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.