According to the Reuters news service last week, “Democratic presidential candidate Michael Bloomberg would seek to standardize federal elections across the United States and prevent states from blocking felons from voting under a plan aimed at expanding access to elections rolled out on Friday. … Under the voting rights plan, Bloomberg would seek to create a non-partisan commission that would look to standardize federal elections, including forcing states to restore voting rights to felons and prohibit them from charging onerous fees to get those rights back.”
But it would be unconstitutional for the federal government to require states to allow felons to vote. Indeed, if the issue went to the Supreme Court, the evidence is that such a law would be struck down unanimously.
I discuss this in a paper that the Heritage Foundation published a few years ago and that Hans von Spakovsky there coauthored with me. At the time, it focused on a proposal by a Republican, Senator Rand Paul.
The paper is divided into two parts. First, it discusses why the federal government lacks the constitutional authority to boss the states around on this issue. Second, it discusses why disenfranchising felons — until they have served their full sentences and gone some period of time after release without committing any new crimes — makes perfectly good policy sense.
The paper also goes into a great deal of detail in refuting the claim that the felon disenfranchisement laws currently on the books in the various states have racist origins.
Here are some excerpts (footnotes omitted), and you can read the whole paper here.
Unconstitutionality
Congress does not have the authority to force states to restore the voting rights of convicted felons—even in federal elections. Section 2 of the Fourteenth Amendment specifically provides that states may abridge the right to vote of citizens “for participation in rebellion, or other crime.” The Fourteenth Amendment recognized a process that goes back to ancient Greece and Rome, as even opponents of felon disenfranchisement have recognized. The claim that state laws that take away the right of felons to vote are all rooted in racial discrimination is simply historically inaccurate: Even before the Civil War, when many black Americans were slaves and could not vote, most states took away the rights of voters who were convicted of crimes.
It should be kept in mind that the Fourteenth Amendment, like the Fifteenth Amendment, was one of the key post–Civil War amendments sponsored and passed by Republicans, the party of Abraham Lincoln and abolition, to help secure the rights of black Americans. Those same Members of Congress deliberately protected the right of states to withhold the right to vote from citizens who were convicted of serious crimes against their fellow citizens, because “the framers of the Civil War Amendments saw nothing racially discriminatory about felon disenfranchisement. To the contrary, they recognized the power of the states to prohibit felons from voting.” ….
Under the U.S. Constitution, if Congress is not acting pursuant to a specific grant of power given to it in Article I or some other constitutional provision, it is acting unconstitutionally. The federal government does not have the inherent power to do whatever it wants: It is a government of limited and enumerated powers, and there is no authority in the Constitution for Congress to force states to allow felons to vote, particularly in light of the language and limitations of the Fourteenth Amendment.
In fact, the Constitution gives the states authority to determine the qualifications of voters in those states. Article I, Section 2, Clause 1 provides that voters for Members of the House of Representatives “shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” The Seventeenth Amendment provides the same state qualification for voters for Members of the Senate. In other words, the qualifications or eligibility requirements that states apply to their residents voting for state legislators must be applied to those same residents voting for Members of Congress, thereby explicitly giving states the ability to determine the qualifications for individuals voting in federal elections.
Congress is given the authority under the Elections Clause in Section 4 of Article I to alter the “Times, Places and Manner of holding Elections for Senators and Representatives,” but that power does not extend to the “qualifications” of voters. James Madison and Alexander Hamilton in The Federalist Papers support this view, which is the most natural reading of the text. For example, in Federalist No. 52, Madison stated that to have left such qualifications open to “the regulation of the Congress” would be improper. Likewise, in Federalist No. 60, Hamilton argues that prescribing voting qualifications “forms no part of the power to be conferred upon the national government” by the Elections Clause, which is “expressly restricted to the regulation of the times, the places, and the manner of elections.” ….
Misguided claims by a few proponents of felony enfranchisement notwithstanding, Congress cannot rely on Article I, Section 4 for any authority on felon voting. Any doubt on this point was laid to rest in 2013, when the Supreme Court confirmed in Arizona v. Inter Tribal Council of Arizona that only states, not Congress, have the authority to determine the qualifications of federal voters. The majority opinion by Justice Antonin Scalia, … was joined by the Court’s four liberal justices as well as Chief Justice John Roberts and Justice Anthony Kennedy ….
Moreover, although Justices Samuel Alito and Clarence Thomas dissented from the judgment on other grounds, they agreed with the majority that the Constitution gives states, not Congress, the authority to determine the qualifications of voters. Justice Thomas stated, “I think that both the plain text and the history of the Voter Qualifications Clause … and the Seventeenth Amendment authorize States to determine the qualifications of voters in federal elections.” Justice Alito added that “[u]nder the Constitution, the States, not Congress, have the authority to establish the qualifications of voters in elections for Members of Congress.”
Policy Arguments
Those who are not willing to follow the law cannot claim a right to make the law for everyone else. And when an individual votes, he or she is indeed either making the law—either directly in a ballot initiative or referendum or indirectly by choosing lawmakers—or deciding who will enforce the law by choosing local prosecutors, sheriffs, and judges.
Not everyone in the United States may vote: Thus, children, noncitizens, and those who are adjudicated to be mentally incompetent are not allowed to vote. This nation maintains certain minimum, objective standards of responsibility, trustworthiness, and commitment to our laws for those who are allowed to participate in the solemn enterprise of self-government. It is not unreasonable to suppose that those who, regardless of their race, have committed serious crimes against their fellow citizens may also be presumed to lack this responsibility, trustworthiness, and commitment to America’s laws.
Is it too much to demand that those who would make the laws for others—who would participate in self-government—be willing to follow those laws themselves? ….
Reintegration of felons into the community is an important goal, and this paper recognizes that restoration of voting rights can be a part of that process. Conversely, it is also important not to suggest to felons that it is hopeless for them to want to rejoin that community.
But restoration of voting rights should be done carefully and on a case-by-case basis once the felon can establish in fact that he has turned over a new leaf. When that has been shown, then holding a ceremony—rather like a naturalization ceremony—in which the felon’s voting rights are fully restored would be moving and meaningful.
Restoration, however, should not be automatic, because the change of heart cannot be presumed. After all, the unfortunate truth is that most people who walk out of prison will be walking back in eventually. ….
Here are the “Abstract” and “Key Points” from the paper:
Both the original Constitution and the Fourteenth Amendment specifically delegate to the states the right to determine the qualifications of voters and to disqualify anyone who participates “in rebellion, or other crime.” Congress cannot override the Constitution through legislation and has no authority to restore the voting rights of felons for federal elections. The American people and their freely elected state representatives must make their own decisions in their own states about when felons should have their civil rights restored, including the right to vote. Requiring a waiting period and an application process is fair and reasonable given the high recidivism rate among felons. Any legislation passed by Congress taking away that power is both unconstitutional and unwise public policy.
- There is no question that the authority to decide whether (or when) felons should have their voting rights restored lies with the states, not with Congress.
- A federal bill such as S. 2550, which would restore the right to vote to nonviolent felons after they have served their term of imprisonment and no more than one year of probation, invades power specifically reserved to the states by the Constitution.
- Automatic felon re-enfranchisement is unwise public policy. It sends the message that Americans do not consider criminal behavior so serious that the right to vote should be denied because of it. Those who are unwilling to follow the law cannot demand a right to make it. Not allowing them to vote tells criminals that committing a serious crime puts them outside the circle of responsible citizens until they show they have turned over a new leaf. Being readmitted to the circle should not be automatic.
