Republicans in the state expressed sympathy for the goal of reintegrating prisoners into society but criticized the move as motivated by close ties to the Clinton family. “The singular purpose of Terry McAuliffe’s governorship is to elect Hillary Clinton president of the United States,” said William Howell, Virginia Speaker of the House. Ed Gillespie, former chairman of the Republican National Committee, said he believes in “redemption and reconciliation” but that McAuliffe’s order was “a reckless abuse of executive power.”

Regardless of intentions, McAuliffe believes he stands on solid constitutional ground. Article V, Section 12 of the Virginia state constitution states that the governor’s clemency power includes the ability “to grant reprieves and pardons after conviction” and “to remove political disabilities consequent upon conviction.” A.E. Dick Howard, professor at the University of Virginia School of Law and past speaker at the National Constitution Center, said “there is simply no question” about the governor’s authority to restore voting rights to a large group. Still, legal challenges may be forthcoming.

According to the Sentencing Project, more than 5.8 million U.S. citizens with past criminal convictions are unable to vote, including more than 2.2 million African Americans. Only two states—Vermont and Maine—have no restrictions on voting rights; after the April 22 order, Kentucky, Florida, and Iowa are now the only states with permanent felon disenfranchisement. Most are somewhere in between.

Although the right to vote is not explicitly enumerated in the text of the U.S. Constitution, it appears in five separate places: the 14th Amendment, the 15th Amendment, the 19th Amendment, the 24th Amendment and the 26th Amendment. According to Roger Pilon of the Cato Institute, “it’s so implicit as to be all but explicit.”

Nevertheless, constitutional challenges to restrictions on voting rights for convicted felons have been unsuccessful. In Richardson v. Ramirez (1974), felons argued that such restrictions violate equal protection rights, but the U.S. Supreme Court held that Section 2 of the 14th Amendment gives “affirmative sanction” to those rules. In Hunter v. Underwood (1985), the Court did strike down restrictions that are the result of “purposeful racial discrimination,” but most limits on felon voting rights have withstood scrutiny.

It’s not likely that courts will settle the debate over felon voting rights anytime soon. But the recent news out of Virginia may prove to be a turning point in the ongoing political fight.

Nicandro Iannacci is a web content strategist at the National Constitution Center.

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