Testimony before the U.S. Commission on Civil Rights
May 19, 2017
Hans A. von Spakovsky
Senior Legal Fellow
Center for Legal and Judicial Studies
The Heritage Foundation
Thank you for the invitation to testify before the U.S. Commission on Civil Rights on the subject of felons and the constitutional rights of states to prevent convicted criminals from voting.
I am Hans A. von Spakovsky, a Senior Legal Fellow and Manager of the Election Law Reform Initiative in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation (www.heritage.org). I was a Commissioner on the Federal Election Commission for two years and am a former career Counsel to the Assistant Attorney General for Civil Rights at the U.S. Department of Justice, where I coordinated enforcement of federal voting rights laws including the Voting Rights Act of 1965.
I am also a former member of the Board of Advisors of the U.S. Election Assistance Commission; the Registration and Election Board of Fulton County, Georgia; the Electoral Board of Fairfax County, Virginia; and the Virginia Advisory Board to the U.S. Commission on Civil Rights. I have published extensively and have testified before both congressional and state legislative committees on voting and election issues, including felon voting.
All of the views and opinions I express in my testimony are my own and should not be construed as representing any official position of The Heritage Foundation or any other organization.
As you are hearing from the testimony today, there are a variety of collateral consequences that attach to a criminal felony conviction, although losing the right to vote is perhaps the most well-known. First, there may be (and usually are) prison or jail sentences. Second, there are other direct penalties such as fines, court costs, restitution, and possible probation and parole requirements. Finally, there are various disabilities such as the inability to own a gun, to work as a police officer or teacher, to hold certain professional licenses, to serve in elected offices, to be a notary public, or to serve on a jury.
In short, the initial time in prison is not, and has never been, the only way a felon is punished for breaking the law, endangering his fellow citizens and the public, and intentionally and knowingly violating the rules of the civil compact that we have collectively implemented to govern our civil society.
It is important for this federal commission to understand that Congress does not have the constitutional authority to force states to restore the voting rights of convicted felons. There are also good public policy reasons why this should not be done. While many states automatically restore the right to vote after a felon has completed all of the terms of his sentence, others require individual applications and impose waiting periods because of the high recidivism rate of felons.
Two states, Maine and Vermont, allow felons to continue to vote even after conviction and during incarceration. Massachusetts was a third state that did not take away the ability to vote of incarcerated felons until 2000, when a ballot initiative was overwhelmingly approved by the voters to change that policy. Francis Marini, the former minority leader of the Massachusetts House of Representatives, said that allowing incarcerated felons to vote made “no sense.” As he questioned, “We incarcerate people and we take away their right to run their own lives and leave them with the ability to influence how we run our lives?”
The citizens of each state are entitled to make their own decisions on this issue through their elected representatives or the referendum process. That includes deciding whether to require procedures that ensure that those who break the law to injure or murder their fellow citizens, to steal, or to damage our democracy by committing election crimes or engaging in public corruption like bribery, have changed their behavior and have shown that they can be trusted to once again exercise all of the rights of full citizenship.
Every year, bills are introduced in Congress that would force the states to restore voting rights as soon as felons are released from prison, sometimes even before they have completed probation, parole or making restitution to their victims. These bills are all clearly and unquestionably unconstitutional.
The Constitution gives the states the authority to determine the qualifications of voters in their states for federal elections. 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 authority to the states for voters for Members of the U.S. 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 has even less authority when it comes to presidential elections. Article II, Section 1, provides that states “shall appoint, in such Manner as the Legislature thereof may direct,” the electors of the Electoral College. Congress can only determine “the Time of chusing the Electors, and the Day on which they shall give their Votes.” Thus, Congress clearly has no authority under these provisions to tell the states that they must allow felons to vote in presidential elections, either, since the state determine how election are chosen and by whom.
The exclusive authority of the states over the qualifications of voters was most recently confirmed in Arizona v. Inter Tribal Council of Arizona in 2013.
When it comes to felon voting, Section 2 of the Fourteenth Amendment specifically and explicitly provides that states may abridge the right to vote of citizens “for participation in rebellion, or other crime.” The Fourteenth Amendment simply recognized a process that goes back to ancient Greece and Rome.
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 prior to the Civil War when many black Americans were slaves and could not vote, a majority of states took away the voting rights of people who were convicted of crimes.
It is true that five Southern states passed race-targeted felon-disenfranchisement laws from 1890 to 1910, but those laws have all been changed and amended. The case cannot be made today that such laws are in any way applied in a discriminatory fashion. When they have been, they have been struck down, as the Supreme Court did to Alabama’s law in Hunter v. Underwood, 471 U.S. 222 (1985). However, that case involved Alabama’s 1901 Constitution that disenfranchised persons convicted not just of felonies, but of misdemeanors “involving moral turpitude,” a catch-all that was used by state officials specifically to target black Alabamians.
In the Hunter case, however, the Supreme Court specifically noted that “[p]roof of racially discriminatory intent is required to show a violation of the Equal Protection Clause.” No such showing of intentional discrimination can be made with regard to such state laws today, and all recent attempts to do so have failed in court.
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, including their right to vote. Those same members of Congress deliberately and intentionally protected the right of states to withhold the right to vote from those citizens convicted of serious crimes against their fellow citizens.
Because the Fourteenth Amendment gives states the right to bar felons from voting, there is no equal protection violation because some states have different rules for when felons recover their right to vote.
Attempts to challenge state felon disenfranchisement laws under the Voting Rights Act have also all failed. As the Eleventh Circuit Court of Appels said in Johnson v. Florida when it concluded that Section 2 of the Voting Rights Act did not apply to Florida’s voting rules for felons, any contrary view would raise “serious constitutional problems because such an interpretation allows a congressional statute to override the text of the Constitution [in the Fourteenth Amendment].”
As the federal district court said in the same unsuccessful lawsuit against Florida’s felon voting law:
[Black ex-felons had] not been denied the right to vote because of an immutable characteristic but because of their own criminal acts. This is also true of the non-African American class members. Thus, it is not racial discrimination that deprives felons, black or white, of their right to vote but their own decision to commit an act for which they assume the risks of detection and punishment.
Criminals lose their right to vote because of their own conscious actions in violating the law, not because of their race.
Even if Congress had the constitutional authority to change state policies on this issue, there are sound public policy reasons why it should not. The loss of certain civil rights is part of the sanction that our society has determined should be applied to criminals. These laws are overwhelmingly supported by the public, a clear sign that they do not want their ability to influence the decisions made by elected officials diluted by convicted or incarcerated felons.
While some states automatically restore the rights of felons when they have completed their sentences, other states have more individualized procedures. Some states, for example, set up an application process for felons to apply for the restoration of their civil rights, including the right to vote. Such a process allows an individualized review in which the state can determine whether a felon has actually changed the behavior that got him in trouble in the first place.
Some states such as Nebraska have a waiting period after a felon completes his sentence. That is also perfectly reasonable and a common-sense requirement since a large majority of felons are rearrested and re-incarcerated within a short time after they are released from prison.
According to the U.S. Department of Justice, a study of felons in 30 states revealed that two-thirds (67.8 percent) were arrested for a new crime within three years, and three-quarters (76.6 percent) were rearrested within five years. In fact, more than a third of all prisoners who were rearrested within five years of release were arrested within the first six months after release, with more than half arrested by the end of the first year. The high recidivism rate of felons provides strong support for states such as Nebraska that require a waiting period or states such as Alabama that require an individualized application process
Those who push for immediate restoration of the right to vote as soon as a felon is out of prison often do not support restoring other rights such as the right to own a gun. State and federal laws also prohibit felons from owning a gun (see e.g., 18 U.S.C. § 922(g)). If public safety will be enhanced by providing felons with the ability to vote as proponents claim, why don’t they support amending federal law to allow felons to once again own a gun or to get rid of other collateral consequences? Are we to believe that felons can be trusted to vote but not to own a handgun?
Are we to believe that a convicted child molester can be trusted to vote but cannot be trusted to be a teacher in a public school? Are we to believe a convicted drug dealer can be trusted to vote but cannot be trusted to be a police officer? Or is the true motivation here based more on the fact that the vote of felons is important to winning close elections and not restoring their full rights as law-abiding citizens?
Some apparently trust felons enough to require the automatic restoration of their right to vote, but don’t trust them enough to automatically restore their right to own a gun or all of their other civil rights that were taken away when they were convicted of murder or robbery or rape or bribery.
The American people and their freely-elected state representatives must make their own decisions in their own states on when felons should have their civil rights restored, including the right to vote. Felons can never “repay the debt” they owe to the victims of their crimes, even if they fulfil the terms of the punishment that society has imposed for their intentional commission of serious crimes.
The Constitution specifically gives the authority to decide that issue to the states. This is not an area that the federal government has any jurisdiction over except under very narrow circumstances that do not apply to any of the current state laws governing the ability of felons to vote.
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 “Jailhouse Vote,” The Wall Street Journal (Dec. 7, 1999).
 133 S.Ct. 2247 (2013).
 See Hans A. von Spakovsky and Roger Clegg, “Felon Voting and Unconstitutional Overreach,” Legal Memorandum No. 145, The Heritage Foundation (Feb. 11, 2015).
 405 F.3d 1214, 1229 (2005) (“Congress has expressed its intent to exclude felon disenfranchisement provisions from Voting Rights Act scrutiny.” Id. at 1234). See also Hayden v. Pataki, 449 F.3d 305 (2nd Cir. 2006); Simmons v. Galvin, 575 F.3d 24 (1st Cir. 2009); Farrakhan v. Gregoire, 623 F.3d 990 (9th Cir. 2010).
 Johnson v. Bush, 214 F.Supp.2d 1333, 1341 (S.D.FL. 2002), affirmed 405 F.3d 1214 (11 Ci. 2005).
 “Nebraska Governor Vetoes Bill to Restore Felon Voting Rights,” Associated Press (April 27, 2017). Nebraska has a two-year waiting period.
 Alexis D. Cooper, Matthew R. Durose, and Howard N. Snyder, “Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010,” Bureau of Justice Statistics, U.S. Department of Justice (April 22, 2014).