SPEAKERS       CONTENTS       INSERTS    
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62–486

2000
CIVIC PARTICIPATION AND
REHABILITATION ACT OF 1999

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

FIRST SESSION

ON
H.R. 906

OCTOBER 21, 1999

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Serial No. 11

Printed for the use of the Committee on the Judiciary

For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402

COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
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MARY BONO, California
SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
DAVID VITTER, Louisiana

JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York

THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director

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Subcommittee on the Constitution
CHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, Illinois
ASA HUTCHINSON, Arkansas
SPENCER BACHUS, Alabama
BOB GOODLATTE, Virginia
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
LINDSEY O. GRAHAM, South Carolina

MELVIN L. WATT, North Carolina
MAXINE WATERS, California
BARNEY FRANK, Massachusetts
JOHN CONYERS, Jr., Michigan
JERROLD NADLER, New York

CATHLEEN CLEAVER, Chief Counsel
BRADLEY S. CLANTON, Counsel
JONATHAN A. VOGEL, Counsel
PAUL B. TAYLOR, Counsel

C O N T E N T S

HEARING DATE
    October 21, 1999
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TEXT OF BILL

    H.R. 906

OPENING STATEMENT

    Canady, Hon. Charles T., a Representative in Congress from the State of Florida, and chairman, Subcommittee on the Constitution

WITNESSES

    Clegg, Roger, Vice President and General Counsel, Center for Equal Opportunity

    Davis, Hon. Danny K., a Representative in Congress from the State of Illinois

    Dinh, Viet D., Associate Professor of Law and Deputy Director of Asian Law and Policy Studies Program, Georgetown University Law Center

    Gaziano, Todd F., Senior Fellow in Legal Studies, The Heritage Foundation

    Mauer, Marc, Assistant Director, The Sentencing Project

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    Metzger, Gillian E., Staff Attorney, Brennan Center for Justice at NYU School of Law

    Shelton, Hilary O., Director to the Washington Bureau of the National Association for the Advancement of Colored People

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Clegg, Roger, Vice President and General Counsel, Center for Equal Opportunity: Prepared statement

    Davis, Hon. Danny K., a Representative in Congress from the State of Illinois: Prepared statement

    Dinh, Viet D., Associate Professor of Law and Deputy Director of Asian Law and Policy Studies Program, Georgetown University Law Center: Prepared statement

    Gaziano, Todd F., Senior Fellow in Legal Studies, The Heritage Foundation: Prepared statement

    Mauer, Marc, Assistant Director, The Sentencing Project: Prepared statement

    Metzger, Gillian E., Staff Attorney, Brennan Center for Justice at NYU School of Law: Prepared statement
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    Shelton, Hilary O., Director to the Washington Bureau of the National Association for the Advancement of Colored People: Prepared statement

APPENDIX
    Material submitted for the record

CIVIC PARTICIPATION AND REHABILITATION ACT OF 1999

THURSDAY, OCTOBER 21, 1999

House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.

    The subcommittee met, pursuant to call, at 9:30 a.m., in Room 2237, Rayburn House Office Building, Hon. Charles Canady [chairman of the subcommittee] presiding.

    Present: Representatives Charles T. Canady, Bob Barr, Melvin L. Watt, John Conyers, Jr.

    Also present: Representative Robert C. Scott.

    Staff present: Bradley S. Clanton, Counsel; Jonathan A. Vogel, Counsel; Susana Gutierrez, Clerk; Anthony Foxx, Minority Counsel; and Keenan Keller, Minority Counsel.
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OPENING STATEMENT OF CHAIRMAN CANADY

    Mr. CANADY. The subcommittee will be in order.

    This morning the Subcommittee on the Constitution convenes to hear testimony on legislation introduced by Mr. Conyers, H.R. 906, the Civic Participation and Rehabilitation Act of 1999. The heart of Mr. Conyers' legislation is found in section 3 of the bill, which I will read: ''The right of an individual who is a citizen of the United States to vote in any election for Federal office shall not be denied or abridged because that individual has been convicted of a criminal offense unless such individual is serving a felony sentence in a correctional institution or facility at the time of the election.''

    I would like to make two brief observations about this legislation and the subject on which it touches. First, I am sympathetic to the policy position that ordinary offenders who have served their sentences should not be permanently barred from participation in the political system as voters. That is my basic policy outlook on this overall question.

    The second point is, however, this: I believe that there are serious constitutional issues regarding legislation such as H.R. 906; and whatever we may believe concerning the policy issues involved, I think it is incumbent upon us, particularly as members of the Constitution Subcommittee, to reach satisfactory conclusions concerning the constitutional issues before any legislative action is taken on such legislation.

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    [The bill, H.R. 906, follows:]

106TH CONGRESS
    1ST SESSION
  H. R. 906

To secure the Federal voting rights of persons who have been released from incarceration.
     
IN THE HOUSE OF REPRESENTATIVES
MARCH 2, 1999
Mr. CONYERS (for himself, Mr. FROST, Mr. RANGEL, Ms. JACKSON-LEE of Texas, Mr. MEEHAN, Ms. WATERS, Mr. CLYBURN, Mr. LEWIS of Georgia, Mrs. MEEK of Florida, Mr. DAVIS of Illinois, Mr. BROWN of Ohio, Mr. MEEKS of New York, Mr. THOMPSON of Mississippi, Mr. RUSH, Mr. OWENS, Ms. KILPATRICK, Mr. WYNN, Mr. JACKSON of Illinois, Mr. HASTINGS of Florida, Mr. FATTAH, Ms. LEE, Mr. CUMMINGS, Mr. HILLIARD, Mr. BRADY of Pennsylvania, Mr. FORD, Mrs. JONES of Ohio, and Ms. SCHAKOWSKY)
introduced the following bill; which was referred to the Committee on the Judiciary
     
A BILL
To secure the Federal voting rights of persons who have been released from incarceration.
    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
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    This Act may be cited as the ''Civic Participation and Rehabilitation Act of 1999''.
SEC. 2. FINDINGS.
    The Congress makes the following findings:
    (1) The right to vote is the most basic constitutive act of citizenship and regaining the right to vote reintegrates offenders into free society. The right to vote may not be abridged or denied by the United States or by any State on account of race, color, gender or previous condition of servitude. Basic constitutional principles of fairness and equal protection require an equal opportunity for Americans to vote in Federal elections. Congress has ultimate supervisory power over Federal elections, an authority which has repeatedly been upheld by the Supreme Court.
    (2) Congress finds three areas where discrepancies in State laws regarding felony convictions lead to unfairness in Federal elections: (A) there is no uniform standard for voting in Federal elections which leads to an unfair disparity and unequal participation in Federal elections based solely on where a person lives; (B) laws governing the restoration of voting rights after a felony conviction are unequal throughout the country and persons in some States can easily regain their voting rights while in other States persons effectively lose their right to vote permanently; and (C) State disenfranchisement laws disproportionately impact ethnic minorities.
    (3) Although State law determines the qualifications for voting, Congress must ensure that those laws are in accordance with the Constitution. Current laws vary throughout the country resulting in discrepancies regarding which citizens may vote in Federal elections.
    (4) An estimated 3,900,000 Americans, or one in fifty adults, currently cannot vote as a result of a felony conviction. Women represent about a half million of this total. Disenfranchisement results from varying State laws that restrict voting while under some form of criminal justice supervision or after the completion of a felony sentence in some States. Four States do not disenfranchise felons at all (Maine, Massachusetts, New Hampshire, and Vermont). Forty-six States and the District of Columbia have disenfranchisement laws that deprive convicted offenders of the right to vote while they are in prison. In thirty-two States, convicted offenders may not vote while they are on parole and in twenty-nine States probationers may not vote. Fourteen States disenfranchise ex-offenders who have fully served their sentences, regardless of the nature or seriousness of the offense. Three-fourths (73%) of the 3,900,000 disqualified voters are not in prison, but are on probation, parole or are ex-offenders.
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    (5) In those States that disenfranchise ex-offenders, the right to vote can be regained in theory, but in practice this possibility is often illusory. In eight States, a pardon or order from the Governor is required. In two States, ex-offenders must obtain action by the parole or pardon board. Offenders convicted of a Federal offense often have additional barriers to regaining voting rights. In at least 16 States, Federal offenders cannot use the State procedure for restoring their civil rights. The only method provided by Federal law for restoring voting rights to ex-offenders is a Presidential pardon. Few persons who seek to have their right to vote restored have the financial and political resources needed to succeed.
    (6) Thirteen percent of the African American adult male population, or 1,400,000 African American men, are disenfranchised. Given current rates of incarceration, three in ten of the next generation of black men will be disenfranchised at some point during their lifetime. Hispanic citizens are also disproportionately disenfranchised since they are disproportionately represented in the criminal justice system.
    (7) These discrepancies should be addressed by Congress. Basic concepts of fundamental fairness and equal protection require an equal opportunity for Americans to vote in Federal elections. This Act will restore fairness in the Federal election process and promote reintegration of former offenders into a life as law abiding citizens of the United States.
SEC. 3. RIGHTS OF CITIZENS.
    The right of an individual who is a citizen of the United States to vote in any election for Federal office shall not be denied or abridged because that individual has been convicted of a criminal offense unless such individual is serving a felony sentence in a correctional institution or facility at the time of the election.
SEC. 4. ENFORCEMENT.
    (a) ATTORNEY GENERAL.—The Attorney General may, in a civil action, obtain such declaratory or injunctive relief as is necessary to remedy a violation of this Act.
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    (b) PRIVATE RIGHT OF ACTION.—
    (1) A person who is aggrieved by a violation of this Act may provide written notice of the violation to the chief election official of the State involved.
    (2) Except as provided in paragraph (3), if the violation is not corrected within 90 days after receipt of a notice under paragraph (1), or within 20 days after receipt of the notice if the violation occurred within 120 days before the date of an election for Federal office, the aggrieved person may, in a civil action obtain declaratory or injunctive relief with respect to the violation.
    (3) If the violation occurred within 30 days before the date of an election for Federal office, the aggrieved person need not provide notice to the chief election official of the State under paragraph (1) before bringing a civil action to obtain declaratory or injunctive relief with respect to the violation.
SEC. 5. DEFINITIONS.
    For purposes of this Act—
    (1) the term ''correctional institution or facility'' means any prison, penitentiary, jail, or other institution or facility for the confinement of individuals convicted of criminal offenses, whether publicly or privately operated, except that such term does not include any residential community treatment center (or similar public or private facility);
    (2) the term ''election'' means—
    (A) a general, special, primary, or runoff election;
    (B) a convention or caucus of a political party held to nominate a candidate;
    (C) a primary election held for the selection of delegates to a national nominating convention of a political party; or
    (D) a primary election held for the expression of a preference for the nomination of persons for election to the office of President; and
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    (3) the term ''Federal office'' means the office of President or Vice President of the United States, or of Senator or Representative in, or Delegate or Resident Commissioner to, the Congress of the United States.
SEC. 6. RELATION TO OTHER LAWS.
    (a) Nothing in this Act shall be construed to prohibit the States enacting any State law which affords the right to vote in any election for Federal office on terms less restrictive than those established by this Act.
    (b) The rights and remedies established by this Act are in addition to all other rights and remedies provided by law, and neither rights and remedies established by this Act shall supersede, restrict, or limit the application of the Voting Rights Act of 1965 (42 U.S.C. 1973 et seq.) or the National Voter Registration Act (42 U.S.C. 1973–gg).

    Mr. CANADY. With that very brief introduction, I think we can move on with the statements by other Members.

    And I will now recognize Mr. Watt.

    Mr. WATT. Thank you, Mr. Chairman. And I want to thank the Chairman for having this hearing and convening the hearing. I can't say that I disagree substantially with what the Chairman has said. From a policy perspective, clearly once a person has served their time, paid their debt for whatever offense they committed, their constitutional rights should be restored, and I fully support that.

    I share that there are some constitutional concerns about the extent to which we can do that at the Federal level. And consistent with that, I think it is our responsibility to determine what those constitutional constraints are and push to the limit of those constitutional constraints at the Federal level to accomplish whatever purposes we can accomplish and to set a tone for the States, in hopes that they will follow our policy objective.
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    We do that in a number of areas, and this would not be unprecedented. So I don't think that the fact that there are constitutional issues and concerns, legitimate constitutional concerns being expressed at the Federal level, leads us to the conclusion or should lead us to the conclusion that we should sit on our hands and do nothing.

    And if we agree on what those constitutional concerns are, agree on what we can do, and act within that framework to accomplish what we can do and draw legislation consistent with that purpose, whether it is Mr. Conyers' legislation or something short of that, I think it is our responsibility to do it; and I would be fully supportive of that. And I hope implicit in the Chairman's comments was a commitment to that generalized objective and that his exception to his policy statement doesn't overtake the policy statement itself; and if that is where he is on this issue, then I think we are absolutely consistent with each other.

    I thank the gentleman for convening the hearing, and I yield back.

    Mr. CANADY. Thank you, Mr. Watt.

    We are now going to go—I am not ignoring Mr. Scott, but he is not a member of the subcommittee.

    Mr. WATT. He is an emeritus member, an honorary member of this subcommittee.

    Mr. CANADY. He is not a member of this subcommittee, we are always glad to have his attendance.
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    We are now going to go to our first panel on which we will hear from a Member of the House—the Honorable Danny K. Davis, who represents the 7th District of Illinois. Representative Davis was elected to Congress in 1996 and sits on the Committees on Government Reform and Oversight and Small Business. Prior to his election, Representative Davis served on the Cook County Board of Commissioners from 1990 to 1996, as well as serving for 11 years as a member of the Chicago City Council as the alderman for the 29th Ward.

    Representative Davis has legislation that deals with this general area although as I understand his legislation goes further than Mr. Conyers' legislation in that it would affect not only participation in Federal elections but participation in State elections as well.

    I now recognize Representative Davis. We appreciate your being with us this morning.

STATEMENT OF HON. DANNY K. DAVIS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS

    Mr. DAVIS. Thank you very much, Mr. Chairman. I want to thank you and members of the subcommittee for the opportunity to testify on such an important issue. The question before us today tugs at the heart of our democracy, and should stir the conscience of the nation.

    The question is whether ex-felons should be given the right to vote in Federal elections after they have served their sentences. I believe that they should and, therefore, support Representative John Conyers' legislation, H.R. 906, that would restore the right to vote in Federal elections to ex-felons.
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    Our Nation was founded on supposedly democratic principles. The forefathers of this Nation penned a great document called the Declaration of Independence; and in that document, it's proclaimed that all men were created equal and entitled to certain unalienable rights, meaning rights not to be separated, given away or taken away, but yet slavery was allowed to exist and women were not treated equally. We fought a bloody Civil War over slavery, and still there is a sense that remnants of slavery remain.

    The right to vote must be intertwined with the Declaration of Independence and the Constitution. It is one of the most basic and fundamental rights of citizenship in a democracy. To deny the ballot box to individuals who have paid their debt to society is akin to rendering them voiceless in their own homes. Disenfranchisement laws are a vestige of medieval times when offenders were banished from the community and suffered what is likened to silver death.

    Brought from Europe to the colonies, they gained new political importance at the end of the 19th century, but many southern States revisited them as a way to exclude blacks from the vote. The fact that we legally denied the right to vote after they have served their time is indeed troubling. In 46 States and in the District of Columbia, criminal disfranchisement law denies the right to vote to all convicted adults in prison. Thirty-two States also disenfranchise felons on parole. Twenty-nine disenfranchise those on probation and 14 States permanently disenfranchise ex-offenders who have fully served their sentences.

    Currently, an estimated 3.9 million United States citizens are disenfranchised including over 1 million who have completed their sentences. Implementation of these laws have had tremendous impact on African American males. Thirteen percent of African American men or 1.4 million are disenfranchised. Of that number, 440,000 have completed their sentences and paid their debt to society.
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    The report issued by the Sentencing Project in conjunction with Human Rights Watch, revealed that in Alabama and in Florida, 31 percent of all black men are permanently disenfranchised; quite unbelievable. In Iowa, Mississippi, New Mexico, Virginia, and Wyoming, 1 in 4 or 24 to 28 percent of black men are permanently disenfranchised. In Delaware and Texas, 1 in 5 or 20 percent are permanently disenfranchised. And black men represent less than 6 percent of the total population in this country.

    Clearly this is more than a black issue. This is a human rights issue. This is a test of democracy, and this is an American issue. It is clear that blacks are disproportionately affected by these laws. An unacceptable trend is continuing in our Nation with respect to prisons. We have what some have described as a prison industrial complex mentality, a new growth industry, a lock them up and throw away the key and deny them the right to vote when they get out.

    The impact of drugs, unemployment, and antiquated sentencing laws have our prisons bursting at the seams. And in the past 12 years, the number of Americans in jails and in prisons has doubled; and I suspect that the number will continue to rise. Disenfranchisement laws are inconsistent with democratic principles.

    With the Conyers' bill, though, we have a unique opportunity to move from the dark ages to the light of a new sense of democracy and belonging for individuals who have paid their debt to society. If we are to live as an enlightened nation, then we must not only talk rehabilitation and reclamation but we must practice it as well. Moreover, rehabilitation and reclamation must not only include helping ex-felons get jobs and a place to live once they are out, but it must include encouraging and providing them opportunities to experience full citizenship including the right to vote.
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    And finally, those who will argue against this bill, I ask what will America gain by denying ex-felons the right to experience the fullness of this great democracy? Are we saying that the prodigal son or daughter can never come home and be accepted as a full member of the family? Is that the standard we want for our Nation? I should hope not.

    And so, Mr. Chairman, I urge, I implore, I importune this honorable committee to look favorably upon the Conyers' bill and help make democracy and the right to participate in it available to all of our law abiding citizens.

    I thank the Chair, and I appreciate the opportunity to testify.

    Mr. CANADY. Representative Davis, we very much appreciate your being with us here this morning. It is not our custom to ask questions of Members, unless there is someone who has a burning desire to do so.

    So we thank you for being with us.

    [The prepared statement of Representative Davis follows:]

PREPARED STATEMENT OF HON. DANNY K. DAVIS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS

    Mr. Chairman, and Members of the Subcommittee I want to thank you for the opportunity to testify on such an important issue. The question before us today tugs at the heart of our democracy and stirs the conscience of the nation. The question is whether ex-felons should be given the right to vote in federal elections after they have served their sentences. I believe they should. Therefore, I support Representative Conyers legislation H.R. 906, that would restore the right to vote in federal elections to ex-felons.
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    Our nation was founded on supposedly democratic principles. The forefathers of this nation pinned a great document called the Declaration of Independence, in that document they proclaimed that all men were created equal, and entitled to certain unalienable rights. But yet slavery was allowed to exist and women were not treated equal. We fought a bloody Civil War over slavery and still there is a sense that remnants of slavery remain. The right to vote must be intertwined with the Declaration of Independence and the Constitution. It is one of the most basic and fundamental rights of citizenship in a democracy. To deny the ballot box to individuals who have paid their debt to society is akin to rendering them voiceless in their own home.

    Disenfranchisement laws are a vestige of medieval times when offenders were banished from the community and suffered what is likened to civil death. Brought from Europe to the colonies, they gained new political importance at the end of the 19th Century, when many Southern states revisited them as a way to exclude blacks from the vote. The fact that we legally deny people the right to vote after they have served their time is indeed troubling.

    In forty-six states and the District of Columbia, criminal disenfranchisement laws deny the vote to all convicted adults in prison. Thirty-two states also disenfranchise felons on parole; twenty-nine disenfranchise those on probation. And fourteen states permanently disenfranchise ex-offenders who have fully served their sentences. Currently, an estimated 3.9 million U.S. citizens are disenfranchised, including over 1 million who have completed their sentences. Implementation of these laws have had tremendous impact on African American males. Thirteen percent of African American men or 1.4 million are disenfranchised. Of that number, 440,000 have completed their sentences and paid their debt to society. A report issued by the Sentencing Project in conjunction with Human Rights watch revealed that in Alabama and Florida, 31 percent of all Black men are permanently disenfranchised—unbelievable! In Iowa, Mississippi, New Mexico, Virginia, and Wyoming one in four or 24 to 28 percent of Black men are permanently disenfranchised. In Delaware, one in five black men or 20 percent are permanently disenfranchised. In Texas, one in five black men or 20 percent are permanently disenfranchised. And Black men represent less than 6 percent of the total U.S. population.
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    Clearly, this is not a White or a Black issue, this is a human rights issue, this is a test of democracy, and this is an American issue. It is clear that Blacks are disproportionately affected by these laws. An unacceptable trend is continuing in our nation with respect to prisons. We have what some have described as a prison industrial complex mentality, a new growth industry, a lock them up and throw away the key and deny them the right to vote when they get out. The impact of drugs, unemployment and antiquated sentencing laws have our prisons bursting at the seams. In the past 12 years the number of Americans in jails and prisons has doubled. At the end of 1985, there were 744,208 people locked up; by mid-1998, that number rose to 1.8 million. I suspect that the number will continue to rise.

    Disenfranchisement laws are inconsistent with our democratic principles. With this bill we have a unique opportunity to move from the dark ages to the light of a new sense of democracy and belonging for individuals who have paid their debt to society. If we are to live as an enlightened nation then we must not only talk rehabilitation, and reclamation but we must practice it. Moreover, rehabilitation and reclamation must not only include helping ex-felons get jobs and a place to live once they get back into society, but it must include encouraging and providing them opportunities to experience full citizenship, including the right to vote.

    To those who will argue against this bill, I ask you, what will America gain by denying ex-felons the right to experience the fullness of this great democracy. Are you saying that the prodigal son or daughter can never again come home and be accepted as a full member of the family. Is that the standard we want for our nation? I hope not, and so Mr. Chairman, I urge, I implore, I importune this honorable committee to look favorably upon the Conyers Bill and make democracy available to all of our law abiding citizens.
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    Thank you.

    Mr. WATT. I think Chairman Conyers has had a burning desire to grill Representative Davis for a long time.

    Mr. CANADY. Now that you mention it, Representative Conyers, if there is no objection, we would revert to opening statements so that Representative Conyers could make a statement if he so desires.

    Mr. CONYERS. I don't know where Mr. Watt got my burning desire from. Danny Davis is, of course, well known as a civil rights advocate for many, many years, before he came to Congress and an excellent public servant. And I commend him for his statement. And I wouldn't want to keep him here while we make opening statements.

    Mr. DAVIS. Thank you very much, Mr. Conyers. Mr. Chairman, again, I thank you and members of the committee.

    Mr. CANADY. Thank you.

    Mr. CONYERS. Mr. Chairman, I begin by thanking you for holding the hearing, and Mr. Watt as well. A lot of things can get swept aside as we move toward the close of the first session, and the fact that you chose not to do that with this issue is very important to me. I also want to commend the staff members of the Judiciary subcommittee who have done an excellent job.
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    And looking at the two questions that control us here this morning: one is the policy consideration and the second is the constitutional question. I think Congressman Davis has dealt with the policy question quite adequately. It would seem that in the national interests we would want to, if we can possibly do so, change the present circumstance with reference to Federal elections.

    I noticed Mr. Marc Mauer, who has worked with us across the years on Judiciary Committee, has other policy arguments that will be presented. So I just wanted to just run through the constitutional considerations, because they have been put forward quite well on both sides by our counsel.

    And there are several cases that come forward. Ramirez and Hunter, which might give people pause, when read together indicate that felon disenfranchisement laws are generally not susceptible to constitutional challenge, except where allegations of intentional, racial discrimination can be substantiated.

    And what we mean there is that we may not be able to prove—it is like the reparations debate, we may not be able to prove each case in particularity, but I don't think that that is what is intended by these lines of decisions that are with us, because where there is evidence of historical discrimination against members of a racial group with respect to State voter qualification practice, it is my belief that Congress has the ability to act.

    And so then going to the Hunter case, I have come forward with the notion that racial discrimination is a basis upon which the general right of the States to disenfranchise those with criminal convictions may be limited. Moreover, where Congress has recognized an intention to discriminate against individuals on account of race, the courts have given broad discretion to correct these measures through legislation.
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    So I feel quite confident that we are moving in a very careful and clearly drafted proposal to remedy a policy decision that has long been out of whack. And so it would be my position that the bill pass its constitutional muster, because where there is a history of racially discriminatory intent in a voter qualification policy, even if circumstantially shown, that that policy will be found to be in violation of the 14th amendment.

    And so this would make H.R. 906 appear to be an appropriate use of police power, and I am hopeful that we can move forward and continue whatever discussion that comes out of today's hearing.

    I look forward to hearing the witnesses. And I thank everybody on the committee for their contribution. Thank you very much.

    Mr. CANADY. Thank you, Mr. Conyers.

    Mr. Barr, we are about to go to our panel of witnesses; but if you would like to make an opening statement.

    Mr. BARR. No thank you.

    Mr. CANADY. Thank you.

    We now will go to our second panel of witnesses. We will put your name tags out there and the cards, and you can come forward and take your seats.
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    The first witness on our second panel this morning will be Marc Mauer, who is Assistant Director of the Sentencing Project and has directed programs on criminal justice reform for 20 years. He is the author of a book entitled Race to Incarcerate. Mr. Mauer has served as a consultant to the Bureau of Justice Assistance and the National Institute of Corrections and is a member of the American Bar Association's Committee on Race and the Criminal Justice System.

    Following Mr. Mauer will be Roger Clegg, who is Vice President and General Counsel of the Center for Equal Opportunity, where he writes, speaks, and conducts research on legal issues raised by civil rights laws. From 1982 to 1993, Mr. Clegg held a number of positions at the U.S. Department of Justice. Mr. Clegg has also served as Assistant to the Solicitor General where he argued several cases before the United States Supreme Court.

    Our third witness on this panel will be Gillian E. Metzger, Staff Attorney for the Brennan Center for Justice at NYU School of Law. Prior to joining the Brennan Center, Ms. Metzger served as a clerk for Judge Patricia M. Wald of the U.S. Court of Appeals for the D.C. Circuit. She graduated from Columbia Law School where she was a Kent Scholar and the Executive Articles Editor for the Columbia Law Review.

    Our next witness will be Viet D. Dinh, Associate Professor of Law and Deputy Director of the Asian Law and Policy Studies Program at the Georgetown University Law Center. At the law center, Professor Dinh teaches constitutional law, international investments, and business transactions. Professor Dinh graduated from Harvard Law School, magna cum laude. Previously, Professor Dinh served as special counsel to Senator Pete Domenici as well as law clerk to both U.S. Supreme Court Justice Sandra Day O'Connor and Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit.
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    Our fifth witness is Mr. Hilary O. Shelton, Director of the Washington Bureau of the National Association for the Advancement of Colored People. He specializes in such topics as affirmative action, equal employment protection, access to quality education, gun violence, the death penalty, voting rights registration and enforcement, and Federal sentencing reform.

    Our final witness on the second panel and in this hearing will be Todd F. Gaziano, Senior Fellow in Legal Studies at The Heritage Foundation, where he specializes in constitutional issues and judicial and legal reform. Prior to joining The Heritage Foundation, Mr. Gaziano served in the U.S. Department of Justice's Office of Legal Counsel in the Reagan, Bush, and Clinton administrations. Mr. Gaziano graduated from the University of Chicago Law School where he was a John M. Olin Fellow in Law and Economics. He also served as a judicial clerk to Judge Edith H. Jones of the U.S. Court of Appeals for the Fifth Circuit.

    I want to thank all of you for being here with us this morning. I would ask that you do your very best to summarize your testimony in no more than 5 minutes. Without objection, your full written statements will, of course, be made a part of the permanent record of the hearing.

    The light, when it is green, means you have time left. When it is red, it means time has expired. I don't think anyone here is going to insist on the strict application of the 5-minute rule. But you will endear yourselves to us if you keep close to adhering to it.

    Mr. CANADY. So with that, we will begin with our first witness, Mr. Marc Mauer.
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STATEMENT OF MARC MAUER, ASSISTANT DIRECTOR, THE SENTENCING PROJECT

    Mr. MAUER. Thank you, Mr. Chairman. And I appreciate being here, and I will make every effort to endear myself to all of you.

    I base my testimony—I will speak primarily to the policy questions involved here. My testimony is based in part on my experience over the last 20 years working in criminal justice, as well as a report I co-authored last year looking at the impact of these felony disenfranchisement laws.

    To begin with, just a bit of history. When this country was founded 200 years ago, the vote was granted only to a select few, essentially white, male property holders. Women were not permitted to vote, nor were African Americans, illiterates, the poor and felons and ex-felons. Two hundred years later, we now look back with great national embarrassment at the exclusion of all of those other groups which, of course, are part of our democracy today, and the only significant exclusion are the felons and ex-felons.

    There is no other democracy that has such extreme policies as we have, certainly in the 14 States where ex-felons are disenfranchised for life. No other country pursues a policy like this. Congressman Davis summarized some of the data from our report. Nearly 4 million Americans cannot currently vote. 1.4 million of these are ex-felons, people who have supposedly paid their debt to society.

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    As an example of how this works, you could be an 18-year-old in the State of Virginia, be arrested on a felony drug possession charge, be sentenced to go to a treatment program, which you complete successfully, never spend a day in jail in your life, and yet you will be disenfranchised for life in the State of Virginia.

    It also creates the anomaly, and certainly in Federal elections, whereby an ex-felon in West Virginia can vote for President, but an ex-felon in Virginia cannot vote for President. The racial impact of these laws is also an issue of great concern. One hundred years ago, in some southern States, Alabama, South Carolina and others, there was a specific racial intent to tailor the disenfranchisement laws to disenfranchise the newly-voting African Americans.

    In some of these States, laws were drafted so that crime supposedly committed more by blacks resulted in disenfranchisement, but not those supposedly committed more by whites. In addition to the current impact, because of the dramatic growth in the criminal justice system, we now know that for the generation of black males born today, we can anticipate that 30 to 40 percent of them will be disenfranchised for at least part of their adult lives, if current trends continue in the criminal justice system.

    This is not necessarily a specific racial intent, but these are the facts in terms of where our policies are taking us today. Now in terms of the rationale for why one should reconsider some of these laws, there are several arguments that I think are compelling. First is the question of public safety and rehabilitation. When a felon is sentenced to prison or some other form of felony sentence, we have to recognize that the vast majority of these people will be returning to the community. It may be in a year; it may be in 20 years; they will be coming back.
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    It is in the community's interests to foster some sense of responsibility and obligation to the community if we are concerned about having law-abiding citizens, law-abiding ex-felons. And it seems to me that participation in the political process is one of the best means of encouraging that type of responsibility and obligation.

    If we continue to deny the vote and continue to say you have never paid your debt to society, people have less of a stake in the future of their communities; and I think that has a negative impact on public safety.

    The argument has been raised by some that if we were to permit felons or ex-felons to participate in the vote that they would somehow represent a criminals' voting block or criminals' voting lobby. For example, you might have burglars coming together who want to lower the penalty for burglary. I have heard this on a number of occasions. Let us think about what this means.

    If you had a group of burglars in your community who wanted to accomplish this goal, you would first have to find a candidate running on a platform that calls for lowering the penalties for burglary, then find 51 percent of the electorate that wanted to vote for that candidate, and then have that candidate convince his or her fellow legislators to also lower the penalties for burglary. This does not seem to me to be a terrible threat to our democracy right now.

    Another argument that is often raised is the question of punishment, that taking away the right to vote is part of your punishment. Here again I think it contrasts very much with our traditional ways of sentencing and policy concerns.
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    Yes, we do take away some rights of prisoners and people sentenced on a felony sentence. Normally these have to do only with questions of security and crime control. For example, if you are a prisoner, you can subscribe to Newsweek, but you cannot subscribe to a magazine that tells you how to make explosive devices. Similarly, if you are a felon on probation or parole, we have conditions about whether you can associate with known criminals, known felons. These are all public safety concerns. We don't normally infringe upon people's other rights if they don't have an impact on public safety, and I think we should consider that seriously as well.

    Finally, I think the whole question of what we mean about a democracy and what we mean about inclusive society is very much germane here as well. It seems to me that in a democracy, in addition to criminals and prisoners on probation, there are many other kinds of people whose behavior offends us. There are people who don't take care of their children. There are people who drive recklessly on the highway. There are people who pollute the environment. It seems to me it is not for me to say that these people have no right to participate in our democracy and our political process, just because I disapprove of their behavior.

    There are other ways in which I can try to engage them in changing their behavior, but part of the problem of democracy is that we have to take the bad with the good, and everyone is supposed to be participating in that process. And once we start making judgments about character traits and morality, I think we go down a very dangerous, slippery slope.

    So I think there are some compelling reasons to reconsider these policies, and I appreciate your consideration of these. Thank you.

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    Mr. CANADY. Thank you, Mr. Mauer.

    [The prepared statement of Mr. Mauer follows:]

PREPARED STATEMENT OF MARC MAUER, ASSISTANT DIRECTOR, THE SENTENCING PROJECT

    My name is Marc Mauer and I am the Assistant Director of The Sentencing Project, a national non-profit organization based in Washington. The Sentencing Project was founded in 1986 to conduct research on criminal justice policy issues and to provide technical assistance to state and local jurisdictions on sentencing options. My observations on the issue of felon voting disenfranchisement are based on research and programming work I have conducted over the past twenty-five years.

    In 1998 I co-authored a study with Human Rights Watch titled ''Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States.'' In that study, we produced estimates of the number of persons subject to disenfranchisement as a result of a felony conviction and examined the history and rationale for these laws. I will try to summarize the most relevant issues from that study in my remarks today.

HISTORY OF DISENFRANCHISEMENT LAWS

    Felony disenfranchisement laws have existed in many states since the founding of the nation two hundred years ago. At that time, only a minority of the newly-independent population was granted the right to vote. Women, African Americans, the poor, and illiterates were all specifically excluded from the voting population, along with convicted felons. All of these other groups, of course, are permitted to vote today and we now look back on the period of their exclusion with a great deal of national embarrassment. The only significant group still disenfranchised are felons and ex-felons.
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    In this regard, the United States stands at an extreme end of the spectrum in comparison to other democratic nations. In no other democracy are convicted offenders who have served their sentences disenfranchised for life, as is done in a number of our states. A few countries restrict the right to vote for a short period after the conclusion of a prison term, but only in the case of persons convicted of electoral offenses. And, in fact, many countries—including France, Germany, Israel, Norway, and Poland—permit persons in prison to vote as well.

    After the Civil War, the felony voting restrictions took on new significance in some Southern states. Along with other ostensibly race-neutral voting barriers—literacy tests, poll taxes, and grandfather clauses—the felony voting laws were tailored in some states specifically to disenfranchise newly-empowered blacks. In South Carolina and Alabama, for example, legislators explicitly crafted laws that resulted in disenfranchisement for crimes supposedly committed more frequently by blacks and excluded offenses believed to be primarily committed by whites. While the felony voting restrictions in place today contain no such direct racial intent, their application has resulted in substantial racial disparities nevertheless, for a complex set of reasons.

VOTING RESTRICTIONS AND IMPACT

    Currently, 46 states prohibit prisoners serving a felony sentence from voting. (The four states that permit inmates to vote are Maine, Massachusetts, New Hampshire, and Vermont.) In addition, 32 states deny the vote to persons on probation and/or parole, and in 14 states a felony conviction can result in disenfranchisement for life. Voting in federal elections is determined by the voting laws in place in one's state of residence.
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    There are today an estimated 3.9 million Americans, representing two percent of the adult population, who cannot vote as a result of a felony conviction. Of these, 1.4 million are persons who have fully completed their felony sentence but reside in one of the states that impose lifetime disenfranchisement.

    States that disenfranchise for life generally have some type of mechanism in place whereby ex-felons can apply to have their civil rights restored. Typically, ex-felons are required to obtain a pardon from the governor or action by a board of pardons or parole. In practice, it is often extremely cumbersome to engage in this process and few ex-offenders have the financial and political resources needed to succeed. In Virginia, for example, only 404 ex-felons had their voting rights restored in a recent two-year period, of a total of 200,000 such persons in the state. In Mississippi, ex-offenders must either secure an executive order from the governor or have a state legislator introduce a bill on their behalf and obtain a two-thirds vote in the legislature.

    The differing voting restrictions in each state result in participation in the electoral process that is in part based on one's state of residence. An ex-felon in West Virginia can vote for President, but an ex-felon in Virginia cannot. Similarly, if an ex-felon moves from Virginia to West Virginia, he or she regains the right to vote, while a shift from West Virginia to Virginia would result in the loss of the vote.

    As a result of the high proportion of minorities in the criminal justice system, felony voting restrictions have had a very disproportionate racial impact. Our study estimated that 1.4 million African American men, representing 13 percent of the black adult male population, cannot vote as a result of a current or prior felony sentence. In ten states, more than one in five black men is currently disenfranchised. Given current rates of felony convictions and incarceration, we can expect that in the next generation of black men 30–40 percent will lose the right to vote for some or all of their adult lives.
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RATIONALE FOR RESTORING VOTING RIGHTS

    Given the increasing numbers of persons in the criminal justice system, the felony voting restrictions are resulting in increasing numbers of Americans losing their voting rights each year. There are several reasons why policymakers should consider reversing this trend by examining relevant legislation:

1. Participation in voting aids in rehabilitation and public safety.

    When offenders are sentenced to prison or probation for a felony conviction, their sentence incorporates a loss of liberty and other punitive measures. What is sometimes forgotten, though, is that 95% of all prisoners (and, of course, all probationers) will return to the community after serving their sentence. If society is to encourage their participation in legitimate activities, it needs to foster a sense of obligation and responsibility among offenders. One clear means of doing so is through participation in the electoral process. Those persons who believe they have a stake in the welfare of their community are less likely to engage in illegal activities that will bring harm to individuals.

    For ex-offenders in particular, felony voting restrictions conflict with the longstanding principle that once an offender has ''paid his debt to society'' he should be free to join the community again as a full member. Exclusion from the electoral process instead sends a message that this ''debt'' can never be paid in full.

2. Felony voting restrictions are antiquated.
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    Many of the voting restrictions currently in place were enacted over a century ago and have rarely been examined since that time. In many instances the rationale originally offered for such policies holds little relevance to current conditions. One finds in the legislative history and legal cases references to these laws as being necessary to protect the ''purity'' of the electoral process or to protect against fraud. For offenders convicted of such crimes as bribery, treason, or electoral fraud, this might represent a legitimate concern. It is difficult to understand, though, how a person convicted of stealing a car or writing a bad check twenty years ago presents a threat to the electoral process itself.

3. Voting restrictions should not serve as a form of punishment.

    Another rationale offered for the disenfranchisement laws is that they constitute a legitimate punishment that accompanies a felony conviction. Here, too, it is not clear what useful purpose is served by such statutes, and particularly so for persons who have completed their sentences. When a person is convicted of a felony offense, the punishment imposed will inevitably curtail some of the individual's rights, but these are generally related to public safety concerns. For offenders sentenced to prison, the restrictions imposed are generally those required to maintain the security of the institution. Thus, a prisoner can subscribe to a weekly newsmagazine, but not to a publication that provides information on how to produce explosive devices. Restrictions placed on parolees are designed to reduce the risk of criminal activity by, for example, prohibiting them from associating with known criminals. But there is no rational crime control purpose that is served by prohibiting an ex-offender from voting.

    Further, voting restrictions are imposed without any action by a judge and without any sense of proportionality. Thus, offenders convicted of larceny lose their voting rights along with mass murderers. This can result in persons convicted of a single relatively minor crime, even one committed before reaching voting age, being turned into political ''outcasts'' for life.
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4. Felony voting restrictions exacerbate racial tensions.

    Whether intended or not, disenfranchisement laws have had a significantly disproportionate impact on African Americans, and one that is increasing each year. While there need to be consequences for persons who violate the law, unnecessary policies such as the felony voting restrictions serve only to communicate a message of exclusion from the political process. If we are to promote racial harmony in our society, it is vital to make our democracy as inclusive as possible.

CONCLUSION

    Laws in the United States that disenfranchise persons convicted of a felony offense are resulting in greater numbers of persons being excluded from the ballot box as the number of persons under criminal justice supervision continues to expand. These laws have also had a significant impact on racial minorities and run counter to society's legitimate interest in promoting the development of law-abiding ex-offenders who have a stake in the well-being of their community.

    The issue of felony voting disenfranchisement is not a question of whether there should be punishment for crime. It is instead a question of whether society is promoting practices and behaviors that will make for a more inclusive and democratic community. It is long past time to reconsider the wisdom of such policies.

    Mr. CANADY. Mr. Clegg.
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STATEMENT OF ROGER CLEGG, VICE PRESIDENT AND GENERAL COUNSEL, CENTER FOR EQUAL OPPORTUNITY

    Mr. CLEGG. Thank you, Mr. Chairman, for the opportunity to testify before this subcommittee today. I am delighted to be here.

    As a number of people have already pointed out, there are really two sets of issues that we have to focus on today: One is whether as a policy matter this bill makes sense, and the other is whether Congress has the authority to enact this legislation. In my view, the bill fails both tests. It is unsound as a matter of policy, and it is also beyond Congress' authority to enact.

    I should say at the outset that, particularly with respect to Congress' authority, it is not even a close question. It is not a matter of shading some legal distinctions. It is a matter of wholly falling short of what is necessary in order for Congress to have authority to enact the bill.

    Let me talk briefly about why as a policy matter it seems to me that this bill is misconceived. It is true that voting is a right, but it is also a privilege; not everyone can vote. We don't let children vote. We don't let noncitizens vote. We want people to vote only if they are trustworthy and only if they are loyal.

    It is not unreasonable to suppose that people who have committed serious crimes are lacking in trustworthiness and are not going to be good citizens. Now, we have already heard, and I suspect that we will hear more, about some of the anomalies that result in various States from criminal disenfranchisement laws. There are some relatively minor felonies—that seems oxymoronic—but there are some crimes that seem less plausibly related to someone's trustworthiness as a voter than others.
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    But, of course, the meat-axe approach taken by H.R. 906 does not allow for that kind of fine distinction. All felons—not only nonviolent drug offenders but murderers, rapists, spies, perjurers, electoral fraud convicts, what have you—are all equally given a Federal right to vote. And I also think it is very difficult for Congress to avoid that kind of anomaly if it gets into this area.

    The careful linedrawing that perhaps should be done between some felonies and other felonies in deciding who can vote and who can't vote would be very difficult for Congress to do. Every State has its own array of felony offenses; that array is constantly changing.

    It would be necessary for Congress to pass a very detailed, complicated statute and to be updating it constantly in order for this kind of approach to make sense. I think it makes much more sense for Congress to leave this kind of linedrawing where it already is—with the States. And the efforts of some of the witnesses here today could be aimed at the State level, which is where I think that they belong.

    With respect to Congress' authority to pass this bill, the Supreme Court has made it very clear—and the Constitution itself makes it very clear—that Congress cannot enact legislation unless it can point to some enumerated authority, some enumerated power in the Constitution.

    There are only two possible places that Congress could find such power to pass this bill. And, again, I think it is quite obvious that neither one of them is actually a plausible font of congressional authority.
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    It might be claimed that article 1, section 4—which gives Congress the authority to regulate the ''Times, Places, and Manner of Holding Elections''—gives Congress this authority. But time, place, and manner is not the same thing as who can vote. Alexander Hamilton said that, in basically those words, and James Madison agreed in The Federalist Papers. The language in article 1, section 2, clearly says who can vote in elections for the House of Representatives and by extension for other Federal elections.

    So there really is no plausible textual justification for finding a font of Federal authority in article 1, section 4. And the only time that anybody on the Supreme Court has ever found such a font was in one opinion, by Justice Black, which no other Justice joined in one case.

    With respect to Congress' authority under the Enforcement Clauses of the Reconstruction Era amendments, a couple of my colleagues up here are going to be talking about that. I would just say briefly that it is quite clear now that Congress can act under those Enforcement Clauses only if it is trying to address intentional discrimination. And my friend to the left here, Marc Mauer, who just testified says in his testimony that felony voting restrictions in place today contain no such direct racial intent.

    Accordingly, I do not believe that Congress has authority to enact this legislation, even if it were a good idea, and I don't think it is a good idea.

    Thank you.

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    Mr. CANADY. Thank you, Mr. Clegg.

    [The prepared statement of Mr. Clegg follows:]

PREPARED STATEMENT OF ROGER CLEGG, VICE PRESIDENT AND GENERAL COUNSEL, CENTER FOR EQUAL OPPORTUNITY

INTRODUCTION

    Good morning, Mr. Chairman. My name is Roger Clegg, and I appreciate the opportunity to testify before this subcommittee today on H.R. 906. I am vice president and general counsel of the Center for Equal Opportunity, a nonpartisan, Section 501(c)(3) research and educational organization, where I write and speak on civil rights issues. I graduated from Yale Law School in 1981, clerked on the U.S. Court of Appeals for the District of Columbia Circuit, and then served at the U.S. Department of Justice from July 1982 to January 1993, including four years as a deputy in the Civil Rights Division.

    The heart of H.R. 906 is section 3, which provides: ''The right of an individual who is a citizen of the United States to vote in any election for Federal office shall not be denied or abridged because that individual has been convicted of a criminal offense unless such individual is serving a felony sentence in a correctional institution or facility at the time of the election.''

    Thus, with the exception of those currently serving time in prison for a felony conviction, H.R. 906 would require that all persons convicted of crimes—those serving time for misdemeanors, or in ''any residential community treatment center'' for a felony; those on probation or parole for felonies or misdemeanors; and those who have completed their sentences for felonies or misdemeanors—must be allowed to vote in federal elections. And, since it is logistically difficult for states to have one voting list and set of ballots and voting booths for federal elections and another for state and local elections, it is likely that this bill would change who is allowed to vote in state and local elections, too. This is a dramatic change, because currently the vast majority of states do not allow at least some of these people to vote.
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    H.R. 906 makes no claim that criminals are disenfranchised because of their race, nor could it plausibly do so. Without an assertion of its authority under the 14th or 15th Amendment, Congress may not dictate to states the requirements of electors in state elections, and wisely H.R. 906 does not do so. H.R. 906 does propose to cover federal elections, however.

    Congress should not pass this bill unless it is satisfied that: (1) the bill is sound as a matter of policy; and (2) Congress has constitutional authority to do so. H.R. 906 fails both tests.

H.R. 906 IS BAD POLICY

    Voting is a right, but it is also a privilege. Not everyone in the United States may vote. As a general matter, only those who have reached a certain age, and who are American citizens, are allowed to vote. We do not want people voting who are not trustworthy and loyal to our republic. While maturity and trustworthiness do not always come with age, and while loyalty does not always coincide with citizenship, there is generally thought to be a correlation.

    It is not unreasonable to suppose that those who have committed serious crimes may be presumed to lack this trustworthiness and loyalty. Criminals are, in the aggregate, less likely to be trustworthy, good citizens. In addition, for those actually incarcerated, even if only for misdemeanors, there may be logistical problems with their voting.

    It may be objected that not all crimes are equal, and that even among felons, it cannot be presumed that all are equally to be mistrusted with the ballot. But even if this is true, it does not follow that therefore all should be allowed to vote. Rather, it would be more prudent to distinguish among various crimes: murder, rape, treason, espionage, and perjury, on the one hand, versus, say, nonviolent drug crimes, on the other. But this will be a difficult line for Congress to draw, since every state has its own array of offenses. Further, these offenses are constantly changing, and so Congress would have to be constantly updating any statute it wrote that drew distinctions among various crimes. Accordingly, it is wiser for Congress to leave the line-drawing to the states, where it has always been. This also allows the states to review re-enfranchisement on a case-by-case basis, through an application process.
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    The fact that criminals are ''overrepresented'' in some groups and ''underrepresented'' in others is no reason for the federal government to intervene, absent some evidence of discriminatory intent by the states. If a lot of young people, black people, or male people are committing crimes, then our efforts should be focused on solving that problem. It is bizarre instead to increase their political power.

    H.R. 906 sends a very bad message: that Congress does not consider criminal behavior such a serious matter that the right to vote should be denied because of it.

    Much has been made of the high percentage of criminals—and, thus, disenfranchised people—in some communities. But this is an argument against re-enfranchisement, because there accordingly exists a voting bloc that could create real problems by skewing election results.

    So it makes no sense for Congress to pass his bill. And Congress lacks this authority anyway.

LIMITS ON CONGRESSIONAL AUTHORITY

    The Supreme Court recently reaffirmed in United States v. Lopez, 115 S. Ct. 1624, 1626 (1995), what is obvious from the text of the Constitution: ''The Constitution creates a Federal Government of enumerated powers.'' Accordingly, Congress must point to some font of authority in the Constitution for passing H.R. 906.

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    There are three theories under which Congress might assert authority for passing this bill. If Congress has authority to pass this bill under Article I, Section 4, it can simply assert its belief that all criminals (excepting felons currently in prison) are entitled to vote, and not rely on any claim that it is addressing racial discrimination. Congress also could assert authority to pass this bill under the Enforcement Clauses of the 14th and 15th Amendments—either because of the disparate impact that disenfranchisement of these criminals and former criminals has on some minority groups, or because this disenfranchisement is in fact racially motivated.

CONGRESS LACKS AUTHORITY UNDER ARTICLE I, SECTION 4

    With respect to the first justification, the hurdle is Article I, Section 2, of the Constitution, which says that electors for the House of Representatives—and, by extension, for all federal elections—''shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.'' Thus, it gives authority for determining elector qualifications to the states.

    It might be asserted that Article I, Section 4, gives Congress authority to trump the states, insofar as it allows Congress to ''make or alter such [state] Regulations'' regarding ''[t]he Times, Places and Manner of holding Elections for Senators and Representatives.'' As a textual matter, this is unpersuasive, since Article I, Section 4, is talking about ''holding Elections''—not about who votes, which is the express focus of Section 2.

    In The Federalist No. 60, Alexander Hamilton said of Article I, Section 4, that the national government's ''authority would be expressly restricted to the regulation of the times, the places, and the manner of elections. The qualifications of the persons who may choose or may be chosen . . . are defined and fixed in the constitution; and are unalterable by any legislature.'' (Emphasis in original.) In The Federalist No. 52, James Madison had written of Article I, Section 2: ''To have left it [that is, ''[t]he definition of the right of suffrage''] open for the occasional regulation of Congress, would have been improper. . . .'' Hamilton and Madison believed that generally the state constitutions would determine who voted; Congress, in any event, would not.
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    The Supreme Court's decision in Oregon v. Mitchell, 400 U.S. 112 (1970), should be discussed here. Five justices in a highly fractured series of opinions voted to uphold legislation that required 18-year-olds to be allowed to vote in federal elections. Justice Black wrote one opinion, Justice Douglas another, and Justices Brennan, White, and Marshall wrote a third. None of those writing one opinion joined any of the others, and four Justices—Harlan, Stewart, Blackmun, and Chief Justice Burger—dissented. The issue was superseded a little over six months later with the ratification of the 26th Amendment.

    It is true that in this case a majority of the justices did vote to uphold a statute that dictated who could vote in federal elections even though it was not aimed at racial discrimination. But only one of the five justices—Justice Black—relied on Article I, Section 4. The other four relied on interpretations of Congress's enforcement authority under the 14th and 15th Amendments that are inconsistent with the Court's subsequent rulings in Richardson v. Ramirez, 418 U.S. 24 (1974), combined with City of Boerne v. Flores, 117 S. Ct. 2157 (1997). (As discussed below, Ramirez said that it was not a violation of the Equal Protection Clause to disenfranchise felons, and Boerne said the Congress could not assert its enforcement authority to prohibit state actions unrelated to 14th Amendment violations.) Accordingly, reliance on Article I, Section 4, lacks textual support and has been endorsed by only a 1970 opinion joined only by Justice Black; and Orgeon v. Mitchell provides little support today for H.R. 906.

CONGRESS LACKS AUTHORITY UNDER THE 14TH AND 15TH AMENDMENTS

    If Article I, Section 4, does not give Congress the authority to trump the states' authority for determining voting qualifications in Article I, Section 2, then we are left with the claim that Congress may pass H.R. 906 under its authority to enforce the 14th and 15th Amendments.
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    It is quite clear that laws that have a mere disparate impact—but no discriminatory intent—do not violate the 14th and 15th Amendments. The Supreme Court has so held repeatedly with respect to the 14th Amendment. A plurality has so held with respect to the 15th Amendment—in City of Mobile v. Bolden, 446 U.S. 55 (1980)—and it is hard to see how the standard could be different for one Reconstruction Era amendment than for another. When the Supreme Court considered a claim that a state law denying the franchise to those convicted of crimes ''involving moral turpitude'' was unconstitutional race discrimination, it said: '' '[O]fficial action will not be held unconstitutional solely because it results in a racially disproportionate impact. . . . Proof of racially discriminatory intent is required to show a violation of the Equal Protection Clause.'' ' Hunter v. Underwood, 471 U.S. 222, 227–28 (1985) (quoting Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264–65 (1977), and citing Washington v. Davis, 426 U.S. 229, 239 (1976)). Accordingly, Congress cannot credibly assert its enforcement authority if it can point to nothing but disparate impact.

    It is true that the Supreme Court has upheld congressional bans on certain voting practices and procedures—like literacy tests—that are not themselves discriminatory on their face but have disproportionately excluded racial minorities from voting. City of Rome v. United States, 446 U.S. 156 (1980); Oregon v. Mitchell, 400 U.S. 112 (1970); see also City of Port Arthur v. United States, 459 U.S. 159, 168 (1982); City of Pleasant Grove v. United States, 479 U.S. 462, 471–72 (1987). But, as the Court stressed in its Boerne opinion, these cases involved bans aimed at practices that historically have been rooted in intentional discrimination.
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    H.R. 906 does not assert that a desire to discriminate on the basis of race is the reason for the disenfranchisement of criminals. Nor can this assertion by plausibly made.

    To begin with, Section 2 of the 14th Amendment itself contemplates this disenfranchisement, since it acknowledges that ''the right to vote'' may be ''abridged for participation in rebellion, or other crime. . . .'' Surely this is some evidence that the reasons for disenfranchising criminals need not be racially discriminatory. The Supreme Court upheld a felony disenfranchisement statute from a nonracial Equal Protection Clause challenge in Richardson v. Ramirez, 418 U.S. 24 (1974), relying on Section 2.

    I discussed earlier the legitimate reasons a state may have for disenfranchising criminals. The overwhelming number of states to have passed such disenfranchisement laws also indicates that something other than racial discrimination is indeed the motive.

 Only four New England states—Maine, Massachusetts, New Hampshire, and Vermont—allow all felons to vote.

 Twenty-nine states prohibit felons who are on probation from voting.

 Thirty-two states prohibit felons who are on parole from voting.

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 The states that prohibit all felons from voting—whether in prison, on probation, on parole, or having fully served their sentences—are: Alabama, Arizona (for a second felony), Delaware, Florida, Iowa, Kentucky, Maryland (for a second felony), Mississippi, Nevada, New Mexico, Virginia, and Wyoming. This is hardly the old Confederacy: only four of the twelve states fall in that category.

 Conversely, in the old Confederacy, Texas, Arkansas, Louisiana, North Carolina, South Carolina, and Georgia all allow felons to vote, so long as they are no longer in prison, on parole, or on probation, and, in fact, Louisiana allows felons on probation or parole to vote. Tennessee allows some felons to vote, too.

    It is true that, between 1890 and 1910, many Southern states (Alabama, Louisiana, Mississippi, South Carolina, and Virginia) tailored their criminal disenfranchisement laws to increase their effect on black citizens. But the judiciary has been willing to strike these laws down—for instance, the Alabama law in Hunter v. Underwood, 471 U.S. 222 (1985). The meat-ax approach of H.R. 906 is as unnecessary as it is unwise.

    In Boerne, in discussing the scope of Congress's enforcement powers for the Reconstruction Era amendments, the Court declared, ''There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.'' The Court concluded that Congress could not bar state actions with a discriminatory effect on the free exercise of religion when the underlying constitutional right was to be free from state actions with discriminatory intent. Likewise, there is no ''congruence and proportionality'' between guaranteeing people the right to vote irrespective of race and a requirement that criminals be allowed to vote.
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CONCLUSION

    H.R. 906 is misguided as a matter of policy and, in any event, Congress lacks authority to pass it. It should not be enacted.

    Mr. CANADY. Ms. Metzger.

STATEMENT OF GILLIAN E. METZGER, STAFF ATTORNEY, BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW

    Ms. METZGER. Thank you. Good morning, Mr. Chairman, and members of the committee. I appreciate the opportunity to be able to come here and talk to you about H.R. 906.

    I am going to be limiting my remarks to one of those two questions, which is the constitutional authority, the Congressional authority to enact H.R. 906. Although I will say at the outset that I am very much in agreement with the policy concerns and the fundamental fairness of ensuring that this kind of restriction on voting does not continue.

    There are two bases, the Election Clause of article 1, section 4 combined with Congress' broad inherent power to regulate the Federal elections and also the Enforcement Clauses of the 14th and 15th amendments, both of which I, unlike Mr. Clegg, believe provide actually a clear basis for concluding that Congress has the power to enact H.R. 906.

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    And what I am going to do today is just briefly outline my positions on that and also rebut some of what I think are the most common arguments made against those as the basis for the power.

    The first point that I think is terribly important to emphasize is that this bill obviously regulates only Federal election and only franchises offenders for Federal elections. That is important because the Elections Clause, which has been interpreted consistently to give Congress an extraordinarily broad power to regulate Federal elections, although the text for example, says time, place, and manner of holding elections for the House and the Senate, and that the States can enact regulations affecting those that Congress can then preempt, it has been held to apply—to give authority to enact the complete code regarding Federal elections, to enact rules regarding the conduct to Federal campaigns.

    In Buckley v. Valeo and the court has also held in Boroughs that Congress has an equally broad inherent power to regulate Presidential elections. As the bill itself details, there is currently tremendous disparity among the voting rights of offenders across this country and the different States.

    And it seems to me that it is well within Congress' power under the Elections Clause to make the determination that in its policy judgment that such disparities on fundamental rights to vote based simply on a happenstance of geography are not merited. The main argument that is given that you have heard today and that is in the testimony is that Congress' power under the Election Clause in this case to set qualifications directly is limited by the Qualifications Clauses.

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    The flaw I find with that argument is it just doesn't comport with current case law on the Qualifications Clauses. The court held in Tashjian, for example, that those clauses were not intended to mean that the qualifications for State elections always had to be the same as Federal elections. And what it concluded there in its holding was that really what those clauses were meant to do was to get at a very specific evil and that was the concern that people would been enfranchised for State elections and not for Federal elections and that would undermine support for the national legislature.

    Given that H.R. 906 expands rather than contracts who can vote for national elections, that danger is not present here and it doesn't seem to me that actually there is a Qualifications Clause issue. I think it also merits noting that Mitchell, although the Justices in that case in sustaining Congress' power to set the—to lower the voting age to 18 for Federal elections but not for State elections disagreed on the basis, whether it is the Elections Clause or the 14th amendment. The court has not gone so far—at all to conclude that that means that the holding in that regard is somehow in question.

    In fact, in the case called Kasper the court went out and said the explicit statement that Congress has the power to set qualifications for elections for Federal office, and that is the latest direct statement on Congress' power in this regard.

    Turning now to the Enforcement Clause powers. I think in this case, the point to begin with is that the right to vote is a fundamental right. And Congress—it is a fundamental right that is protected by the 14th and the 15th amendment, and Congress clearly has the authority to enact laws to protect the rights protected by those amendments.

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    I think it also merits particular emphasis that there is a long history of felony disenfranchisement provisions being used after the Civil War, as Mr. Mauer mentioned, along with poll taxes, literacy tests, as sort of a final backstop to limit voting by the newly-enfranchised blacks, and that history combined with the extraordinary disparate impact that these provisions have today should, in my mind, clearly sustain a basis for concluding that Congress has the power to enact H.R. 906 under the Enforcement Clause; therefore, the argument that there is no discriminatory intent, I don't think is at all at issue here.

    I also think it merits noting that H.R. 906 is not only limited in regard to Federal elections and only targeting those elections but the very carefully crafted bill that only targets an area which is one of clear and paramount congressional and Federal concern, and also one where there is a long practice of Congress preempting action by the States. It is, therefore, for example decidedly different than the Religious Freedom Restoration Act at issue in the City of Boerne case which applied to all areas of State and local government, and also in that regard, where Congress didn't include findings about a particular problem of discrimination, that the law was intended to address as exists here.

    I also think that it merits noting, as my final point, that as we moved over time in our changing and understanding of who is entitled to vote, I think that Congress would even have power to enact H.R. 906 on the grounds that it concludes the felonies disenfranchisement provisions are arbitrary restrictions and classifications.

    It is clear that felony disenfranchisement provisions like every other law are subject to that basic restriction on rationality that is inherent in the Equal Protection Clause and, particularly, when you look at the arbitrariness in some of these divides regarding the extremely arduous requirements for getting restoration to vote in certain States, the different treatment of Federal and State offenders, the different rules regarding who can vote and at what stage across the States, that Congress could conclude that, particularly in regard to nonincarcerated offenders there simply is no legitimate reason to deny them the vote.
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    Thank you.

    Mr. CANADY. Thank you.

    [The prepared statement of Ms. Metzger follows:]

PREPARED STATEMENT OF GILLIAN E. METZGER, STAFF ATTORNEY, BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW

BACKGROUND

    The U.S. Constitution provides that voters in congressional elections ''shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.'' U.S. Const. art. I, §2. amend. XVII; see also U.S. Const., art. II, §1, cl. 2 (''Each State shall appoint, in such Manner as the legislature thereof may direct, a number of [presidential] Electors.''). Most states currently restrict the vote of citizens who have been convicted of a crime. Fourteen States disenfranchise convicted offenders permanently, while 32 States disenfranchise felons on parole and 29 States disenfranchise felons on probation. Only three States—Maine, Massachusetts, and Vermont—impose no restriction on voting by offenders, including incarcerated offenders. As a result of these criminal disenfranchisement laws, an estimated 3.9 million U.S. citizens and 13 percent of adult African-American men cannot vote in federal or state elections, See The Sentencing Project & Human Rights Watch, Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States 1–2 (1998) (hereinafter ''Losing the Vote'').
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    You have asked us to analyze whether Congress has authority to enact H.R. 906, entitled ''The Civic Participation and Rehabilitation Act of 1999,'' which would require that non incarcerated felons be allowed to vote in federal elections. H. R. 906 finds that ''discrepancies in State laws regarding felony convictions lead to unfairness in Federal elections,'' because:

(A) there is no uniform standard for voting in federal elections which leads to an unfair disparity and unequal participation in Federal elections based solely on where a person lives; (B) laws governing the restoration of voting rights after a felony conviction are unequal throughout the country and persons in some States can easily regain their voting rights while in other States persons effectively lose their right to vote permanently; and (C) State disenfranchisement laws disproportionately impact ethnic minorities.

H.R. 906, §2(2). The bill further finds that ''[b]asic concepts of fundamental fairness and equal protection require an equal opportunity for Americans to vote in Federal elections'' and that enfranchising felons will ''restore fairness in the Federal election process and promote reintegration of former offenders into life as law abiding citizens of the United States.'' Id. §2(7).

    Section 3 of H. R. 906 provides that ''[t]he right of an individual who is a citizen of the United States to vote in any election for Federal office shall not be denied or abridged because that individual has been convicted of a criminal offense unless such individual is serving a felony sentence in a correctional institution or facility at the time of the election.'' H. R.906 creates a private right of action to enforce its provisions and also authorizes enforcement by the Attorney General, the same enforcement mechanism employed in the National Voter Registration Act of 1993 (NVRA), 42 U.S.C. §1973gg et seq. (1994).
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QUESTION PRESENTED

    Does Congress have constitutional authority to legislate the enfranchisement of non-incarcerated offenders for federal elections, as provided in H. R. 906?

SHORT ANSWER

    There are three potential constitutional bases for Congress' authority to enfranchise non incarcerated offenders for federal elections: Congress's supervisory power over federal elections, rooted in Article I, Section 4; Congress' enforcement power under Section Five of the Fourteenth Amendment, and Congress's enforcement power under Section Two of the Fifteenth Amendment. Whether Congress' supervisory power over federal elections extends to directly establishing qualifications for voters in federal elections is unclear, although an argument can be made that it does. Regardless, the provisions of H. R. 906 appear to fall clearly within Congress' enforcement powers under the Fourteenth and Fifteenth Amendments. Laws disenfranchising criminal offenders have a long history as means intended to prevent voting by African-Americans, and they have a substantially greater impact on minorities. Under its enforcement powers, Congress can conclude that enfranchisement of non-incarcerated offenders is appropriate to ensure that racial discrimination does not taint federal elections. Congress could also enfranchise non-incarcerated offenders under its Fourteenth Amendment enforcement power based on its determination that laws disenfranchising non-incarcerated felons are arbitrary and irrational. Finally, there is no constitutional obstacle to allowing non-incarcerated federal offenders to vote in federal elections, even though they may remain ineligible to vote in state elections.

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ANALYSIS

I. Congress' Supervisory Power Over Federal Elections:

    The Elections Clause of Article I, section 4 provides that ''[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.'' This clause has been held to give Congress broad power to regulate federal elections. See Smiley v. Holm, 285 U.S. 355, 366 (1932) (''The subject matter is the 'times, places and manner' of holding elections for senators and representatives. It cannot be doubted that these comprehensive words embrace authority to provide a complete code for congressional elections.''); see also Foster v. Love, 118 S. Ct. 464, 467 (1997) (referring to the ''ample limits of the Elections Clause's grant of authority to Congress'').

    It is unclear whether Congress' broad power under the Elections Clause extends to directly establishing the qualifications for voting in federal elections. Article I expressly distinguishes between the ''Qualifications'' of voters in House elections addressed in section 2, which must be the same as the qualifications for voters in certain state elections, and the ''Times, Places and Manner'' of such elections addressed in the Elections Clause of section 4. This distinction in Article I's terminology could be read to suggest that Congress' authority over federal elections does not extend to establishing the qualifications of federal voters. See Oregon v. Mitchell, 400 U.S. 112, 288 (1970) (Stewart, J., dissenting in part and concurring in part) (''The 'manner' of holding elections can hardly be read to mean the qualifications for voters, when it is remembered that [section] 2 of the same Art. I explicitly speaks of the 'qualifications' for voters 'in elections to choose Representatives.'); see also Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 50 (1959) (''The States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised.''); ACORN v. Edgar, 56 F.3d 791, 794 (7th Cir. 1995) (concluding that Congress' power under the Elections Clause ''was subject in the first place to the reservation to the states of the power to fix the qualifications for votes for Senators and Representatives'' and upholding the constitutionality of the NVRA on the grounds that it ''does not purport to [directly] alter the qualifications'' in federal or state elections). Many significant federally-mandated alterations in voting qualifications allowing women to vote and prohibiting denial of the right to vote in federal elections based on failure to pay a tax are two Twentieth Century examples—have occurred through constitutional amendment rather than congressional legislation.
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    Notably, however, the Court did sustain legislative attention of the voting age for federal elections in Mitchell. See 400 U.S. at 117–18. Justice Black, whose opinion announced the judgment of the Court in Mitchell, expressly held that Congress' powers under the Elections Clause and the Necessary and Proper Clause, art. I, §8, cl. 18, authorized Congress to require that all citizens aged 18 or older be allowed to vote in federal elections. See 400 U.S. at 119–24. Although Justice Black was the only member of the Court to take this view in Mitchell, a majority of the Court has expressly left open the question of whether Congress' supervisory power extends to directly establishing the qualifications for participating in federal elections. See Katzenbach v. Morgan, 384 U.S. 641, 646 n.5 (1966) (concluding that Congress had power under the Fourteenth Amendment to prohibit restrictions on voting based on inability to read or write English and thus the Court need not ''consider whether [the prohibition] could be sustained insofar as it relates to the election of federal officers as an exercise of congressional power under art. I, s. 4.''). Moreover, at times the Court has used language suggesting that Congress' power under the Elections Clause extended to limiting the States' powers under section 2 of Article I. See Kasper v. Pontikes, 414 U.S. 51, 57 n. 11 (1973) (stating that ''[w]ith respect to elections to federal office, the Court has held that Congress has power to establish voter qualifications'' and citing Mitchell); United States v. Classic, 313 U.S. 299, 315 (1941) (''While, in a loose sense, the right to vote for representatives in Congress is sometimes spoken of as a right derived from the states . . . this statement is true only in the sense that the states are authorized by the Constitution, to legislate on the subject as provided by §2 of Art. I, to the extent that Congress has not restricted state action by the exercise of its powers to regulate elections under §4.'').
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    The Court's decision in Tashjian v. Republican Party, 479 U.S. 208 (1986), also supports the conclusion that Congress has power to alter the qualifications of federal voters directly. In Tashjian, the Court held that the specification of the qualifications of federal voters in Article I, section 2, and the Seventeenth Amendment was intended simply to ensure that voters in state elections could vote in federal elections:

Far from being a device to limit the federal suffrage, the Qualifications Clause was intended by the Framers to prevent the mischief which would arise if state voters found themselves disqualified from participation in federal elections. . . . The fundamental purpose of the Qualifications Clauses contained in Article I, [section] 2, and the Seventeenth Amendment is satisfied if all those qualified to participate in the selection of members of the more numerous branch of the state legislature are also qualified to participate in the election of Senators and Members of the House of Representatives.

Id. at 228–29. This statement suggests that the Qualification Clauses should not be read as preventing Congress from directly altering the qualifications for federal voters, but rather as establishing an outer limit on the power of both Congress and the states under the Elections Clause of section 4. Although the states have broad power to regulate federal elections under this Clause, and Congress has a similarly expansive power to preempt such state regulations, neither Congress nor the states can impose a regulation that results in excluding persons qualified to vote in certain state elections from participating in federal elections.

    Thus, an argument can be made that the Elections Clause gives Congress the power to establish the qualifications for voting in federal elections. If so, Congress clearly has the authority to enfranchise non-incarcerated offenders for federal elections, as provided in H. R. 906. As H. R. 906 explicitly finds, current state laws restricting the voting rights of criminal offenders mean that a substantial number of U.S. citizens are unable to vote in federal elections, particularly African-American men. Further, the tremendous variations in state laws regarding criminal disenfranchisement means that citizens' fundamental federal rights may often differ depending on the State in which they live. Given this record it plainly would be rational for Congress to conclude that a uniform approach which enfranchised all but incarcerated offenders was appropriate. In addition, Tashjian establishes that no constitutional obstacle to H.R. 906 is created by the fact that in many instances non-incarcerated offenders will be qualified to vote in federal elections but not in elections for the most numerous branch of the state legislature. See 479 U.S. at 229 (holding identical voter qualifications are not required in federal and state elections, and therefore upholding a rule allowing independent voters to vote specifically in party primaries for congressional elections).
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II. Fourteenth Amendment:

    Section 1 of the Fourteenth Amendment states that ''No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'' Section 5 provides that Congress has the power ''to enforce, by appropriate legislation, the provisions of this article.'' In its recent decision in City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157 (1997), the Supreme Court held that ''Congress' power under [section] 5 . . . extends only to enforcing the provisions of the Fourteenth Amendment. . . . [and] Congress does not enforce a constitutional right by changing what the right is.'' 117 S. Ct. at 2164. According to the Court, Congress is entitled to ''wide latitude'' in determining where the line between remedial and substantive measures lies, but ''[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.'' Id. at 2164.

    The Supreme Court has held that ''the right to vote for national officers'' is one of the privileges of national citizenship covered by the Fourteenth Amendment's Privileges and Immunities Clause. Twining v. United States, 211 U.S. 78, 97 (1908). For the most part, however, the Court has not focused on the right to vote in federal elections because it has held that the right to vote more generally is a fundamental right subject to the protections of the Equal Protection Clause. As a result it has subjected restrictions on the right to vote to strict scrutiny, under which the restrictions are only sustained if they ''are necessary to promote a compelling state interest.'' Kramer v. Union Free School Dist., 395 U.S. 621, 627 (1969); see also Dunn v. Blumstein, 405 U.S. 330, 337 (1972). Applying strict scrutiny, the Court has struck down numerous types of voter qualifications. See, e.g., Dunn, 405 U.S. at 353–54, 360 (overturning statute imposing one-year durational residency requirement for voting); Kramer, 395 U.S. at 632–33 (overturning statute allowing only property owners and lessors or parents of children enrolled in public schools to vote in school board elections); Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 669–71 (1966) (overturning statute requiring voters pay a $1.50 poll tax to be allowed to vote). The Court has also upheld Congress's power to prohibit certain voting restrictions by statute. See City of Rome v. United States, 446 U.S. 156, 173–79 (1990) (sustaining Congress's power to prohibit certain jurisdictions from adopting voting changes that have a discriminatory impact); Mitchell, 400 U.S. at 117–18 (Black, J., issuing judgment of court and expressing his view of the case); id. at 141–42, 145–50 (Douglas, J., concurring in part and dissenting in part); id. at 229–31 (opinion of Brennan J., joined by White, and Marshall JJ., concurring in part and dissenting in part) (all upholding amendments to the Voting Rights Act (VRA) establishing 18 as maximum age requirement for federal elections, prohibiting the use of literacy tests, and setting residency and absentee ballot requirements for presidential and vice presidential elections); id at 232–86) (Stewart, J., joined by Burger, C.J., and Blackmun, J., concurring in part and dissenting in part) (upholding amendments to the VRA prohibiting the use of literacy tests and setting residency and absentee ballot requirements for presidential and vice presidential elections); Morgan, 384 U.S. at 649–56 (sustaining section 4(e) of the VRA restricting the states' ability to condition the right to vote on ability to read and write English).
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    However, in Richardson v. Ramirez, 418 U.S. 24 (1974), the Court distinguished between criminal disenfranchisement laws and other restrictions on the right to vote. The Court based its decision in Ramirez on section 2 of the Fourteenth Amendment, which addresses the distribution of Representatives among the States and provides that ''when the right to vote . . . is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced.'' (emphasis added). According to the Court, the words ''or other crime'' in section 2 meant that:

the exclusion of felons from the vote has an affirmative sanction which was not present in the case of the other restrictions on the franchise invalidated in [other] cases. . . . [Section] 1. in dealing with voting rights as it does, could not have been meant to bar outright a form of disenfranchisement which war, expressly exempted from the less the drastic sanction of reduced representation which [section] 2 imposed for other forms of disenfranchisement.

Id. at 54–55. The Court therefore held that a provision of the California Constitution which permanently disenfranchised persons convicted of certain crimes was not facially unconstitutional under the Equal Protection Clause, and remanded for a determination of whether ''there was such a total lack of uniformity in county election officials' enforcement of the challenged state laws as to work a separate denied of equal protection.'' Id. at 56.

    The current import of Ramirez is open to question. Although language in Ramirez suggests that criminal disenfranchisement laws are entirely outside of the protections of section 1, the Court remanded for a determination of whether California's disenfranchisement provision was being enforced in an arbitrary manner that would violate the Equal Protection Clause. Perhaps more importantly, in Hunter v. Underwood, 471 U.S. 222 (1985), the Court held that a provision of Alabama's Constitution disenfranchising persons convicted of crimes involving moral turpitude violated the Equal Protection Clause because the provision was enacted with an intent to discriminate against African-Americans and had such an effect. Id. at 233. The Court made little reference to Ramirez, stating only that it was ''confident that [section] 2 was not designed to permit the purposeful racial discrimination attending the enactment and operation of [a statute disenfranchising criminal offenders] which otherwise violates [section] 1 of the Fourteenth Amendment,'' Id. at 233.
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    After Hunter, it is clear that criminal disenfranchisement laws are not wholly exempted from the scope of section 1 of the Fourteenth Amendment. Instead, these laws may be subject to strict scrutiny insofar as they reflect discrimination on another ground, such as race. Further, the remand in Ramirez, coupled with the general principle that the Equal Protection Clause prohibits arbitrary state classifications, see, e.g., Bankers Life & Cas. Co. v. Crenshaw, 486 U.S. 71, 83 (1988), establishes that laws disenfranchising criminal offenders are at a minimum subject to rationality review. See Owens v. Barnes, 711 F.2d 25, 26–27 (3rd Cir. 1983) (rationality review applies); Sheperd v. Trevino, 575 F.2d 1110, 1114–1115 (5th Cir, 1978) (same). But see Allen v. Ellison, 664 F.2d 391, 395–98 (4th Cir. 1981) (en banc) (holding that Ramirez forecloses any equal protection challenge to the classification scheme in a disenfranchisement statute).

    As the right of convicted offenders to vote comes under the protections of section I of the Fourteenth Amendment, Congress has authority to prevent unconstitutional deprivations of this right by virtue of its enforcement power under section 5. Further, the enfranchisement of non incarcerated offenders as provided in H. R. 906 appears to be a remedial measure well within Congress' Section 5 enforcement power, even as that power was described in City of Boerne. Although the Court in City of Boerne held that the Religious Freedom Restoration Act (RFRA) exceeded Congress's enforcement powers, it also emphasized that ''[i]t is for Congress in the first instance to 'determine whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment' and its conclusions are entitled to much deference.' '' City of Boerne, 117 S.Ct.at 2l72(quoting Morgan,384 U.S. at 65l). Further, unlike RFRA, H.R.906 does not ''intru[de] at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter.'' Id. at 2170. On the contrary, H.R. 906 has a very narrow scope: it guarantees the right to vote in federal elections, leaving alone the qualifications for state and local elections, and only applies to non-incarcerated felons.
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    Perhaps more importantly, H.R. 906 differs from RFRA in that, like the provisions of the VRA upheld in Morgan and Mitchell, it targets ''a particular type of voting qualification, one with a long history as a notorious means to deny and abridge voting rights on racial grounds.'' City of Boerne, 117 S. Ct. at 2170 (internal quotations omitted); see also South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966) (''The constitutional propriety of [enforcement legislation] must be judged with reference to the historical experience which it reflects.''). The discriminatory impact of criminal disenfranchisement laws, as detailed in the findings of H. R. 906, is beyond dispute. In addition, laws disenfranchising criminal offenders frequently were enacted out of a desire to keep African-Americans from voting, as the Court found regarding Alabama's disenfranchisement provision in Hunter. See 471 U.S. at 229–33; see also Cotton v. Fordice, 157 F.3d 388, 391 (5th Cir. 1998) (finding that Mississippi ''was motivated by a desire to discriminate against blacks'' when it first enacted its constitutional provision disenfranchising certain criminal offenders, although concluding that the provision's subsequent enactment cured it of this unconstitutional motive); Baker v. Pataki, 85 F.3d 919, 938 (2d Cir. 1996) (en banc court affirming district court by an evenly divided vote) (Feinberg, J.) (''[T]here is evidence to suggest that felon disenfranchisement statutes often have been used to deny the right to vote on account of race; Andrew L. Shapiro, Challenging Criminal Disenfranchisement Under the Voting Rights Act: A New Strategy, 103 Yale L. J. 537, 540–42 & nn. 19, 25–27 (1993) (''[B]etween 1890 and 1910, many Southern states tailored their criminal disenfranchisement laws, along with other preexisting voting qualifications, to increase the effect of these laws on black citizens. . . . [S]cholars widely acknowledge the historically racist motives underlying criminal disenfranchisement in the South.''). But see Baker, 85 F.3d at 929 (Mahoney, J.) (concluding, without discussion of history of disenfranchisement statutes, that ''felon disenfranchisement laws are generally enacted for compelling, nondiscriminatory reasons''),
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    Congress could well conclude that across-the-board enfranchisement of non-incarcerated offenders is an appropriate means to enforce the Equal Protection Clause's prohibition on racial discrimination. Congress' power to enfranchise criminal offenders does not depend on whether all disenfranchisement laws are discriminatorily motivated and is not undermined by the fact that some disenfranchisement laws originally enacted with discriminatory intent have since been reenacted for nondiscriminatory motives. '' '[L]egislation which deters or remedies constitutional violations can fall within the sweep of Congress' enforcement power even if in the process it prohibits conduct which is not itself unconstitutional.' '' Lopez v. Monterey County, 119 S. Ct. 693, 703 (1999) (quoting City of Boerne, 117 S. Ct. at 2163). According to the Court ''[p]reventive measures prohibiting certain types of laws may be appropriate when there is reason to believe that many of the laws affected by the congressional enactment have a significant likelihood of being unconstitutional.'' City of Boerne, 117 S. Ct at 2170. Such a significant likelihood of unconstitutionality exists in regard to criminal disenfranchisement laws, given the history of the discriminatory intent behind many of these laws and their current discriminatory impact. See Lopez, 119 S. Ct. at 703 (affirming Congress's power to '' 'prohibit voting practices that have only a discriminatory effect' '' in jurisdictions subject to preclearance because of a history of using discriminatory tests and low minority voter turnout) (quoting City of Rome, 446 U.S. at 175). It also merits noting that in Hunter the Court left open the question of whether subsequent re-enactment for benign motives could cure a discriminatory disenfranchisement provision of its unconstitutional character. See 471 U.S. at 233. Thus, Congress could determine that the likelihood such a re-enacted provision remains unconstitutional is sufficiently great to merit remedial action without expanding the substantive protections of the Fourteenth Amendment.

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    Even aside from this concern with preventing racial discrimination, Congress could act to enfranchise non-incarcerated offenders in federal elections based simply on its determination that laws disenfranchising criminal offenders are arbitrary and irrational. Although Congress lacks the power to expand the scope of the Fourteenth Amendment, it has authority to enforce all of the Amendment's substantive protections, including the Amendment's prohibition on arbitrary and irrational state classifications. See, e.g., Migneault v. Peck, 158 F.3d 1131, 1137 (10th Cir. 1998) (''Section 5 empowers Congress to enforce the provisions of the Fourteenth Amendment, including the Equal Protection Clause. The Equal Protection Clause protects against arbitrary discrimination by the states.''), petition for cert. filed, 67 U.S.L.W. 3496 (U.S. Jan. 20, 1999) (No. 98–1178); Clark v. California, 123 F.3d 1267, 1270–71 (9th Cir. 1997) (Congress's enforcement power under the Fourteenth Amendment is not limited to protection of suspect classes), cert. denied sub nom. Wilson v. Armstrong, 118 S. Ct. 2340 (1998); see also Kimel v. Florida Bd. of Regents, 139 F.3d 1426,1433, 1441–44 (11th Cir. 1998) (concluding that Congress had power to enact the Americans with Disabilities Act (ADA), notwithstanding that the disabled are not a suspect class entitled to heightened protection under the Fourteenth Amendment), cert. granted on other grounds, 119 S. Ct. 901–02 (1999). See generally Note: Section 5 and the Protection of Nonsuspect Classes After City of Boerne v. Flores, 111 Harv. L. Rev. 1542 (1998) (concluding that after City of Boerne Congress can enact legislation to remedy or prohibit state action it finds to constitute arbitrary and invidious discrimination).

    Nor does the exemption of criminal disenfranchisement laws in section 2 limit Congress' ability to deem such laws arbitrary and irrational. Section 2 allows states to deny the franchise to those under 21 years, as well as those convicted of crimes, without suffering a reduction of its representation in Congress. Yet the Court in Mitchell held that Congress could conclude that there was no reason to prohibit those over 18 from voting in federal elections, notwithstanding complaints from dissenting Justices that ''so long as a State does not set the voting age higher than 21, the reasonableness of its choice is confirmed by [Section 2 of the] . . . Fourteenth Amendment.'' 400 U.S. at 295 n. 14 (Stewart, J., concurring in part and dissenting in part); see also id at 141–42 (Douglas, J., concurring in part and dissenting in part) (''Congress might well conclude that a reduction in the voting age from 21 to 18 was needed in the interest of equal protection.''); id. at 280 (Brennan, J., concurring in part and dissenting in part) (''Congress had ample evidence upon which it could have based the conclusion that exclusion of citizens 18 to 21 years of age from the franchise is wholly unnecessary to promote any legitimate interest the States may have in assuring intelligent and responsible voting.'').
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    H.R. 906's findings support a congressional determination that criminal disenfranchisement laws operate in an arbitrary and irrational fashion. See City of Boerne, 117 S. Ct. at 2172 (Congress's ''conclusions [regarding the need for enforcement legislation] are entitled to much deference.'') (internal quotations omitted); see also Coolbaugh v. Louisiana, 136 F.3d 430, 438 (5th Cir.) (noting that Congress did not include specific findings of unconstitutional discrimination in RFRA and distinguishing the ADA on this basis), cert. denied, 119 S. Ct. 58 (1998). These findings highlight that states differ greatly in their approaches to criminal disenfranchisement, that imposition of disenfranchisement is often not connected to the seriousness or nature of the offense, that in many states there is no effective means by which to regain the right to vote, and that federal and state offenders have differing abilities to take advantage of whatever means of regaining the vote are available. The arbitrariness of these laws for federal election purposes is particularly notable, as the differences in state approaches and the severity of some disenfranchisement laws mean that citizens are being denied one of the core privileges of U.S. citizenship, the right to vote in national elections. based simply an their state of residence.

    There is also sufficient basis on which Congress could determine that criminal disenfranchisement laws do not serve legitimate purposes. See Morgan, 384 U.S. at 653 (''[i]t was for Congress . . . to assess and weigh the various conflicting considerations'' at stake in determining whether to enact a prohibition on literacy tests); Mitchell, 400 U.S. at 249 (Brennan, J.,concurring in part) (''[Congress] need not stop once it determines that some reasonable men could believe the factual basis [necessary to support a state legislative discrimination] exists. Section 5 empowers Congress to make its own determination on the matter.''). Disenfranchisement of criminal offenders has been justified on the ground that it prevents election fraud, but disenfranchisement is rarely targeted at persons guilty of election offenses, and there are other ways of protecting elections that arc less burdensome on the right to vote. See Ramirez, 418 U.S. at 79–80 (Marshall, J., dissenting). There is also no evidence that the rate of election fraud is higher in those states that do not disenfranchise offenders or disenfranchise only offenders in prison. Cf. Mitchell, 400 U.S. at 245 (''We have not been directed to a word of testimony of other evidence that would indicate . . . that 18-year-olds in [Georgia and Kentucky] have voted any less intelligently and responsibly than their elders.''). Another frequent justification is that disenfranchisement laws protect against retributive voting and preserve the purity of the ballot box, see Murphy v. Ramsey, 114 U.S. 15, 45 (1885); Green v. Board of Elections, 380 F.2d 445, 451–52 (2d Cir. 1967), but . . . '' '[f]encing out' from the franchise a sector of the population because of the way they may vote is constitutionally impermissible.'' Carrington v. Rash, 380 U.S. 89, 94 (1965). It is also argued that disenfranchisement represents part of the penalty imposed for the crimes committed. See Owens v. Barnes, 711 F.2d at 28. But many states disenfranchise offenders permanently or for a period after they have fully served their sentences, see Losing the Vote at 1, 5, and states impose disenfranchisement on federal offenders as well as state offenders, even though the penalty for federal offenses is set by Congress.(see footnote 1)
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    Finally, it is clear that Congress is free to limit its exercise of its enforcement power to enfranchising only non-incarcerated offenders and only in respect to federal elections. Again Tashjian establishes that imposing different qualifications requirements for federal and state elections does not violate the Qualifications Clauses of Article I, section 2, and the Seventeenth Amendment. See 479 U.S. at 229. Further, as the Court stated in Morgan, the line drawn by Congress need only be ''permissible'' and ''in deciding the constitutional propriety of the limitations in such a reform measure we are guided by the familiar principles that a 'statute is not invalid under the Constitution because it might have gone farther than it did.' '' 384 US. at 657 (quoting Roschen v. Ward, 279 U.S. 337, 339 (1929)). The line drawn by Congress in H. R. 906 respects the holding in Mitchell that Congress lacked authority to directly alter the age qualification to vote in state and local elections. But even absent Mitchell's holding, Congress could easily have determined that the additional protection against racial discrimination and arbitrary state action obtained by expanding H. R. 906 to incarcerated offenders or state elections did not merit the intrusion into state and local government this expansion would cause.

III. Fifteenth Amendment

    The Fifteenth Amendment provides that ''[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.'' Section 2 of the Fifteenth Amendment, which is nearly identical to Section 5 of the Fourteenth Amendment, gives Congress ''power to enforce this article by appropriate legislation.'' Unlike the Fourteenth Amendment, the Fifteenth Amendment does not apply to all restrictions on the right to vote, but only to those that involve racial discrimination. Insofar as racial discrimination in voting is involved, however, the Court treats Congress's enforcement powers under the Fourteenth and Fifteenth Amendments as coextensive. See City of Boerne, 117 S. Ct. at 2157.
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    Congress has authority under its Fifteenth Amendment enforcement power, as it does under its Fourteenth Amendment enforcement power, to enact measures intended to protect against racial discrimination in voting. Indeed, the VRA's literacy test ban and preclearance requirements—which the Court was careful to distinguish as legitimate remedial legislation in City of Boerne—were enacted pursuant to Congress' enforcement power under the Fifteenth Amendment. In light of the history of criminal disenfranchisement laws as a means of denying the vote to African-Americans and these laws' discriminatory impact, Congress has authority under its Fifteenth Amendment enforcement power to enfranchise non-incarcerated offenders in federal elections. However, because of the restriction to the context of racial discrimination, Congress does not have authority under the Fifteenth Amendment to enfranchise non-incarcerated offenders merely on the ground that their disenfranchisement constitutes an arbitrary or irrational classification.

    Mr. CANADY. Professor Dinh.

STATEMENT OF VIET D. DINH, ASSOCIATE PROFESSOR OF LAW AND DEPUTY DIRECTOR OF ASIAN LAW AND POLICY STUDIES PROGRAM, GEORGETOWN UNIVERSITY LAW CENTER

    Mr. DINH. Thank you, Mr. Chairman, Ranking Member and members of the subcommittee. Thank you very much for inviting me to testify today. My comments, like Ms. Metzger's, will be limited to the constitutional issues raised by H.R. 906. I will not speak to the policy behind the bill, other than to note that I appreciate its objectives.

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    For the reasons detailed in my written statement and that I will only briefly outline here, I conclude that a court will not likely find that Congress has the authority to enact H.R. 906 as currently drafted. I will also share some thoughts, however, as to how the bill can be amended in order to better withstand such judicial scrutiny.

    To start, setting voter qualifications, even for Federal elections, is generally within the prerogative of the States. Article 1, section 2 of the Constitution gives the power to set qualifications for elections of the House of Representatives to the States; the 17th amendment gives States that power for Senate elections; and article 2, section 1 does so for Presidential elections.

    With that said, I note that Ms. Metzger correctly points to article 1, section 4 and the inherent power of Congress to regulate congressional and Federal elections as can be found in Boroughs and Buckley. However, these cases are consistent with the time and place and manner language of article 1, section 4, because these regulate the process of elections rather than the substance of qualifications which would run counter to the expressed delegation of authority that I have mentioned before.

    A State may not use its power to set qualifications or, indeed, any other power in order to deny a citizen's equal protection of the laws, and Congress has authority under section 5 of the 14th amendment in order to remedy or prevent State violations of equal protection.

    Now, a violation of equal protection requires some showing of discriminatory intent. Racially neutral laws that have a racially disparate impact do not violate equal protection under current Supreme Court precedent. And I think all of these principles were cogently and accurately stated by Congressman Conyers in his opening statement.
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    H.R. 906, however, is currently supported only by findings that, and I quote, ''State disenfranchisement laws disproportionately impact ethnic minorities.'' The bill omits any reference to discriminatory intent. And I think this omission is fatal under current Supreme Court precedent.

    By focusing solely on disparate impact and not discriminatory intent, H.R. 906 may be interpreted to do one of two things. First, it could be attempting to change the substantive law of equal protection from requiring discriminatory intent to only a showing of disparate impact. That Congress clearly does not have the power to do under City of Boerne, a case decided 2 years ago by the Supreme Court.

    Second, Congress can be thought to be attempting to prevent a constitutional violation. But without discriminatory intent, there can be no equal protection violation under current precedent. And so any preventive or remedial legislation would be judged not to be congruent or proportional to the constitutional injury posed or noninjury, again violating City of Boerne.

    How then does one cure the constitutional infirmity of H.R. 906? I think the answer here is easier to state, but maybe a little bit more difficult to do.

    Congress, at the very least, needs to determine that racial discrimination was the intent behind the States' felony disenfranchisement laws. To infer such intent solely from the racially disparate impact is rather difficult here, because denying a criminal the right to vote is expressly authorized in section 2 of the 14th amendment, and indeed traces back beyond the English common law to Roman law.
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    What a court would need in such circumstances is some direct evidence of discriminatory intent, and I think that the historical literature here may support a congressional determination in that regard. The court in Hunter v. Underwood relied on such historical literature—or historical testimony—in order to find that Alabama's provision was racially motivated in 1901.

    Now, in addition, however, to a finding of some discriminatory intent, the legislation must also be congruent and proportional to the constitutional injury. For example, if Congress finds that only one State had enacted its felony disenfranchisement law in order to discriminate against racial minorities, then I do not think that the sins of that one State can be visited upon its 49 siblings to justify the national prohibition contained in section 3 of H.R. 906.

    On the other hand, a determination that a majority or significant number of States were motivated by racial animus may suffice to justify the national prohibition. Alternatively, of course, you may amend H.R. 906 to prohibit felony disenfranchisement only in those States that you determine had used the policy to discriminate against racial minorities.

    I think these are some of the steps that are necessary so that H.R. 906 can achieve its objectives, if adopted, without undue risk of judicial invalidation, and I thank you.

    Mr. CANADY. Thank you, professor.

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    [The prepared statement of Mr. Dinh follows:]

PREPARED STATEMENT OF VIET D. DINH, ASSOCIATE PROFESSOR OF LAW AND DEPUTY DIRECTOR OF ASIAN LAW AND POLICY STUDIES PROGRAM, GEORGETOWN UNIVERSITY LAW CENTER

    Mr. Chairman, Ranking Member, and Members of the Committee:

    Thank you very much for inviting me to testify on H.R. 906, The Civic Participation and Rehabilitation Act of 1999. I am honored to appear and assist you with the constitutional questions raised by the proposed legislation. My comments will be limited to the authority of Congress to enact H.R. 906 as currently drafted. I will not address the wisdom of the policy embodied in the bill, other than to note that I appreciate the objectives the bill seeks to achieve.

Section 3 of H.R. 906 provides:

  The right of an individual who is a citizen of the United States to vote in any election for Federal office shall not be denied or abridged because that individual has been convicted of a criminal offense unless such individual is serving a felony sentence in a correctional institution or facility at the time of the election.

This provision would displace the laws of 32 states which limit, to some extent, the franchise of felony offenders who are no longer in prison. See H.R. 906, §2, cl. 4. The bill, therefore, raises constitutional questions about the division of legislative jurisdiction between Congress and state legislatures—specifically, the authority to prescribe qualifications of electors in Federal elections.
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    The analysis that follows concludes that the current findings of fact and purpose in H.R. 906 will not likely withstand judicial scrutiny as supporting congressional authority to enact its substantive provisions as currently drafted. After locating in the Constitution the states' general prerogative to set voter qualifications even for federal elections, I will explain why the most likely source of congressional authority to displace such state regulations—Congress' power to enforce the 14th Amendment's guarantee of equal protection—is unavailing to support H.R. 906 as currently drafted. I conclude with some thoughts as to the steps Congress could take to cure the constitutional infirmities of the bill.

I.

    The analysis starts with the recognition that prescribing franchise qualifications, even for federal elections, is generally a power that the Constitution leaves within the prerogative of the states. Article I, §2, cl. 1 (with respect to U.S. Representatives) and the 17th Amendment, cl. 1 (with respect to U.S. Senators) of the Constitution provide that ''the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.'' For presidential elections, Article II, §1, cl. 2 provides that ''[e]ach State shall appoint, in such Manner as the Legislature thereof may direct,'' its members in the Electoral College. The broad power to ''appoint'' the electors necessarily includes the subsidiary authority to prescribe the qualifications of voters who select the electors to represent the state in the Electoral College. See McPherson v. Blacker, 146 U.S. 1, 27–29 (1892).

    Article I, §4 does give Congress the authority to ''make or alter'' regulations concerning the ''Times, Places and Manner of holding Elections for Senators and Representatives.'' This provision authorizes Congress to protect the right to vote for its Members from violence and intimidation, see Ex Parte Yarborough, 110 U.S. 651, 660–62 (1884), fraudulent tabulation, see United States v. Mosely, 238 U.S. 383, 386 (1915), or other official or private abridgement, see United States v. Classic, 313 U.S. 299, 315 (1941). Although this authority could be broadly construed to include the power to prescribe voter qualifications for congressional elections, that interpretation would rest uneasily with the express constitutional grant of such power to the state legislatures, as described above. Indeed, in Oregon v. Mitchell, 400 U.S. 112 (1970), Justice Black was alone among his nine colleagues in finding in Article I, §4 congressional authority to lower the voting age from 21 to 18 in congressional elections. See id. at 117, 119–23. In any event, H.R. 906 seeks to set voter qualifications in all elections for federal office, not just congressional elections, so Article I, §4 does not provide adequate justification for the regulatory scope of H.R. 906.
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    Congress also has some inherent authority to preserve and protect the integrity of the institutions of national government. See Burroughs v. United States, 290 U.S. 534, 544–48 (1934) (finding that Congress has the power ''to protect the election of President and Vice President from corruption'') . Although this authority could be liberally construed to include the power to prescribe voter qualifications for elections to national offices, this interpretation would be at odds with the express constitutional allocation of such authority to the state legislatures. Again, Justice Black was alone in finding that Congress had the inherent authority to lower the voting age from 21 to 18 for presidential elections. See Oregon v. Mitchell, 400 U.S. at 117, 124 & n. 7.

    Finally, the right to vote in national elections is a privilege and immunity of United States citizenship protected by the 14th Amendment. Justice Douglas relied on congressional authority to enforce the 14th Amendment under section 5 thereof to uphold the abolition of residency requirements for presidential elections. See Oregon v. Mitchell, 400 U.S. at 147–49 (Douglas, J.). Although the logic of this reasoning would extend to Congress the general authority to fix voter qualifications for federal elections, a majority of the Court upheld the residency provisions on the narrower ground that residency restrictions infringe upon a citizen's right to interstate travel. See id. at 237–39 (Brennan, White, & Marshall, JJ.); id. at 285–87 (Stewart, J., joined by Burger & Blackmun, JJ.) The narrower position is consistent with the traditional understanding of the protection afforded by the Privileges and Immunities Clause, which is ''that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State.'' The Slaughter House Cases, 83 U.S. 36, 80 (1872); see also Saenz v. Roe, 526 U.S. 489 (1999). The expansive reasoning of Justice Douglas, on the other hand, would nullify the constitutional express grant of authority to state legislatures to prescribe the qualifications of electors.
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    Thus, residency requirements may infringe upon the privileges and immunities of national citizenship by giving some residents of a state the right to vote while denying the same right to other, newly arriving residents. Congress has the authority under the 14th Amendment, §5, to proscribe such infringements. By contrast, the disparity in felony disenfranchisement laws among the several states cited in H.R. 906, cls. 2–5, do not discriminate among residents of the same state (except arguably along racial lines, which I discuss below) and results simply from states independently exercising their legislative authority. The lack of uniformity among state felony disenfranchisement laws thus does not infringe the privileges and immunities of national citizenship, but rather affirms the constitutional authority of the states to prescribe voter qualifications.

II.

    Although the states' constitutional authority to prescribe voter qualifications is broad, it is not without limits. A state cannot employ this power, or any other power, to ''deny to any person within its jurisdiction the equal protection of the laws.'' U.S. CONST., Amend. 14, §1. And Congress has the power ''to enforce, by appropriate legislation,'' this guarantee of equal protection. U.S. CONST., Amend. 14, §5. This authority of Congress under section 5 of the 14th Amendment provides the most likely source of congressional power to enact H.R. 906.(see footnote 2) However, for reasons set forth below, I conclude that the current factual determinations in H.R. 906 will not likely be adjudicated to provide adequate support for the exercise of Congress' power to enforce the 14th Amendment by remedying or preventing violations of equal protection.

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    Because voting is a fundamental right of United States citizens, equal protection demands that restrictions on that right are subject to strict judicial scrutiny and will be sustained only if the restrictions are necessary to promote a compelling state interest. See Kramer v. Union Free School Dist. No. 15, 395 U.S. 621, 626–27 (1969). However, in the case of felony disenfranchisement, the equal protection guarantee of section 1 of the 14th Amendment must be read together with section 2 thereof. The latter provision imposes representational penalties on states that deny ballot access but specifically exempts denials based on ''participation in rebellion, or other crime;'' the natural implication of this exception is that states are authorized to disenfranchise those who have participated in crimes. Thus, the Supreme Court rejected an equal protection challenge to California's felony disenfranchisement law on the ground that ''those who framed and adopted the Fourteenth Amendment could not have intended to prohibit outright in §1 of that Amendment that which was expressly exempted from the lesser sanction of reduced representation imposed by §2 of the Amendment.'' Richardson v. Ramirez, 418 U.S. 24, 43 (1974).

    However, the Equal Protection Clause not only guarantees the exercise of fundamental rights but also protects citizens against purposeful discrimination on the basis of race or other suspect classifications. Thus, in Hunter v. Underwood, 471 U.S. 222 (1985), the Supreme Court unanimously invalidated a provision of the Alabama Constitution of 1901 which disenfranchised persons convicted of a misdemeanor ''involving moral turpitude.'' Although persons convicted of felonies and certain other crimes had been disenfranchised under a prior constitutional provision, Alabama in 1901 significantly expanded the list of enumerated crimes and inserted the catchall ''moral turpitude'' disqualification. These amendments disenfranchised ten times as many blacks as whites within a two year period. Although confirming its prior precedents that such racially disparate impact alone does not state an equal protection violation, id. at 227–28, the Court noted that there was ample historical evidence showing that the purpose of the 1901 convention was to ''establish white supremacy'' in the state. The Court thus found that the disenfranchisement of persons convicted of crimes involving moral turpitude was enacted with racially discriminatory intent and invalidated the Alabama constitutional provision. See id. at 229–32.
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    Section 5 of the 14th Amendment authorizes Congress to enforce the substantive guarantee of equal protection in section 1 of that amendment. In The Civil Rights Cases, 109 U.S. 3 (1883), the Court interpreted section 5 to authorize only remedial action by Congress to redress state violations of the substantive provisions of section 1. Holding that the first two sections of the Civil Rights Act of 1875 were not aimed at remedying state violations of the 14th Amendment, the Court invalidated those provisions as beyond Congress' ''corrective legislation'' power under section 5. Id. at 13–14. However, in Katzenbach v. Morgan, 384 U.S. 641 (1966), the Court adopted a significantly broader interpretation of Congress' power under section 5. Analogizing section 5 to the Necessary and Proper Clause, the Court stated that the former ''is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.'' Id. at 651. The Court suggested that such discretion includes not only the power to correct or prevent violations of section 1, but also the authority to interpret the substantive protections of section 1—independent of any judicial interpretation of those substantive protections. Id. at 649, 653–56.

    Recently, the Supreme Court clarified that, notwithstanding Katzenbach v. Morgan, Congress does not have ''the power to decree the substance of the Fourteenth Amendment's restrictions on the States.'' City of Boerne v. Flores, 521 U.S. 507, 519 (1997). Such authority to interpret the Constitution and determine the constitutionality of laws is within the province of the judiciary. See id. at 516. Section 5 only authorizes Congress to enforce the substantive protections of section 1, and ''Congress does not enforce a constitutional right by changing what the right is.'' Id. at 519. This interpretation was unanimous among the seven Justices who addressed the issue. (Justices Souter and Breyer did not reach the question.)
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    After City of Boerne, section 5 only authorizes Congress to enact statutes that remedy a violation of section 1 or, under certain circumstances, prevent a violation of section 1. Preventive legislation under section 5 is subject to scrutiny for some notion of congruence and proportionality: ''While preventive rules are sometimes appropriate remedial measures, there must be a congruence between the means used and the ends to be achieved.'' Id. at 530. Specifically, ''[p]reventive measures prohibiting certain types of laws may be appropriate when there is reason to believe that many of the laws affected by the congressional enactment have a significant likelihood of being unconstitutional.'' Id. at 532. Without such scrutiny for congruence and proportionality, the line between measures that remedy or prevent unconstitutional actions and measures that change the substance of constitutional protections is blurred, and ''legislation may become substantive in operation and effect.'' Id. at 516–20.

    In this regard, H.R. 906 finds that ''State disenfranchisement laws disproportionately impact ethnic minorities.'' H.R. 906, §2, 2(C). Specifically:

Thirteen percent of the African American adult male population, or 1,400,000 African American men, are disenfranchised. Given current rates of incarceration, three in ten of the next generation of black men will be disenfranchised at some point during their lifetime. Hispanic citizens are also disproportionately disenfranchised since they are disproportionately represented in the criminal justice system.

H.R. 906, §2, 6. There are no findings whether state felony disenfranchisement laws were enacted with a racial motive or with discriminatory intent and purpose.
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    The racially disproportionate impact of facially neutral laws, standing alone, does not state a violation of equal protection under section 1 of the 14th Amendment. ''[R]acially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.'' Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265 (1977); see also Washington v. Davis, 426 U.S. 229, 239 (1976); City of Mobile v. Bolden, 446 U.S. 55, 62 (1980) (same for 15th Amendment). As the Court made clear in Hunter v. Underwood, although the racially disparate impact of felony disenfranchisement laws may be relevant in finding discriminatory intent, it cannot substitute for a showing of discriminatory intent, which remains the touchstone of a constitutional violation.

    By displacing state felony disenfranchisement laws supported only by a determination that such laws have a disproportionate impact on ethnic minorities and not that they were enacted with a racially discriminatory intent, H.R. 906 is fatally flawed. First, H.R. 906 could be characterized as a statement by Congress that racially disparate impact is sufficient to state a violation of the Equal Protection Clause. Such a statement would contradict the Court's requirement of discriminatory intent in Arlington Heights and Washington v. Davis and thus effect a substantive change in the meaning of equal protection. After City of Boerne, Congress does not have the power under section 5 of the 14th Amendment to change the substantive meaning of section 1 therein. Second, even if H.R. 906 is characterized as an effort to remedy or prevent a violation of section 1, the mere finding that state felony disenfranchisement laws disproportionately affect minorities does not state an equal protection violation, which requires discriminatory intent. Absent such a putative violation, the displacement of state laws can in no way be congruent or proportional to any constitutional injury sought to be remedied or prevented, as required by City of Boerne.
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    To be sure, the Court in City of Rome v. United States, 446 U.S. 156 (1980), upheld the Voting Rights Act's prohibition on practices that had a racially disparate impact, even though the City of Rome showed that it did not have any racially discriminatory motive. Even though discriminatory motive or intent is required to state a constitutional violation, ''under §2 of the Fifteenth Amendment Congress may prohibit practices that in and of themselves do not violate §1 of the Amendment, so long as the prohibitions attacking racial discrimination in voting are 'appropriate.' '' Id. at 177. The Court's decision, however, speaks to the means with which Congress chooses to remedy or prevent a constitutional violation; it does not state that racially disparate impact is itself a constitutional violation justifying remedial or preventive action by Congress. See id. (''[B]ecause electoral changes by jurisdictions with a demonstrable history of intentional racial discrimination in voting create the risk of purposeful discrimination, it was proper to prohibit changes that have a discriminatory impact.'').(see footnote 3)

III.

    Although a court would likely find that Congress does not have the constitutional authority to enact H.R. 906 as currently drafted, the foregoing analysis suggests that, under certain circumstances and with the appropriate determinations, section 5 of the 14th Amendment may authorize a prohibition on felony disenfranchisement similar to that expressed in section 3 of H.R. 906. In order to assist your deliberations and continued action in pursuit of the bill's objectives, I briefly sketch here the steps that could be taken in order to support the constitutionality of H.R. 906.
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    The cure for the constitutional infirmity of H.R. 906 lies firstly in a congressional investigation and determination that racially discriminatory motives were the substantial or motivating factor behind the states' felony disenfranchisement laws. Although the racially disparate impact of such laws can be evidence of impermissible motives, discriminatory intent remains the touchstone of a constitutional violation justifying remedial or preventive action by Congress under section 5 of the 14th Amendment.

    Inferring discriminatory intent only from the racially disparate impact of felony disenfranchisement law is made much more difficult by the fact that denying the right to vote based on participation in crime was expressly mentioned and implicitly authorized by section 2 of the 14th Amendment. Moreover, as the Court noted in Richardson v. Ramirez, ''at the time of the adoption of the Amendment, 29 States had provisions in their constitutions which prohibited, or authorized the legislature to prohibit, exercise of the franchise by persons convicted of felonies or infamous crimes.'' 418 U.S. at 48 (citations omitted). Finally, criminal disenfranchisement has a jurisprudential pedigree that traces back to the common law and beyond, to Roman law. See ROSCOE POUND, IV JURISPRUDENCE 363–64 (1959). All these independent sources suggest that legitimate justifications for criminal disenfranchisement pre-existed any motive to employ them for racially discriminatory purposes after the adoption of the Reconstruction Amendments.

    However, where there is some direct evidence of discriminatory intent in addition to racially disparate impact, there is little question that a constitutional violation exists and Congress may act to remedy such constitutional violation. Thus, even though Alabama's felony disenfranchisement law predated the Reconstruction Amendment, see ALA. CONST., Art. 6, §5 (1819), the racial animus that motivated the 1901 amendments sufficed for an equal protection violation. It is of little moment that such discriminatory intent only existed at the time of enactment or amendment, and that the felony disenfranchisement laws can be independently justified at present with legitimate state interests. As the Court stated in Hunter v. Underwood, ''Without deciding whether §182 would be valid if enacted today without any impermissible motivation, we simply observe that its original enactment was motivated by a desire to discriminate against blacks on account of race and the section continues to this day to have that effect.'' 471 U.S. at 233.
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    Some evidence that states had enacted felony disenfranchisement laws or amended existing ones with the purpose of abridging or denying minority citizens' right to vote after the Reconstruction Amendments can be found in the historical literature. See, e.g., J. Morgan Kousser, The Undermining of the First Reconstruction: Lessons for the Second, in MINORITY VOTE DILUTION 27 (Chandler Davidson ed., 1984); C. VANN WOODWARD, ORIGINS OF THE NEW SOUTH, 1877–1913 (1971). The Supreme Court validated the use of such historical evidence in order to show discriminatory purpose in Hunter v. Underwood, 471 U.S. at 228–29, and Congress has wider discretion in determining whether there is a factual basis supporting a constitutional violation when it legislates under section 5 of the 14th Amendment. See City of Boerne, 521 U.S. at 528, 536.

    If the state law disenfranchising felons existed prior to the adoption of the Reconstruction Amendments and was not amended thereafter, however, evidence of discriminatory intent independent of racially disparate impact may prove elusive. Prior to the Reconstruction Amendments, there was no need to use criminal disenfranchisement in order to discriminate against blacks, since they could be disenfranchised directly. Discriminatory intent thus can be found, if at all, only in the failure to repeal the pre-existing criminal disenfranchisement provisions. Absent some repeal proposal which was rejected for racially discriminatory reasons, such intent is hard to infer, and disparate impact standing alone does not suffice to support congressional action. Likewise, if a criminal disenfranchisement law was enacted after the Reconstruction Amendments but without any hint of discriminatory intent or purpose, the racially disproportionate effect of the law alone does not provide adequate justification for congressional action.

    A congressional determination that some state felony disenfranchisement laws were motivated by racial animus, while necessary, may not be sufficient to justify a nation-wide prohibition of such laws. City of Boerne requires some sense of congruence and proportionality between the constitutional injury to be remedied or prevented and the means employed by Congress. Although the opinion is, at best, cryptic on what would suffice as congruent and proportional, it seems reasonable to assume that the sins of, say, only one state cannot be visited on all of its 49 siblings and thus that a national prohibition would not be justified. After all, City of Rome validated the prohibition on electoral changes that had a racially disparate impact only in those specific states where ''a demonstrable history of intentional racial discrimination in voting create the risk of purposeful discrimination.'' 446 U.S. at 177.(see footnote 4) On the other hand, if Congress determined that a majority or some significant number of state felony disenfranchisement laws were motivated by racial animus, then the judicial deference to Congress' determination '' 'whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,' '' City of Boerne, 521 U.S. at 536 (quoting Katzenbach v. Morgan, 384 U.S. at 651), may justify the overinclusivity of a national prohibition. And, of course, the substantive provisions of H.R. 906 can be amended to displace felony disenfranchisement laws only in those states where Congress determines that such laws were motivated by racial animus.
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    The constitutional roadmap that I have sketched here draws an admittedly difficult path to traverse. But it is a path that the Court has laid out in order to preserve and protect the delicate balance of state and federal authority—the balance that Justice Black famously called ''Our Federalism.'' Younger v. Harris, 401 U.S. 37, 44 (1971). And it is a path that I recommend to you to alleviate the constitutional infirmity of H.R. 906 so that, if adopted, its worthwhile objectives would be achieved without undue risk of judicial invalidation.

    Mr. CANADY. Mr. Shelton

STATEMENT OF HILARY O. SHELTON, DIRECTOR TO THE WASHINGTON BUREAU OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE

    Mr. SHELTON. Thank you, Chairman Canady and distinguished Members of the panel, for inviting me to testify today on this important subject. I would especially like to thank Congressman John Conyers for all of his work on this issue, as well as Ranking Member Watt for helping to bring this issue to the attention of the Nation.

    My name is Hilary O. Shelton, and I currently serve as director of the Washington Bureau of the National Association for the Advancement of Colored People, the NAACP. The NAACP is the Nation's oldest and, with over 600,000 card carrying members and 1,700 branches Nationwide, largest grassroots civil rights organization. I am here today to share with you our association's strong support for H.R. 906, the Civic Participation and Rehabilitation Act of 1999. This legislation will restore voting rights to ex-offenders. In fact, in February of this year, the NAACP national board of directors voted unanimously to endorse H.R. 906 and make it one of the association's top legislative priorities for the 106th Congress.
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    H.R. 906 is crucial to the NAACP for a number of reasons. Voting is a fundamental American right, and the fact that almost 4 million Americans, or 1 in 50 American adults, are not allowed to vote is an insult to our Constitution, our Bill of Rights, and our democracy. Many of these Americans have paid their debt to society and want to reintegrate fully into their communities. Yet in too many States, the law bars them from participating in what may well be our most basic American responsibility of citizenship.

    As you have heard from previous speakers, though this legislation would have a wide-ranging impact on every ethnic group, it affects ethnic minority Americans at a vastly disparate rate. In fact, 13 percent of all African American males today, that is 1.4 million American men, are prohibited from voting.

    There are several reasons for this lopsided representation, and the question of disproportionate minority confinement could and probably should be the subject of another hearing in and of itself. However, one of the primary reasons that African Americans find themselves disproportionately barred from the ballot box is our national so-called war on drugs. Our country's effort over the last decade to eliminate the scourge of drugs from our society has had a much more severe impact on African Americans and other ethnic minorities than on their Caucasian counterparts. Between 1985 and 1995, there was a 707 percent increase in the number of African Americans in State prison for a drug-related offense, compared to 306 percent increase for Caucasians over the same period. Furthermore, although African Americans make up just over 12 percent of the U.S. population, 15 percent of our country's drug users and 17 percent of cocaine users, African Americans represent 33 percent of all Federal drug convictions and 57 percent of all Federal cocaine convictions.
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    But the war on drugs is not the only cause of the disproportionate minority disenfranchisement. According to Justice Policy Institute, as we convict and incarcerate more and more people for nonviolent offenses, African Americans and Hispanic Americans comprise a growing number of people we send to prison. In the 1930's, 75 percent of the people entering State and Federal prisons were Caucasian, which roughly reflects the demographics of our Nation. As of March 1999, ethnic minorities represent 70 percent of all new prison admissions and more than half of all Americans behind bars.

    Thus, African Americans and other Americans of color are being kept out of the electoral process at an unequal rate even after they have paid their debt to society.

    Also troubling to our organization is the fact that State laws vary dramatically when it comes to defining a felony and that States have a very different process through which an ex-felon must go to regain his or her civic rights. It is, therefore, often difficult for ex-offenders to know what, if anything, they can do to regain their right to vote.

    The extreme policies of some States have even led to real problems. Two cases in point are Alabama and Florida. In both of these States, more than 30 percent of all African American men have lost their right to vote forever. Some are seemingly minor and certainly nonviolent offenses. In Alabama, for example, it is possible to lose your right to vote forever if you write one bad check. Most States require specific gubernatorial action; and in 16 States, Federal ex-felons need a presidential pardon to regain their right to vote.

    America expects felons to come out of the penal system prepared to act as productive members of society. We believe ex-felons should support their families and their communities. This is not an unreasonable expectation, but we need in turn to support them in their efforts. Because voting is such an integral part of being a productive member of American society, we should be encouraging ex-felons to vote, not prohibiting them.
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    In my travels across the Nation, I have had the opportunity to talk to many ex-felons, some of whom committed crimes that never even warranted jail time, who are deeply troubled by the fact that they are not able to participate in our Nation's democratic process. As Joe Loya, a disenfranchised ex-offender so eloquently said, ''without a vote, a voice, I am a ghost inhabiting a citizen's space. I want to walk calmly into a polling place with other citizens to carry my placid ballot into the booth, check off my choices and drop my conscience in the common box.''

    Throughout the world, the right to vote is seen as one of the paramount signs of personal liberty and freedom. Few Americans were not touched by the picture of Black South Africans waiting in line sometimes for several days to vote for the first time in their lives. It is hypocritical of the United States to hold the right to vote up as a real test of true democracy and yet fail that very test here at home.

    Felony voting restrictions are the last vestige of voting prohibition in the United States. When the U.S. was founded, only wealthy white men were allowed to vote. Women, ethnic minorities, those who were illiterate and the poor were excluded. With continued national enlightenment, these restrictions have all been eliminated over time, often with much debate and rancor. I am certain that the issue of allowing ex-felons to vote, once they are released into the society, is not one that will be settled without a fair amount of heated debate. Yet I have faith that the morally correct path blazed by the inspiration of a more democratic union shall ultimately prevail, and that this imperfection in our society, too, shall be corrected.

    I would like to take just a minute to focus on two elements of H.R. 906 that I think are important. First, the legislation is Constitutional. As we have heard from previous witnesses, this bill is carefully crafted so as to avoid any constitutional tangle. If any members of this subcommittee would like any further proof, we also have opinions of several other constitutional scholars who all agree that this legislation passes muster.
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    Secondly, I would like to emphasize that this bill very specifically provides that Americans who have been convicted of a felony have their voting rights restored only upon release. The title of H.R. 906 is the Civic Participation and Rehabilitation Act of 1999. The focus of this legislation to help men and women who have served their time successfully reintegrate themselves into our society. H.R. 906 establishes a national, uniform policy under which all Americans, after they have served their time in prison, may register to vote in Federal elections and thus take one important step toward reestablishing himself or herself as a productive member of our society.

    Because voting is such an integral part of being a productive member of the American society, the NAACP has and will continue to support the work tirelessly of Congressman John Conyers' legislation, the Civic Participation and Rehabilitation Act of 1999. I hope that every member of this panel and indeed this Congress will take a look at this bill. I have also included in my testimony two charts that I feel do a good job of illustrating the disparity between States as well as the severity of the problem facing African Americans. I hope that all the members of this panel will review these graphs and consider their impact on society.

    Thank you again, Chairman Canady and Ranking Member Watt, for taking the time to address this issue today. I am willing to answer any questions you have at this point, and I am available at any time in the future to discuss this problem in greater length. Thank you.

    Mr. CANADY. Thank you, Mr. Shelton.

    [The prepared statement of Mr. Shelton follows:]
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PREPARED STATEMENT OF HILARY O. SHELTON, DIRECTOR TO THE WASHINGTON BUREAU OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE

    Thank you, Chairman Canady and distinguished members of this panel for inviting me to testify before you today on this important subject. I would especially like to thank Congressman John Conyers for all of his work on this issue, as well as Ranking Member Watt for helping to bring attention to this issue.

    My name is Hilary 0. Shelton and I currently serve as the Director of the Washington Bureau of the National Association for the Advancement of Colored People, or the NAACP. The NAACP is the nation's oldest and, with over 600,000 card-carrying members and 1,700 branches nationwide, largest grassroots civil rights organization. I am here today to share with you our association's strong support of H.R. 906, the ''Civic Participation and Rehabilitation Act of 1999.'' This legislation would restore voting rights to ex-felony offenders. In fact, in February of this year the NAACP national Board of Directors voted unanimously to endorse H.R. 906 and make it one of the association's top legislative priorities for the 106th Congress.

    H.R. 906 is crucial to the NAACP for a number of reasons. Voting is a fundamental American right, and the fact that almost 4 million Americans, or 1 in 50 American adults, are not allowed to vote is an insult to our Constitution and to the Bill of Rights. Many of these Americans have paid their debt to society and want to be reintegrated fully into their communities. Yet in too many states, the law bars them from participating in what may well be our most basic American responsibility of citizenship.

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    As you have heard from previous speakers, though this legislation would have a wide-ranging impact on every ethnic group, it affects ethnic minority Americans at a vastly disparate rate. In fact, 13% of all African American males today—1.4 million American men—are prohibited from voting.

    There are several reasons for this lopsided representation, and the question of disproportionate minority confinement could and probably should be the subject of another hearing in and of itself. However, one of the primary reasons that African Americans find themselves disproportionately barred from the ballot box is our national so-called ''war on drugs.'' Our country's effort over the last decade to eliminate the scourge of drugs from our society has had a much more severe impact on African Americans and other ethnic minorities than on their Caucasian counterparts. Between 1985 and 1995, there was a 707% increase in the number of African Americans in state prison for a drug related offense, compared to a 306% increase for Caucasians over the same period. Furthermore, although African Americans make up only 12 percent of the U.S. population, 15 percent of our country's drug users, and 17 percent of cocaine users, African Americans represent 33 percent of all Federal drug convictions and 57percent of all Federal cocaine convictions.

    But the war on drugs is not the only cause of the disproportionate minority disenfranchisement. According to the Justice Policy Institute, as we convict and incarcerate more and more people for nonviolent offenses, African Americans and Hispanic Americans comprised a growing number of the people we send to prison. In the 1930s, 75 percent of the people entering state and federal prison were Caucasian, which roughly reflected the demographics of our nation. As of March, 1999, ethnic minorities represent 70 percent of all new prison admissions, and more than half of all Americans behind bars.
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    Thus African Americans and other Americans of color are being kept out of the electoral process at an unequal rate, even after they have paid their debt to society.

    Also troubling to our organization is the fact that state laws vary dramatically when it comes to defining a felony, and that states have very different processes through which an ex-felon must go to regain his or her civic rights. It is therefore often difficult for ex-offenders to know what, if anything; they can do to regain their right to vote. The extreme policies of some states have even led to real problems. Two cases in point are Alabama and Florida. In both of these states more than 30 percent of all African American men have lost their rights to vote forever, some for seemingly minor and certainly non-violent offenses. In Alabama, for example, it is possible to lose your right to vote forever if you write one bad check. Most states require specific gubernatorial action, and in 16 states federal ex-felons need a presidential pardon to regain their voting rights.

    America expects felons to come out of our penal system prepared to act as productive members of society. We believe ex-felons should support their families and their communities. This is not an unreasonable expectation, but we need in turn to support them in their efforts. Because voting is such an integral part of being a productive member of American society, we should be encouraging ex-felons to vote, not prohibiting them.

    In my travels across the nation, I have had the opportunity to talk to many ex-felons, some of whom committed crimes that never even warranted jail time, who are deeply troubled by the fact that they are not able to participate in our nation's democratic process. As Joe Loya, a disenfranchised ex-offender so eloquently said, ''without a vote, a voice, I am a ghost inhabiting a citizen's space ... I want to walk calmly into a polling place with other citizens, to carry my placid ballot into the booth, check off my choices, then drop my conscience in the common box.''
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    Throughout the world, the right to vote is seen as one of the paramount signs of personal liberty and freedom. Few Americans were not touched by the pictures of Black South Africans waiting in line, sometimes for several days, to vote for the first time in their lives. It is hypocritical of the United States to hold the right to vote up as a real test of true democracy, and yet to fail that very test here at home.

    Felony voting restrictions are the last vestige of voting prohibitions in the United States. When the U.S. was founded only wealthy white men were allowed to vote. Women, ethnic minorities, those who were illiterate and the poor were excluded. With continued national enlightenment, these restrictions have all been eliminated over time, often with much debate and rancor. I am certain that the issue of allowing ex-felons to vote once they are released into society is not one that will be settled without a fair amount of heated debate. Yet I have faith that the morally correct path, blazed by the inspiration of a more democratic union, shall ultimately prevail, and that this imperfection in our society too shall be corrected.

    I would like to take just a minute to focus on two elements of H.R. 906 that I think are important. First, the legislation is constitutional. As we have heard from a previous witness, this bill is carefully crafted so as to avoid any constitutional tangles. If any members of this subcommittee would like any further proof, we also have opinions of several other constitutional scholars who all agree that this legislation passes muster.

    Secondly, I would like to emphasize that this bill very specifically provides that Americans who have been convicted of a felony may have their voting rights restored only upon release. The title of H.R. 906 is the ''Civic Participation and Rehabilitation Act of 1999.'' The focus of this legislation is to help men and women who have served their time successfully reintegrate themselves into society. H.R. 906 establishes a national, uniform policy under which all Americans, after they have served their time in prison, may register to vote in federal elections and thus take one important step towards reestablishing himself or herself as a productive member of our society.
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    Because voting is such an integral part of being a productive member of American society, the NAACP has and will continue to support and work tirelessly for Congressman Conyers' legislation, the ''Civic Participation and Rehabilitation Act of 1999.'' I hope that every member of this panel, and indeed of this Congress, will take a look at this bill. I have also included in my testimony two charts that I feel do a good job of illustrating the disparity between states as well as the severity of the problem facing African Americans. I hope that all the members of this panel will review these graphs and consider their impact on society.

    Thank you again, Chairman Canady and Ranking Member Watt, for taking the time to address this issue today. I am willing to answer any questions you may have at this point, and I am available at any time in the future to discuss this problem at greater length.

62486a.eps

    Mr. CANADY. Mr. Gaziano.

STATEMENT OF TODD F. GAZIANO, SENIOR FELLOW IN LEGAL STUDIES, THE HERITAGE FOUNDATION

    Mr. GAZIANO. Thank you. Good morning, Mr. Chairman and members of the subcommittee. I will confine most of my remarks to the constitutionality of H.R. 906, which I think is certainly unconstitutional and beyond any repair, but I do want to make two brief policy points regarding the legislation first.

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    Criminal disenfranchisement laws traditionally have served two purposes. The first and unmentioned purpose today so far is that they are part of the sanction for a specified State crime. The legitimate State purpose of setting the proper sanction to fit the crime would be partially frustrated with the enactment of H.R. 906. It is bad policy and probably unconstitutional in itself for Congress to try to lessen the sanction for State crime.

    The other traditional reason for criminal disenfranchisement laws is based on the notion that a large and important part of government is devoted to law enforcement. Criminal disenfranchisement laws allow citizens to decide law enforcement issues without the dilution of voters who are deemed either to be less trustworthy or to have waived their right to participate in those decisions.

    At first blush, it seems like a laudable goal to try to eliminate disparities that criminal disenfranchisement have in some communities versus others, but it is unclear to me as a policy matter what is best for those communities most affected by these laws. In general, those communities that have a higher crime rate have a higher rate of disenfranchised criminals living among them.

    We heard a rather humorous hypothetical earlier about the voting lobby trying to eliminate the penalty or the sentence for burglary, but in reality, decisions about the proper level of funding for the police force, community policing versus another type of policing, policing versus education, are inherent issues in any civic society. For minorities who are rightly concerned about intentional vote dilution in other contexts should also be concerned about vote dilution of law-abiding citizens in those communities who are trying to grapple with crime.

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    Moving now to the constitutional analysis of this legislation. As Mr. Clegg correctly pointed out and as this subcommittee especially knows, if Congress is not acting pursuant to a specific grant of powers set forth in the Constitution, this legislation is unconstitutional, and as members of this subcommittee are also painfully aware, the rules have changed somewhat since United States v. Lopez and since City of Boerne regarding respect of Federal courts are showing toward this bedrock principle.

    So let me turn to the only two possible grants of authority you have. The first is under Article 1. Well, I don't think it is even close under Article 1. There is no textual grant of authority to Congress in Article 1 to override nondiscriminatory State voting qualifications. There is no Supreme Court precedent recognizing such authority. Only have we ever had one vote of one justice at one time in one old case that may not be good law anymore, and there are three constitutional provisions recognizing that this is an inherent State power.

    I admire the work of the Brennan Center because they are so creative, and you keep me on my toes, but the very creative theory I heard that article 1, section 4 can be read only to prevent this particular evil, while being very creative, just doesn't work. Article 1, section 4, power may be brought in Congress to prevent fraud and set other manner of elections, but it can't be read to overrule those other three specific constitutional grants of power to the States to decide voters' qualifications even for Federal elections. There is the 17th amendment clause. There is the article 1, section 2 clause. There is the 14th amendment, section 2 clause. In short, there are some fascinating constitutional issues that are close, and there are some that no reasonable high school student should disagree with, and this is the latter.

    Let me turn to the more difficult, I think, constitutional question, and that is whether Congress has power under the 14th or 15th amendments to enact this legislation. Let me state, as everyone has, intentional discrimination, disenfranchisement of felons for the purpose of reaching a racial result is clearly unconstitutional, and any surviving statute from an era where the statutes were modified should be struck down, but this makes H.R. 906 wholly unnecessary because the Supreme Court has struck down one such case, and the courts are available in any other such case.
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    Let me actually speak to the record because Professor Dinh gave some hypotheticals that might support your authority, and he said look to the literature. Let me tell you what the literature actually shows. There is some historical evidence that racial animus may have played a part in the passage or revision of a handful of States criminal disenfranchisement laws 50 to 100 years ago. At least two of those States either repealed the offending provision or changed it when suit was filed. In Alabama, as we know, the Supreme Court struck down one part of their criminal disenfranchisement law which again is proof that H.R. 906 is unnecessary.

    It is unclear whether there is any provision of any State law that survives that was passed because of racial animus. If there is, it needs to be struck down, but I defer to Mr. Mauer on one finding, his prepared testimony that there is no surviving State statute where animus toward a racial group was the deciding factor.

    Let me continue just a little bit further under the Boerne decision. Boerne probably changes your rules, but maybe you could still pass a prophylactic ban against literacy tests. I think the reason you might still be able to do that after Boerne is because there is a special history of pervasive pattern and practice, and the clear, invidious history of literacy tests. More importantly, literacy tests were only used in the modern era, only used in the modern era as a tool of intentional discrimination. So I am not sure, but I think that prophylactic ban on literacy tests, given the special history of that device, might still be constitutional.

    In contrast, Congress' power to pass H.R. 906 and overrule State felony disenfranchisement laws lacks all of the criteria necessary for Congress to act under Section 5. H.R. 906, as currently written of course, doesn't even pretend that felony disenfranchisement laws are a pretextual device any more. But I don't think Congress could make that finding. There are 46 States with such laws, and the variety of such laws show no correlation to States with histories of racial discrimination.
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    Moreover, section 2 as we know of the 14th amendment recognizes that States have perfectly good reasons to disenfranchise those engaged in rebellion or other crimes. It would certainly be odd to argue that Congress could find that no felony disenfranchisement statute passes muster under the 14th amendment, when the 14th amendment itself acknowledges otherwise.

    But finally, and this I think is why, as laudable a goal as it may seem to you to pass this legislation, I don't think that you can make the proper findings, given the facts of these States. Even if the evidence shows there are two States or three States that survive today, whose statutes survive from an era based on racial animus. In Boerne, the Supreme Court stated that before you can invoke your section 5 power under the 14th amendment and, by analogy, your section 2 power under the 15th amendment, there must be a congruence and proportionality between the constitutional injury to be prevented or remedied and the means adopted to that end, overruling the laws of all of the other States and preventing any of the 50 States from thereinafter enacting the felony disenfranchisement statute that, as we know, has generally been used for nonpretextual reasons is not proportional to any constitutional violation identified in the bill.

    There being no other arguable constitutional basis for Congress to enact H.R. 906 it must be concluded it is unconstitutional. Thank you.

    Mr. CANADY. Thank you, Mr. Gaziano.

    [The prepared statement of Mr. Gaziano follows:]
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PREPARED STATEMENT OF TODD F. GAZIANO, SENIOR FELLOW IN LEGAL STUDIES, THE HERITAGE FOUNDATION

    Good morning Mr. Chairman and Members of the Subcommittee. Thank you for the opportunity to testify on H.R. 906. For the record, I am a Senior Fellow in Legal Studies at The Heritage Foundation, a nonpartisan research and educational organization. I am a graduate of the University of Chicago Law School and a former law clerk to the U.S. Fifth Circuit Court of Appeals. I also served in the U.S. Department of Justice, Office of Legal Counsel, during different periods in the Reagan, Bush, and Clinton Administrations.

    H.R. 906 would purport to overrule most state laws that disenfranchise felons and other criminals and grant them the right to vote in federal elections, except for those then ''serving a felony sentence in a correctional institution or facility at the time of the election.'' Thus, the bill would purport to overrule certain state laws in order to grant the vote to felons who are on parole or probation, or who otherwise are still serving part of their sentence under supervision such as home detention. The bill would purport to overrule other state laws in order to grant the vote to those in jail for serious misdemeanors at the time of the election. And the bill would also purport to overrule some state laws that permanently disenfranchise individuals who commit serious violent felonies (absent some form of clemency).

    I will confine most of my remarks to the constitutionality of H.R. 906, which I think is certainly unconstitutional. But I do want to make two brief policy points regarding the legislation.

UNINTENDED EFFECTS OF H.R. 906
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    Criminal disenfranchisement laws traditionally have served two purposes. The first is that they are part of the sanction for specified state crimes. This legitimate state purpose of setting the proper sanction to fit the crime would be partially frustrated with the enactment of H.R. 906. It is bad policy, and probably unconstitutional in itself, for Congress to try to lessen the sanction for state crimes.

    The other traditional reason for criminal disenfranchisement laws is based on the notion that a large and important part of government is devoted to law enforcement. Criminal disenfranchisement allows citizens to decide law enforcement issues without the dilution of voters who are deemed either to be less trustworthy or to have waived their right to participate in those decisions.

    The bill's findings note that state disenfranchisement laws affect certain communities more than others. At first blush, it seems like a laudable goal to try to eliminate such a disparity, but it is unclear to me as a policy matter what is best for communities most affected by these laws. In general, those communities that have a higher rate of crime have a higher rate of disenfranchised criminals living among them. The bill purports to correct this perceived problem by significantly increasing the number of convicted criminals who can vote in federal elections. Because dual voting records are quite hard to maintain, it would thereby increase the number of convicted criminals who would be able to vote in state and local elections. Given that many poor and minority communities are ravaged by crime, the proposed solution could have a perverse effect on the ability of law abiding citizens to reduce the deadly and debilitating crime in their communities. At least on the crime issue, it could be argued that those communities that currently have the highest level of state disenfranchisement are the most protected by those laws and would be the most adversely affected by the vote of ''unreformed'' convicts in their communities. The fact that so many states have these felony disfranchisement laws is strong evidence that many citizens do not want their ability to influence crime control decisions to be diluted by convicted felons on parole or otherwise.
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THE CONSTITUTIONAL FRAMEWORK OF ANALYSIS

    The constitutional analysis of any congressional bill is bounded by certain bedrock principles, the most important of which is as follows: if the Congress is not acting pursuant to a specific grant of power set forth in the Constitution, the legislation is unconstitutional. This is because the national government is one of limited and enumerated powers—as opposed to one of inherent powers. No citation to Supreme Court authority is necessary for this proposition, although many are available. But the federal courts' interest in this principle since the Supreme Court struck down the federal gun free school zone statute in United States v. Lopez, 115 S.Ct. 1624 (1995) is especially noteworthy.

    As this Subcommittee knows, this aspect of federalism is not just wise policy to be followed whenever Congress deems it appropriate; it is specifically designed to limit Congress's appetite to encroach on state power and individual liberty. This fundamental principle of federalism is recognized not only in the Tenth Amendment, but also in the text and structure of Articles I through III, and it is strongly reinforced in the debates on the Constitution. Although the Federalists and Anti-federalists disagreed on the precise scope of federal power and the need for a Bill of Rights, everyone agreed that the national government could only exercise those powers enumerated in the written Constitution.

    Of course, Members of this Committee take their oath to uphold the Constitution especially seriously or you would not schedule hearings of this nature and sit through our testimony on the constitutionality of pending bills. But some public misconceptions remain about every Member's responsibility to ensure that Congress does not attempt to pass unconstitutional legislation. As you know, it is not permissible for Congress to vote for such legislation with the expectation that the courts will make the constitutional determinations. Although the courts have their own obligation to make such determinations in a case or controversy properly before them, it is no less the duty of Congress to adhere to and be bound by the Constitution. Although many cite Marbury v. Madison for a contrary view, the opinion of Chief Justice John Marshall recognizes that each branch of government has the same duty in its own realm to act constitutionally and pass on constitutional questions. It was simply Marshall's view that the courts, no less than Congress, shared in this responsibility.
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    So that no person thinks my general approach to constitutional analysis is invoked selectively against this bill, let me state clearly that I think the current majority and minority in Congress are almost equally guilty of forgetting these principles of constitutional law when a popular bill is before them. I have opposed many well-meaning bills in recent years solely because they were beyond the constitutional authority of Congress to enact. This bill is no different.

CONSTITUTIONAL ANALYSIS OF H.R. 906 UNDER ARTICLE I

    Congress has no power to enact H.R. 906 under Article I of the Constitution, and the question is not a close one. There is no textual grant of authority to Congress in Article I to override nondiscriminatory state voting qualifications; there is no Supreme Court precedent recognizing such a power; and there are three constitutional provisions that recognize that this is an inherent state power.

    Article I, section 2 provides that voters for Members of the House of Representatives ''shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.'' The Seventeenth Amendment contains the exact same phrase with respect to voters for U.S. Senators. This provision essentially requires states to have the same qualifications for voters in state and national elections (at least with regard to legislative elections), but it also is an explicit recognition that states have the authority to set those voting qualifications—even for Members of Congress.

    Other provisions of the Constitution prohibit voting qualifications based on race, sex, and young adult status, but Section 2 of the Fourteenth Amendment implicitly recognizes that states may deny the franchise to those who have engaged in ''rebellion, or other crime.'' Thus, the Constitution recognizes the general power of states to set voting qualifications in Article I and the Seventeenth Amendment and the specific power of states to disenfranchise those convicted of a crime in the Fourteenth Amendment.
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    It could be argued that these three provisions of the Constitution recognize the states' inherent authority to establish voting qualifications and disenfranchise felons rather than provide a grant of such power to the states, but that is of no less constitutional significance. Like the operation of the Eleventh Amendment, Article I, the Seventeenth Amendment, and the Fourteenth Amendment provide powerful evidence that this state power was understood to be an aspect of state sovereignty that predated the Constitution and always remained with the states. See The Federalist, Nos. 52 and 60 (where James Madison and Alexander Hamilton concur with this understanding of Article I); Alden v. Maine, 119 S. Ct. 2240, 2260–61 (1999) (recognizing that aspects of state sovereignty are of no less constitutional significance if they are proven by the existence of the Eleventh Amendment rather than protected by its text).

    Article I, section 4 cannot reasonably be read as a grant of power to Congress to define the qualifications of voters in national elections. Article I, section 4 allows the states to establish the ''Times, Places and Manner of holding Elections for Senators and Representatives,'' except that ''Congress may at any time by Law make or alter such Regulations. . . .'' ''[S]uch Regulations'' refers only to the ''Times, Places, and Manner'' of holding congressional elections—not to voting qualifications. Article I, section 4 simply cannot be read to overrule the plain meaning of section 2 and the same phrase in the Seventeenth Amendment. Although it is still a fashionable theory on some university campuses and among some special interest groups to argue that words are infinitely malleable, that approach would render a written constitution of no particular value. Members of Congress and judges faithful to their oath cannot engage in such nonsense. The text of Article I and the Seventeenth Amendment is clear.
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    Nor is there any Supreme Court authority for the proposition that Article I grants Congress power to establish voting qualifications. Oregon v. Mitchell, 400 U.S. 112 (1970) certainly is not to the contrary. I agree with my co-panelist, Roger Clegg, regarding his analysis of that highly fractured decision, which upheld an 18-year-old voting statute just prior to the ratification of the Twenty-sixth Amendment. The most significant feature of Oregon v. Mitchell is that eight justices rejected the Article I argument when it was squarely presented in the case. Only Justice Hugo Black relied on Article I, section 4, and no other justice of the five-member majority would join his opinion. I also believe the Court's ruling in City of Boerne v. Flores, 117 S. Ct. 2157 (1997) makes it unlikely that today's Court would rule the same way as the majority in Oregon v. Mitchell (absent the Twenty-sixth Amendment). But I want to add that even if I am wrong about the continued validity of Oregon v. Mitchell, the Court certainly would not rely on any Article I power in its decision.

    There are some fascinating and complex constitutional questions about which reasonable scholars can disagree in good faith, and there are some easy questions about which no reasonable high school student ought to disagree. Whether Congress has plenary power to establish the qualifications of voters under Article I is in the latter category, and the answer is ''no.''

THE FOURTEENTH AND FIFTEENTH AMENDMENTS

    Section 1 of the Fourteenth and Fifteenth Amendments render unconstitutional any state law that has as its purpose the intentional disenfranchisement of a racial group. Although state statutes that disenfranchise felons predate the Revolutionary War and may serve legitimate, nondiscriminatory ends, any statute intended to have a racially discriminatory effect is nevertheless unconstitutional. H.R. 906 is wholly unnecessary to address statutes with such a purpose, because they can and should be struck down by any court at any point in time.
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    Some historical evidence suggests that racial animus may have played a part in the passage or revision of a handful of states' criminal disenfranchisement laws 50–100 years ago. At least two of those states have largely repealed the offending statute. In Alabama, the courts agreed that the evidence was sufficient to conclude that one part of its statute was based on unconstitutional racial animus. See Hunter v. Underwood, 471 U.S. 222 (1985). It is unclear whether any state's current felony disenfranchisement law was passed because of racial animus. But if evidence exists that any current statute would not have passed absent racial animus, then the statute should be struck down.

    However, the Fourteenth and Fifteenth Amendment do not outlaw a statute that has a disparate impact on a racial group but that lacks an invidious motive or intent. As the Supreme Court noted in the case striking down Alabama's criminal disenfranchisement statute: ''[O]fficial action will not be held unconstitutional solely because it results in racially disproportionate impact. * * * Proof of racially discriminatory intent is required to show a violation of the Equal Protection Clause.'' Hunter v. Underwood, 471 U.S. at 227–28 (quoting prior cases). In short, the findings in H.R. 906 regarding the disproportionate racial impact of many state felony disenfranchisement laws do nothing to confer constitutional authority on Congress to address that disparity. Proof of such discriminatory intent, on the other hand, renders H.R. 906 wholly unnecessary, as the case of Hunter v. Underwood shows.

    Prior to the Boerne decision, the Supreme Court upheld some congressional statutes enacted pursuant to section 5 of the Fourteenth Amendment involving voting rights. These congressional statutes were designed to prevent states from excluding racial minorities from voting through pretextual devices, such as literacy tests, which were facially neutral but had the clear history, pattern, practice, and intent of excluding racial minorities. Everyone knew that the real purpose of literacy tests was invidious discrimination and that the stated purpose was a pretext. Facially neutral statutes that have the intent of excluding one race from the equal protection of the law are unconstitutional and should be struck down by the courts. After Boerne, Congress has less power to enact prophylactic statutes that outlaw the use of such facially neutral practices in the future. But the special history, pervasive pattern and practice, and the clear invidious intent of literacy tests present a strong case for a congressional prophylactic ban on the use of that particular device, especially since it was only used in modern times as a tool of intentional discrimination.
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    In contrast to the literacy test example, Congress's power to pass H.R. 906 and overrule state felony disenfranchisement laws lacks all of the criteria necessary for Congress to act under section 5. H.R. 906 does not find that felony disenfranchisement laws were passed as a pretext to discriminate against racial minorities, nor could it. Forty-six states have such laws, and the type and variety of such laws shows no correlation to states with histories of racial discrimination. There is no serious evidence that any significant number of the existing statutes, if any, was passed for an improper racial motive.

    Moreover, section 2 of the Fourteenth Amendment implicitly recognizes that states may have perfectly good reasons to disenfranchise those engaged in rebellion or other crimes. The framers of the Fourteenth Amendment would not have recognized these laws and made them an exception to the normal rules regarding the apportionment of Representatives in Congress if they did not believe such laws could operate in conformity with the rest of the Fourteenth Amendment. It would certainly be odd to argue that Congress could find that no state felony disenfranchisement statute passes muster under the Fourteenth Amendment when the Fourteenth Amendment itself acknowledges otherwise. The Supreme Court seemed to adopt this reasoning when it relied on section 2 of the Fourteenth Amendment to uphold a felony disenfranchisement statute against a nonracial equal protection clause challenge in Richardson v. Ramirez, 418 U.S. 24 (1974).

    Even if the evidence allowed Congress to conclude that a few states passed their existing criminal disenfranchisement statutes to deny their citizens constitutional rights protected by the Fourteenth and Fifteenth Amendments and Congress stated that H.R. 906 was designed to address that problem, the proposed solution in H.R. 906 would still be unconstitutional. In Boerne, the Supreme Court stated that before Congress could legitimately invoke section 5 of the Fourteenth Amendment ''[t]here must be a congruence and proportionality between the [constitutional] injury to be prevented or remedied and the means adopted to that end.'' Overruling the laws of the other 46 states regarding criminal disenfranchisement and preventing all 50 states from reenacting any that are not in conformity with Congress's dictates is not proportional to any constitutional violation identified in the bill.
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    There being no other arguable constitutional basis for Congress to act on H.R. 906, it must be concluded that H.R. 906 is unconstitutional.

    Mr. CANADY. As you have heard, the bells have rung and that means there is a vote going on on the floor, and what we will do now—they ring again—we will recess this subcommittee, and I apologize to the members of the panel, but we will recess the subcommittee. The Members will go for the vote, and then I encourage the Members to come back as soon as possible. I understand there is only one vote, a vote on the journal, and we will then move to questions for the members of this panel. The subcommittee will stand in recess.

    [Recess.]

    Mr. CANADY. The committee will be in order. We will now begin our questions, and I will recognize the gentleman from Michigan, Mr. Conyers.

    Mr. CONYERS. Thank you very much. I appreciate the testimony of the witnesses. I am not going to question anyone about policy because it seems to me the policy that we are trying to attend and correct is so obvious that we need not debate it here.

    But let us now consider the fact that I have had some assertions that Federal law cannot be changed by Congress, that the Federal elections cannot be altered by the Federal legislature. I think that that is a bit of a stretch, Ms. Metzger, but I am also prepared to accept that maybe we should make it more emphatic in our legislation, as Professor Dinh has suggested, but there seems to be ample provision in the existing cases that would not prevent us from outlawing these disenfranchisement statutes that exist across the States. May I solicit your opinion on that score?
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    Ms. METZGER. Certainly. Yes, I think that your initial point about adding recognition of what courts have recognized and the Supreme Court in particular has recognized the history of discriminatory intent regarding these provisions to the bill would, I think, answer the concern that it is not in the bill itself. But I do think that there are many decisions that make it clear that this kind of power to attack measures that have a history of discriminatory intent does exist under the Enforcement Clause; and in this regard, I think it is important to emphasize a couple of points.

    One is that it isn't necessary for Congress to show that 26 States use these discriminatorily and with discriminatory intent in order to have the power to act. I mean, Boerne in particular makes clear that that is not the test. Congress' powers are not so narrowly circumscribed under the Enforcement Clause, particularly to remedy racial discrimination, which is of course the underlying principle of the reconstruction amendment. The idea that Congress is so narrowly bound seems to me quite extreme.

    The language that the Court says in Boerne itself is simply that what is needed is that Congress has reason to believe that many of the laws affected by congressional enactment have a significant likelihood of being unconstitutional. I think the best example of this regard is literacy tests, and although one member of this panel I believe raised the point that maybe literacy tests are constitutional, but the ban on the literacy tests under the Voting Rights Act is constitutional, the Court itself has repeatedly held recently that it is and reiterated its holdings in that regard in the Lopez case last term. In Boerne itself it made a significant effort to emphasize that Congress' power to address the fundamental right to vote and racial discrimination in voting is at the absolute other end of the kind of statute that was at issue in RFRA.
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    So I think that those are clear examples of very analogous instances where Congress has the right, is empowered to act under the Enforcement Clause. I also think that it is important to not lose sight of and to be wary about imposing a burden of proving discrimination that is often, particularly discriminatory intent, and precluding—I believe you mentioned earlier the circumstantial evidence that could be drawn, somebody mentioned circumstantial evidence, from just disparate impact is important criteria. Particularly when you have got this tremendous history of using voting qualifications with the intent to discriminate, I think that imposing such a proof burden would really raise a substantial obstacle to our attainment of equal voting rights and is unnecessary.

    Mr. CONYERS. Well, one approach to the way the bill has been drafted could be that since there are several possible hooks, instead of stating one of them, I presume the Court, if they chose to find one or more, they would be able to do that without us having a line written in, and may I say that Mr. Shelton has——

    Mr. CANADY. The gentleman's time has expired. Without objection, the gentleman will have 3 additional minutes.

    Mr. CONYERS. Well, thank you very much. As Mr. Shelton has pointed out, the question of race and color isn't just an old question. It is the central question of America today. Some of our testimony is almost given like we are in a vacuum and we don't really understand that the questions of race and color are still being resolved. This is part of a long, continuing straightening out, a working out that is going on, and it seems to me that for us to march into a constitutional subcommittee and announce that the Federal Government is without any power to control Federal elections, I think is something that I am not prepared to accept.
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    Mr. Mauer, could I ask you, has there been any misconstruction of a statement that has been quoted twice as attributing to you in the course of these hearings this morning?

    Mr. MAUER. Well, I will just say, for the record, not only am I not a constitutional lawyer, I am not even a lawyer, so I think my words should be treated as such. I am a policy analyst, and I work in the field of criminal justice, and I will leave it to the legal scholars to determine what constitutes intent.

    Mr. CONYERS. Well, given the changed status—do I have any time left?

    Mr. CANADY. Yes, sir, the light is green.

    Mr. CONYERS. Given the changed status of the Federal legislation since the Constitution was drafted, having the States set Federal election requirements would seem to fly in the face of our tradition. Doesn't the Congress, under article 1, section 4, exercise substantial authority in setting Federal election qualifications? In other words, under article 1, section 4, couldn't we find enough authority for this rather modest improvement over ancient law? Ms. Metzger.

    Ms. METZGER. At the risk of convincing Mr. Gaziano that I do indeed deserve to go back to high school, I would say that, yes, I think there is power under it. The Elections Clause has consistently, as I mentioned earlier, been interpreted quite broadly.
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    I think based on the Court's recognition of a point that you are making, which is that Federal elections go to the core of Federal Government, and it seems quite odd to think that absent any other textual limit within the Constitution itself such a broad power couldn't go as well extend to qualifications for voting, and there the question is what is the textual limitation and does the Qualifications Clause provide it.

    And in that case, I mean, I don't believe that reading the Elections Clause to provide that power means that you are reading out other clauses of the Constitution like the Qualifications Clause. What you are doing is adhering to the Supreme Court's own interpretation of the meaning of the Qualification Clauses, all of which—at least the one in article 1 and the one in the 17th amendment are verbatim, the same, the most populace branch, and you are basically adhering to the Court's view that those clauses were actually intended to serve a fairly narrow purpose and should not be read more broadly.

    In that light, the Court has upheld a requirement that distinguish between ability to vote in Federal elections in Connecticut and ability to vote in State elections. If you were to read the Qualifications Clause literally, you might think that is a somewhat odd conclusion, but that is the Court's reading based on its understanding of the intent of the Qualifications Clauses. That being the case, I think that Congress does have power under its Election Clause power.

    Mr. CONYERS. Thanks for your contribution. Thank you, Mr. Chairman.

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    Mr. CANADY. I will now recognize myself. I want to follow up specifically on what Ms. Metzger was talking about. Professor Dinh, what do you say to what Ms. Metzger has said about the Court's interpretation of the Qualifications Clauses?

    Mr. DINH. Thank you very much, Mr. Chairman. I think article 1, section 4's time, place, and manner language does not give Congress the ability to regulate the substantive qualifications of electors themselves.

    Mr. CANADY. I understand that, but she was talking about, if I understood her correctly, she was talking about the Court's interpretation of the Qualifications Clause. She seems to think that they have interpreted that so, I guess, narrowly that it means we can do anything we want to, that the textual commitment to the States is so limited that it is not really a restraint on the Congress.

    Mr. DINH. I think the dictum in Tashjian as quoted in the memorandum can suggest that. I think it is only dictum, and I think the only holding on the record with respect to such a broad interpretation of article 1, section 2, as Mr. Gaziano pointed out, has only one vote in one instance, that is Justice Black's vote, in Oregon v. Mitchell, which one of my constitutional law colleagues has called a constitutional disaster area.

    Mr. CANADY. I mean, from what I know about that case, it is like a Tower of Babel, a little hard to discern what was really going on there.

    Let me just observe that when I look at article 1, section 2 and the similar provisions elsewhere in the Constitution dealing with the qualification of electors in each State, it seems to me to be a pretty clear and unequivocal commitment of that authority to the State legislatures or however the States happen to determine the qualifications for the electors of the most numerous branch of the State legislature. It seems that that is given to the States.
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    Now, of course we have the 14th amendment and the 15th amendment which have to be dealt with as well, but I think we have to start off with a pretty overwhelming presumption here that this is the States' responsibility, and I don't see how you can reach any other conclusion from reading the text of the Constitution. Now, there may be some dictum in a case based on a version of original intent, and I think that is wonderful to look at what people said, and I don't know how that dictum actually relates to what was said about the purpose of this, but I think the best way to get an idea of the purpose of a provision is to read it and to see what it says, and when you look at this, it seems to be pretty clear and unequivocal.

    Now, let me make another observation. I don't think it would be a secret, certainly not a secret to anybody on this subcommittee and probably not a secret to anybody else who has followed anything this subcommittee does, but I am not a big fan of the Boerne decision. I have criticized it, and I have demonstrated my lack of sympathy with that opinion in some statements I made previously, but that is something we have got to try to deal with here, and let me ask this question approaching from the Boerne angle and the 14th and 15th amendment angle.

    I first go to Professor Dinh and then maybe to Mr. Clegg and Mr. Gaziano. Is it your view under Boerne and whatever else is applicable, that there are circumstances which we could address legislatively in this arena that could not be successfully addressed under the existing case law simply by constitutional challenge to the State statute?

    Mr. DINH. I think that under section 5, the enforcement power, you do have broader authority with respect to the findings of fact necessary in order to support legislation.
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    Mr. CANADY. I understood what you had to say, but based on what you know about this particular context that we are dealing with, do you think it is likely that we would be successful, we could be successful in crafting a law that would do away—I will yield myself an additional 3 minutes—that would affect the operation of a State law that could not also be successfully challenged just simply in a suit that is based on the violation of the provisions of the 14th and 15th amendment?

    Mr. DINH. There is no question after Boerne and last year in Florida Prepaid, that you do not have the power to change the substantive meaning of equal protection. So if you do not have the power to change the substantive meaning of equal protection, a litigant may make an equal protection challenge in Federal Court directly rather than resort to any other findings or legislation by Congress. I think the decision does leave some room for Congress under section 5, but I think you are right.

    Mr. CANADY. Mr. Clegg, do you want to address that or anything else I have said or anything else?

    Mr. CLEGG. Well, thank you for that broad ground of authority. I think it is probably unconstitutional.

    Mr. WATT. We don't worry about minor things in the Constitution Subcommittee, I assure you.

    Mr. CLEGG. I recall a New York political boss who one time said, ''Well, what is the Constitution anyway among friends?''
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    Let me make two points. On the scope of article 1, section 2, I agree with you 100 percent, Representative Canady, that it seems quite unequivocal in what it says. And remember that the only reason we are talking about article 1, section 2 and article 1, section 4, is that we are trying to see if there is some font of Federal authority to enact this legislation. So, even if you succeed in interpreting section 2 as having a relatively narrow scope with respect to States, you haven't proved anything as far as finding a broader congressional grant of authority. Clearly, there is nothing in article 1, section 2——

    Mr. CANADY. That is why they want to talk about section 4.

    Mr. CLEGG. Right. For instance, the Tashjian case does talk about the scope of article 1, section 2, but that was not a case about whether Congress had authority, and so whatever it says about the scope of State authority under article 1, section 2, it is completely irrelevant to the point before us today—which is, is there any authority under article 1, section 4, for Congress to enact legislation in this area? And then you go back to the clear text, as you have pointed out, Representative Canady, and the fact is that there is no Supreme Court authority for article 1, section 4, except for this one opinion by Justice Black.

    And the second point I wanted to make is on——

    Mr. CANADY. If you can make it very quickly since my additional time has expired.

    Mr. CLEGG. Just very briefly, the authority for Congress to address intentional discrimination is the only authority really that we have here. The seminal Yale Law Journal work on that issue, marshaling the evidence that some States enacted criminal disenfranchisement statutes in order to disenfranchise blacks, lists five States: Alabama, Louisiana, Mississippi, South Carolina, and Virginia. So already you are down to 5 out of 50 of the States in the United States.
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    Louisiana now has an identical policy as this bill would have. So that takes out one. Alabama has already been the subject of a Federal lawsuit where its statute was struck down. South Carolina no longer has an across-the-board disqualification of felons from voting. Mississippi has subsequently changed its law. I don't know about Virginia. But the point is that if the committee seriously gets into this and looks to see if there are States out there that have laws on the books that are being used to disenfranchise felons with the intent of disfranchising blacks, I think they are going to drill a dry hole. Consequently, H.R. 906 lacks any font of constitutional authority.

    Mr. CANADY. Okay. Thank you, Mr. Clegg. Mr. Watt.

    Mr. WATT. Thank you, Mr. Chairman, and let me start by thanking all of the witnesses for making wonderful presentations about both the policy and the legal aspects of this difficult issue. I think we all have been made better by hearing all these arguments, and particularly thanking Mr. Mauer and Mr. Clegg and Mr. Shelton for addressing the policy issues and arguments, which I think, since all of us agree on, I won't ask any questions about. I think that is why everybody is directing their attention to the legal issue, because I think if it were just a policy question, there wouldn't be any question about, I presume, crafting the statute to deal with it and moving on to the next issue. Policy wise, that is easy. Legal wise, constitutional wise, maybe a little bit more difficult.

    Let me try a minimalist approach and ask Ms. Metzger and Mr. Dinh and Mr. Gaziano whether there have been any cases decided that really interpret the word manner in article 1, section 4 of the Constitution? Is there a case directly on point that talks about what is meant by the word ''manner''?
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    Ms. METZGER. I am not aware of one that sets out a specific definition of that term in that clause. I do know that there are numerous cases that repeat this language about those three: time, place, and manner, providing this very broad grant of power to adopt a whole code regarding Federal elections by Congress. For example, in the Buckley case, there the Court didn't—it is usually so implicit that they don't even come out and specify what the term is. They just cite it.

    Mr. WATT. Are you saying that the courts have said that the words, ''time, place, and manner,'' insofar as giving the authority to the States is concerned is very broad?

    Ms. METZGER. To the degree which it gives power to the States, the Election Clause gives equal power to Congress, though, because it makes it clear that all other powers of the State is subject to complete preemption in this regard by Congress, and they do say that it is very broad. They don't specify which word. Manner seems to me to be the one that is usually at stake, time and place being more obviously narrow.

    Mr. DINH. Just as an opening observation, article 1, section 4 alone does not provide adequate support for the scope of section 3 of H.R. 906.

    Mr. WATT. I didn't ask that question. That is a conclusion.

    Mr. DINH. Talking about congressional elections.

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    Mr. WATT. That is why I started by saying I want to take a very minimalist approach. I want to deal only with congressional elections. I want to find out whether there is authority under article 1, section 4 in congressional elections only to do what we would do, and that is the exact reason that I started by saying I want to take a very minimalist approach. Would we have the authority to, say, set a standard in congressional elections only in this area?

    Mr. DINH. On page 2 of my written testimony I cited three cases that interpret the time, place, and manner language, not specifically ''manner'' but as a term of art, ''time, place and manner'' totally; and I think all three of these cases can be characterized as regulating the process of elections rather than the substance.

    Mr. WATT. I didn't ask that. I want to know is there any case that specifically interprets the question of manner, and I heard Ms. Metzger say it has been interpreted very broadly which actually I think is helpful to us maybe. Mr. Gaziano.

    Mr. GAZIANO. I agree with the two previous witnesses.

    Mr. CANADY. Mr. Watt will have 3 additional minutes.

    Mr. GAZIANO. I am aware of no Supreme Court case that just looks at the definition of manner in isolation, but let me offer that your question is a very important one to this legislation. I think that the kernel of your concern is whether manner or that whole phrase could be interpreted to allow you to define the qualifications of voters in congressional elections, and there are two very important Supreme Court cases just a few months ago that haven't been mentioned thus far that I think bear directly on that.
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    In the Alden v. Maine case and the Florida Prepaid, the trilogy of Federalism cases, the Supreme Court said that when a particular provision of the Constitution, most notably the 11th amendment in that case, shows that something, some aspect of State sovereignty was reserved to the States, it is not just the 11th amendment which has constitutional significance, it is that aspect of State sovereignty which is retained by evidence of the 11th amendment.

    What I think the Supreme Court would say about this article 1, section 4 time, place, manner issue is that section 2 of the 17th amendment, section 2 of the 14th amendment clearly evidence that setting the qualifications even of Members of Congress is an aspect of State sovereignty reserved to the States. They would apply the same reasoning as the Alden v. Maine case.

    Mr. WATT. I hear what you are saying except that it flies exactly in the face of the language of article 2, section 4. The reason I started this way is that if time, place, and manner is a broad proposition given to the States, then you have to read the second part of article 2, section 4 which says, but the Congress may at any time by law make or alter such regulation except as to the places of choosing Senators. So if the whole concept of time, place, manner is a broad proposition, the case law has said that it is very broad. It gives the States basically complete authority in this area. The left hand hath given, the right hand has taken away, because the second part of the sentence is an exception. For everything that we gave to the States under the first part, we took it back with respect to everything except the place of electing Senators.

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    Now, I am not suggesting that I have studied this. I just was trying to figure out whether there is some way we can justify doing this without getting into all this intent stuff, and it would be interesting to see whether there are any cases that really expansively give that time, place, and manner language expansive authority to the States. If that is how they are getting it, then I guess whatever expansive authority we gave them under the first clause, we took back that same expansive breadth of authority under the second clause, I would think. Just a thought. In just congressional elections now. I am not talking about presidential elections, not talking about State elections but only in congressional elections.

    Mr. CANADY. I have more questions. So I am going to do a second round. Mr. Conyers, you are recognized if you have any questions.

    Mr. CONYERS. I don't have any at this time.

    Mr. CANADY. If you want to, Mr. Scott would probably take your time.

    Mr. CONYERS. Oh, I am sorry, I didn't realize you were prevented from getting time, Mr. Scott. I had no idea you were disenfranchised.

    Mr. WATT. We won't inquire any further as to whether any of the other criteria of this hearing apply to him.

    Mr. CONYERS. I would yield to the gentleman.

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    Mr. SCOTT. Thank you, and I thank the Ranking Member for yielding.

    Mr. Mauer, I just wanted to ask a quick question. You indicated that if an 18-year-old had a drug conviction, even if he was sentenced to rehabilitation, he would not be able to vote. What about a 14-year-old, similarly situated, tried as an adult?

    Mr. MAUER. The same thing would happen to that person if convicted on an adult felony, and the irony is that you can lose the right to vote before you even have the right to vote. I would add it is certainly not something I am aware that any defense counsel or judges or others usually inform the person about before entering a plea or anything like that.

    Mr. SCOTT. Now, if you are convicted of a Federal felony in the States listed, Mr. Shelton, in the States listed, if you are convicted of a Federal felony, you can't vote in these States.

    Mr. SHELTON. That is correct.

    Mr. SCOTT. If your Federal rights have been restored, does that automatically restore your rights in the State?

    Mr. SHELTON. The answer to the first question was yes. The answer to the second question is not necessarily. It varies from State to State.

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    Mr. SCOTT. So if your Federal rights have been restored, you still may have been convicted of a felony for the purposes of voting in the State, and you would have to go through the governor to get your rights restored because they had been taken away or whatever the process?

    Mr. SHELTON. That is correct.

    Mr. SCOTT. We have talked about the requirement for intent in the laws, and the law would have to be designed to intentionally discriminate to apply. If a law had been put on the books for racially neutral purposes that has an egregious racial disparity at this point and is kept on the books because of that discriminatory effect, how would that fit in the overall scheme of things?

    Mr. CLEGG. I think we would all agree that it is unconstitutional. If I understand your question, you're talking about a law that was passed with the idea of disenfranchising blacks.

    Mr. SCOTT. No, it was not passed. It was passed racially neutral, without any intent involved. It just turns out that it has this, from a political perspective, a pleasant disparate impact that is not removed from the books because the powers that be like that disparate impact because it has an egregious disparate impact. Can you ever get to the point where that impact, although it was not established for racially discriminatory purposes, constitute racial discrimination?

    Mr. CLEGG. I am sorry, I misunderstood your question.
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    Mr. SCOTT. Let me say, some of these disenfranchisement laws were put on the books before blacks could vote.

    Mr. CLEGG. That is right.

    Mr. SCOTT. So you would have trouble saying it was aimed at blacks because they couldn't vote to begin with. But as time progresses you will find some States, 30 percent of the blacks can't vote, 2 percent of the whites can't vote, and they won't repeal it because of that disparate impact.

    Mr. CLEGG. The law is clear at this point that for a law to be unconstitutional, to be a violation of the 14th or 15th amendments, it has to be discriminatorily intended. I am not aware of any case law of any successful challenges that have been brought to State inaction in the face of disparate impact. So I think the answer to your question is that it would be permissible. It would not be unconstitutional for a State to keep it on the books.

    Mr. SCOTT. Is there any—and I would like your answer, Ms. Metzger—but as you answer is there any question about whether intent is actually necessary?

    Ms. METZGER. Let me answer in two stages. The first one, I think that the situation you are describing is a case of really dual motive where you have got one motive and another motive. This is the case in Hunter v. Underwood where they said there is a possible legitimate reason for adopting this, but the question then is what is the dominant or primary motivation. From your hypothetical, it sounded like the primary motivation for not repealing it is discriminatory intent. I am not aware of why these standards would apply differently in that case. What would be quite different——
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    Mr. CANADY. The gentleman will have 3 additional minutes.

    Ms. METZGER [continuing]. Is of course the tremendous difficulty in proving it. This is why it is important to ensure Congress' power to act to prevent such discrimination under the Enforcement Clause.

    Your second question?

    Mr. SCOTT. Is there any question whether intent is actually necessary to prove a violation? I mean, if the disparate impact is real bad, do you have to prove intent? Can you just show the disparate impact is real bad? Is there any question on that legal point? Now, Mr. Clegg says there is no question. Is there any disagreement on the panel?

    Ms. METZGER. I would have some disagreement, but first of all, I think it depends, the context in which you require the evidence of discriminatory intent. If you have got a tremendous background of a State applying with discriminatory intent a whole bunch of voting qualifications, do you have to prove that this specific one was adopted out of discriminatory intent, or can you use the circumstantial evidence of the impact in that background, I would think that that should be sufficient.

    I also believe that——

    Mr. CLEGG. I do, too, by the way. And the Supreme Court has said that intent can be shown through circumstantial evidence. You don't have to have a smoking gun memorandum and, indeed, the presence of an overwhelming disparate impact is evidence of discriminatory intent. But the bottom line question is, is there that intent?
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    Mr. SCOTT. Is there that intent to keep the things on the books or to enact the law to begin with?

    Mr. CLEGG. As I said before, I am not aware of any cases that have challenged government inaction—that is, the failure of the government to repeal a law that was already on the books.

    Mr. SCOTT. I guess that is what I am asking, Ms. Metzger, are you aware of any case whether failure to repeal a law with an egregious disparate impact, even where you can show the people smiling because they enjoy the benefits of their disparate impact, is there any case law to show that that would be an unconstitutional situation?

    Ms. METZGER. I am not aware of a specific case on that. The one that comes closest to my mind is a case out of California which addressed a situation that California adopted a measure that made it very difficult to repeal a restriction on the ability to adopt antidiscrimination measures. And that—so, in other words the court in that case did not distinguish between repeal and enactment. But it is not really specifically on the question you are asking.

    Mr. CLEGG. I think the courts would be opening a real can of worms if they started saying that lawsuits could be brought challenging the failure of the government to do something because it knew the failure to act would have a disparate impact.

    Mr. DINH. I think there is general agreement here if I can just very briefly bring the two comments together. It is a question of intent, and it is a question of proof. And it is very hard, absent any active statement, to simply infer intent from racially disparate impact, because of the preexisting justifications for disenfranchising felons. In Hunter v. Underwood, there was a 10–1 racially disparate impact within 2 years after the enactment of the 1901 constitutional provision. And the court said that is not enough, we need something else, we need some historical evidence saying this was enacted—to establish white supremacy in the State of Alabama.
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    And so in that sense, that is—it is very hard to infer intent from racially disparate impact. What if there is failure to repeal? What evidence can we have? The easy case it seems to me would be if there was a call for repeal and a statement that says we can't repeal this, because that would mean blacks would get to vote; that would seem to me a fairly straightforward statement of intent. But in general, I think Mr. Clegg is correct, that I know of no case where failure to repeal a law is actionable as such.

    Mr. SCOTT. Thank you, Mr. Chairman.

    Mr. CANADY. Mr. Watt.

    Mr. WATT. I will go last this time. Let me deal with the rationale for the legal constitutional analysis of the motor voter legislation. I am just asking these questions because I don't know, I haven't looked at—when I quit practicing law, I quit actively reading every Supreme Court case that came down. I figured I had been punished enough in life. So, you know, I contented myself with just being generally familiar with the law.

    What did the courts that have dealt with motor voter use as the rationale for justifying?

    Ms. METZGER. They used the Elections Clause. And I think one important thing that cases, particularly like the Acorn case out of the 7th circuit emphasized is that given Congress' broad power under the Election Clause to preempt, this is not a case where the commandeering argument applies. People had opposed the motor voter because States had said this is going to cost us a huge amount of money, this is very burdensome and the court in the 7th circuit I believe in that case said that is interesting, but commandeering doesn't exist here because the Constitution and the Election Clause allows Congress to do that.
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    And that I think it deals with the—makes clear that the point that was raised in some of the written testimony about the burdens that were put on States particularly if they wanted to keep separate systems, which was an issue with motor voter, is really a policy question and not a constitutional and legal basis against H.R. 906.

    Mr. WATT. Any other responses to that?

    Mr. DINH. I can barely drive, so I don't know about motor voter.

    Mr. GAZIANO. Again, I think that the important question that you are probing isn't just whether manner is broad or time, place, and manner of the Election Clause is broad in some sense. It is very broad. The really important question for this legislation is, is it broad enough to get to who shall vote. And on that issue, that is the really important one here, not whether you have very, very broad power over motor voter and these other things, but do you have broad enough to reach qualifications even for Members of Congress.

    Mr. WATT. If States have broad enough power to reach it under their authority to regulate the manner of the elections, then the second part of section 4 where we take it back, I guess.

    Mr. GAZIANO. They don't have power, I would, say under manner, they—and your analogy was perfect, but what we gave in the Election Clause, you can take back. They don't have the power to set qualifications in the Elections Clause. They have the power inherent in State sovereignty.
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    Mr. WATT. You keep saying that, I keep asking that question and is there a case that that says that power in the Elections Clause is not broad enough to cover that. I keep hearing you say that, but that was the first question I asked, where is the case.

    Mr. GAZIANO. Aldon v. Main is the case where I think it shows that—where the Supreme Court will look to the one reservation of the power—one reflection of the reservation is on the 14th amendment, section 2. The 14th amendment, section 2, specifically recognizes the power to disenfranchise felons is reserved to the States as part of their State sovereignty. The general power to set qualifications is reflected in article 1, section 2, and in the 17th amendment, but the specific power to disenfranchise felons was recognized in the Constitution in the 14th. So no matter how broad manner is, it can't go that far.

    Mr. WATT. All right. I know I have got some more time, but I don't want to have these witnesses wait until we come back from the vote. So I am going to stop and yield back so that you can ask your questions so we don't have to come back.

    Mr. CANADY. All right. Let me pick up on the point that Mr. Gaziano made, and it is related to a question that Mr. Scott asked. Mr. Gaziano talked about the States having, as part of their criminal law sanction, the intent of depriving people of voting rights as part of the penalty for engaging in crime.

    And I think that is kind of a common sense way of looking at it, that makes some sense. But Mr. Scott was talking about the impact on Federal felons, that is people that are convicted under Federal law. And I am just wondering, this is a much narrower area that we would be talking about, but could the Federal Government, could the Congress say that people who are convicted of a Federal crime may not be subjected to whatever treatment on account of their conviction pursuant to Federal law in this arena?
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    We were talking about voter qualifications. Is that a different question, is that a more difficult question or would you have the same answer to that that you have had to the others? And I am going to ask Mr. Dinh and Mr. Clegg and Mr. Gaziano that because Ms. Metzger, it doesn't make any difference I don't think—or Mr. Shelton, I don't think—they would think that would be fine, there wouldn't be a constitutional bar to that, if there is not a constitutional bar to the underlying legislation. I am interested in this narrower issue.

    Mr. DINH. Here is where I and Mr. Gaziano may differ in our views. I think that is the right common sensical way of looking at felony disenfranchisement laws, but I think it is not the proper legal way to look at it. It is not part of the criminal punishment. Why? Because looking at it as part of criminal punishment would expose a State to ex post facto challenges any time it changes the requirements with respect to felony disenfranchisement. Separating out the two, that is, the criminal punishment as part of the sentence and voter qualifications as a separate repository of State power as such, I do not think that, even for congressional crimes, Congress has the authority to reenfranchise those convicted of Federal crimes.

    Why? Because it is not part of the criminal sentence of Federal crimes, rather it is part of the repository of State power to set voter qualifications.

    Mr. CANADY. Mr. Clegg, and then, Mr. Gaziano.

    Mr. CLEGG. I think I agree with Professor Dinh's bottom line, which is that you would not be able to pass that law. I think the reason is, again, you have to look for a font of congressional authority, and you are going to end up having to look in the same places that you looked before. And I think you are not going to find it there.
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    I am not sure that I agree with Professor Dinh's ex post facto argument because the Ex Post Facto Clause doesn't prevent you from repealing penalties. So if a State was reenfranchising felons, it wouldn't be kept from doing so by the Ex Post Facto Law.

    Mr. DINH. I agree with that, but last year Utah disenfranchised through a constitutional amendment and so if one looks at that, then that State—that action by Utah to disenfranchise would be subject to ex post facto challenge.

    Mr. GAZIANO. I agree with both of them and let me try to explain why. With regard to whether you have the power to have this effect regarding Federal sentences, we are back to the question we have been debating most of the time, what is your font. The setting of voter qualifications is inherent in State sovereignty, even for Members of Congress, and you know where does it come from and the answer is probably no.

    The reason I raised the State sanction issue is because it raises an additional constitutional concern there. And where I might try to harmonize the two previous speakers on this is that I think that this is a slightly harder issue, this additional constitutional question. But I have some doubt whether retroactive disenfranchisements do work for the reasons he suggested, but that States can disenfranchise and as part of the sanction that it is sort of unresolved whether they can make it retroactive, but there would still be an additional problem if you tried to lessen the penalty for State crimes. That much seems pretty clear.

    Mr. CLEGG. If I can respond to the question that Representative Watt was so persistently asking earlier about cases in which the Supreme Court has addressed the scope of article 1, section 4, and what it allows States to do and what it allows Congress to do. I think that the closest case to that is Oregon v. Mitchell.
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    Mr. WATT. Is that the disaster area case?

    Mr. CLEGG. That is the disaster area case. And that is the only case where a member of the Supreme Court has said that article 1, section 4, gives Congress the authority to determine the qualifications of——

    Mr. WATT. It sounds good to me.

    Mr. CLEGG. But that was one Justice. Four Justices rejected that explicitly, and four ruled in favor of the lone Justice but on different grounds.

    Mr. GAZIANO. The other refused to go along, so it really—eight who rejected it in one way, eight rejected it expressly and—I am sorry four rejected it expressly and four others refused to even sign the opinion of Hugo Black supporting that theory.

    Ms. METZGER. Just two quick points. There was a 7–2, I believe, decision in Kasper v. Pontikes which has a footnote saying Congress has the power to set it.

    Mr. CLEGG. It said that the Court has earlier ruled; that is different.

    Ms. METZGER. That Congress has the power to set qualifications and cited Oregon for that position. I would also add that the other Justices in Mitchell did not agree with the Qualifications Clause limit that was raised by Justice Stuart in that case.
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    Mr. CANADY. Unfortunately——

    Mr. SCOTT. Could I ask Mr. Clegg to respond to a question for the record?

    Mr. CANADY. Sure. He doesn't have to, but if he wants to.

    Mr. SCOTT. You had indicated that failure to act was not—you can't find the case where it is actionable. Would failure to repeal laws be sufficient justification for congressional action? And if you could—we don't have time for a coherent response right now, but would that be enough for us to base congressional action on?

    Mr. CANADY. Any of you who wish to address that question may do so. I think that would be fine, but I think that is going to have to be done in a written response because we have to now go to vote.

    I want to thank all of you. This has been a very informative hearing. Your testimony has been very valuable to the subcommittee. The subcommittee now stands adjourned.

    [Whereupon, at 12 noon, the subcommittee was adjourned.]

A P P E N D I X

Material Submitted for the Hearing Record
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Center for Equal Opportunity,
Washington, DC, October 25, 1999.
Hon. ROBERT C. SCOTT,
House of Representatives, Washington, DC.

    DEAR REPRESENTATIVE SCOTT: At the October 21, 1999, hearings on H.R. 906, you asked me whether Congress could properly assert its enforcement clause authority under the 14th and 15th Amendments to address the following situation: A state legislature passes, with nondiscriminatory intent, a felon-disenfranchisement law, which turns out to have a pronounced disparate impact on racial minorities, and then the legislature declines to repeal the statute, because it likes the disparate impact.

    I believe the answer is yes, but let me hasten to add some important caveats. Congress must actually have a sound basis for believing this to be the case; it should not simply assert this scenario as a fact. Congress also must truly believe that the reason for inaction is racial; to put it another way, Congress must believe that, but for racial considerations, this legislation would have been repealed. Nor is it enough to believe it might have passed one house of a state legislature; Congress must believe it would have passed both houses and been signed by the governor, but for racial considerations. Finally, Congress must have a good reason, if it decides to pass legislation that sweeps more broadly than addressing the particular state or states involved. As Professor Dinh noted at the hearings, City of Boerne v. Flores, 117. S. Ct. 2157 (1997), indicates that Congress may not use the illegitimate actions, let alone the inactions, of one state to justify legislation circumscribing the legitimate actions of the other forty-nine.
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    Based on the research I have done, I do not believe that Congress can meet these premises for H.R. 906. As noted at the hearings, felon-disenfranchisement laws have a long history, going back to our English and Roman roots; they have nondiscriminatory (with which you may not agree, but they do exist nonetheless); the vast majority of states have them; even the authors of the 14th Amendment acknowledged, in Section 2, their legitimacy.

    Furthermore, the unfortunate truth is—and, as a legislator, I'm sure you will appreciate this—there are many, many laws on the books that never get repealed, even though the current majorities in the legislature may not have voted for them in the first place if it had been up to them. Legislators are usually busy, and there can be many, many reasons for legislative inertia, and this makes is hard to conclude what the reason for legislative inaction is.

    In light of all this, I do not think that the ''state inaction'' theory can be used to justify passage of H.R. 906.

    Thank you for the opportunity to testify at the hearings, and for asking me your follow-up question. Please do not hesitate to call me if I can be of further assistance.

Sincerely,

Roger Clegg, Vice President and General Counsel.
     

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State of Rhode Island and Providence Plantations,
Department of Attorney General,
Providence, RI, October 25, 1999.
Mr. Brad Clanton,
Subcommittee on the Constitution,
Committee on the Judiciary,
House of Representatives, Washington, DC.

    DEAR MR. CLANTON: I am in receipt of your facsimile, dated October 15, 1999. In that correspondence you requested that the Department of Attorney General review House Bill H.R. 906 and determine what our position would be on this piece of legislation. It is our interpretation that this bill would allow all felons the right to vote providing that the individual is not serving a felony sentence in a correctional institution or facility at the time of the election.

    Based upon that interpretation, I have had the opportunity to review Rhode Island's Constitution. Specifically, in Article II Section 1 of our Constitution provides, no felon should be permitted to vote until completion of such felon's sentence, served or suspended, of parole or probation regardless of a nolo contendere plea. In light of this constitutional provision, it appears that Rhode Island Law is in direct conflict with the provisions of H.R. 906. Since there is such a conflict, it is our position that at this time we would oppose passage of this particular piece of legislation.

    I have provided you with a copy of our constitutional provision for your review. If you have any questions, regarding this particular matter please feel free to contact me at your earliest convenience.
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Sincerely,

Sheldon Whitehouse, Attorney General.

CC:

Senator Jack Reed
Congressman Patrick Kennedy
Congressman Bob Weygand

62486b.eps











(Footnote 1 return)
Indeed, Congress's power to control the penalties imposed for federal offenses could supply another basis for Congress's authority to enact H. R. 906, at least insofar as it applies to federal prisoners, but in its current forth the bill does not state that Congress is acting based on its determination that post-incarceration disenfranchisement is not an appropriate penalty for federal offenses.


(Footnote 2 return)
Section 2 of the 15th Amendment likewise authorizes Congress to enforce, by appropriate legislation, the mandate of section 1 therein that states may not deny or abridge the right to vote ''on account of race, color, or previous condition of servitude.'' Because the analysis under this authorization is similar to Congress' power under section 5 of the 14th Amendment, I will focus primarily on the latter.


(Footnote 3 return)
There is no indication that H.R. 906 is intended as an exercise of Congress' spending power or authority to regulate interstate commerce. Given the constitutional commitment of state authority to prescribe voter qualifications, these sources of authority would likely prove unavailing.


(Footnote 4 return)
The Voting Rights Act preclearance provisions at issue were applicable only to states that had employed a ''test or device'' as a prerequisite for voting and where voter registration was less than 50 percent. See City of Rome, 446 U.S. at 166, n.3. The Court presumably approved these conditions as a proxy for ''a demonstrable history of intentional racial discrimination.'' Id. at 177; see also South Carolina v. Katzenbach, 383 U.S. 301, 315 (1966) (noting that preclearance is part of ''a complex scheme of stringent remedies aimed at areas where voting discrimination has been most flagrant'').