ACLU Fights for Votes for Felons


ACRU Staff


March 2, 2010

In Mississippi the Constitution forbids felons from voting for President. The ACLU brought a challenge to that law, but the Fifth Circuit ruled that the Mississippi law was legitimate under the US Constitution. This case should be contrasted with a Ninth Circuit decision ruling that a Washington State law barring felons from voting violated the federal Voting Rights Act.

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Some of the facts for this article, but none of the legal conclusions, come from an article on the website of the Courthouse News Service on 1 March, 2010. It recounts the decision by the Fifth Circuit Court of Appeals affirming that the Mississippi Constitution’s requirement that convicted felons are disqualified from voting for President in that state.

The ACLU had supported the claim of certain inmates who claimed the right to vote. The US Supreme Court had previously ruled that regulations on the right to vote by felons was a matter of local options exercised by legislatures in each state.

This case from Mississippi should be contrasted with a recent decision of the Ninth Circuit Court of Appeals. The Ninth Circuit ruled that a Washington State law that disqualified inmates incarcerated for felonies from voting in that state, violated the federal Voting Rights Act. Whether the ACLU was involved in that case, it is certainly in accord with the ACLU viewpoint that all felons should vote in all elections.

The Ninth Circuit was aware of the prior US Supreme Court on felon voting rights so it could not base its decision on the Constitution itself. Instead, it claimed that the federal Voting Rights Act overruled the Washington State law. Seeing that the Ninth Circuit has been reversed more often than all the other federal Circuits put together, it is more likely than not that when the Washington case is offered to the Supreme Court for review it will be accepted. And reversed.

The primary defect in the ACLU position is that it misrepresents the US Constitution’s placement of primary responsibility for election law in the hands of the states. At the Philadelphia Convention the delegates discussed whether a federal standard for voting could be established. They concluded that the Constitution would have to agree to disagree.

The Constitution therefore specified that the “electors” for the House should be those who were allowed to vote for “the most numerous house” in each state, The factual pattern in the first election in 1789 was that more than just white, male, property-owners voted. Some states allowed non-property-holders to vote. Some allowed non-whites to vote, provided they otherwise qualified. And contrary to popular belief, even some New Jersey women voted in that election.

This individual freedom of writing election laws was part of the reason why the US Supreme Court originally ruled in favor of the differing laws on voting rights for felons. The same distinction may well apply when the issue of state election laws providing for recall of US Senators, reaches that Court.

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