Badge of Servitude: The Case of Crystal Mason and Felony Disenfranchisement Laws--Part 1

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Crystal Mason voted in the 2016 presidential election without fully appreciating that she could be sentenced to time in  prison for voting while on probation. Had she known it was illegal, she would not have casted a vote. In her own words: “You think I would jeopardize my freedom? You honestly think I would ever want to leave my babies again? That was the hardest thing in my life to deal with. Who would – as a mother, as a provider – leave their kids over voting?”

Under state law, a person who is “finally convicted” of a felony is not eligible to register to vote. But, once a person convicted of a felony is either pardoned or successfully completes his or her punishment, which includes any incarceration term, parole, supervision, or period of probation, that person regains her eligibility to register to vote. See Tex. Elec. Code § 11.002.

Crystal’s case raises serious concerns about the integrity of electoral and democratic processes. Texas officials have made it a priority to crackdown on voter fraud. Some argue that Crystal’s case falls under the umbrella of voter fraud. Maybe her case does fall under that umbrella, but that umbrella covers two views of voter fraud.

On one side, voter fraud covers individual abuses of the electoral process by people who are ineligible to vote. On the other side, voter fraud covers abuses by the state in denying citizens the right to vote, such as when a state imposes onerous burdens on individuals to vote, or dilutes the value of individual votes through subterfuge. This latter form of fraud is not often discussed as “fraud” but as a violation of individual and constitutional rights. However, when the state by subterfuge employs its force to deny any citizen, or group of citizens, the right to vote, the state commits voter fraud by compromising the integrity of the electoral system to skew electoral outcomes.

This article argues that blanket felony disenfranchisement should not be constitutionally sanctioned by showing that felony disenfranchisement is explicitly constitutionally authorized. That is, the one place in the Constitution that explicitly authorizes felony disenfranchisement is also the one place no one would or should ever argue in support of felony disenfranchisement—the Thirteenth Amendment to the United States Constitution. This article aims to start a serious discussion about the practice of felony disenfranchisement with the hope that the discussion does not rely only or solely on appeals to authority, but on the social benefit and justification for the practice in the first place.

            Felony Disenfranchisement in the U.S. Constitution

At the outset it should be noted that the original U.S. Constitution is void of any language as to who gets to vote, how ballots are cast, and a host of other issues pertaining to electoral processes. Section 2 of the Fourteenth Amendment marked the first time the Constitution said anything about a “right to vote,” and even then it was not an unqualified right to vote—it was a right to vote if eligible. The Constitution and constitutional case law tell us what qualifications the states may not impose on persons to be eligible to vote. Race cannot be a disqualifying factor, nor gender, nor age starting at 18; Wealth insofar as payment of a poll tax cannot be a requirement to vote.

Felony disenfranchisement laws render a citizen ineligible to vote due to that citizens status as a felon. The question arises whether states should be allowed to make eligibility to vote dependent on whether a person obeys the criminal laws of the state, specifically those crimes the state labels “felonies.” There are theoretical justifications offered to support state felony disenfranchisement as a legitimate government purpose, namely breach of the social contract, and civic-republicanism/civic virtue. But the question raised here is whether the U.S. Constitution offers textual support for felony disenfranchisement.

Section 2 of the Fourteenth Amendment—The Felony- Disenfranchisement Exception

The United States Supreme Court has held that section 2 of the Fourteenth Amendment to the United States Constitution provides textual support for state-enacted felony disenfranchisement laws. See Richardson v. Ramirez, 418 U.S. 24 (1974). The majority opinion engaged in an a-historical analysis to reach its conclusion, mostly looking to state constitutions existing at the time of the Fourteenth Amendment’s ratification, and Union readmission policies imposed by Congress on southern states following the Civil War. Unfortunately for the majority, the history behind section 2 is not a good indicator of whether felony disenfranchisement is constitutionally permissible. 

Section 2 of the Fourteenth Amendment punished states by reducing the Congressional representation of any state that denied, for any reason other than participation in a crime, the right to vote to any male who was twenty-one and a United States Citizens. Congress sought by Section 2 to deter States from disenfranchising former slaves—as an aside, the Republican-run Congress also enacted this penalty to counter an anticipated increase in Democratic Party representation because former slaves would be counted as whole persons, rather than only three fifths of a person, for purposes of apportioning congressional representatives in each state; the Republicans banked on the notion that black men would be loyal to the party ensuring and protecting their rights. But Section 2’s “penalty” did not obtain its desired effect during Reconstruction, as violence and constant threats of violence against black voters effectively disenfranchised them without the need of any state to make a law actually denying black men the right to vote.

The Fifteenth Amendment marked the first time that the United States Constitution appeared to secure the right of anyone to vote: “The right of Citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”  Section 2 of the Fifteenth Amendment vested Congress with authority to make laws to enforce the Fifteenth Amendment, providing the Federal Government a mandate to intervene in state-deprivations of the right of black citizens to vote. Congress enacted the Enforcement Acts of 1870 and 1871 (aka “The Ku Klux Klan Act”), which prohibited the use of violence or other forms of intimidation intended to prevent black persons from voting; the 1871 Act made it a federal offense to engage in violence and other forms of intimidation against black voters. The Justice Department was created to lead the charge in enforcing the Civil Rights Acts and Enforcement Acts.

The Fifteenth Amendment clearly was designed to replace the impotent sanctions imposed by section 2 of the Fourteenth Amendment with more robust federal oversight of state electoral practices. See e.g., Gabriel Jack Chin, Reconstruction, Felon Disenfranchisement, and the Right to Vote: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth Amendment? 92 Geo. L.J. 259 (2004); See United States v. Cruikshank, 92 U.S. 542 (1876) (holding   

The dissent in Ramirez argued that section 2 of the Fourteenth Amendment did not limit the Fourteenth Amendment’s equal protection clause or due process clause to remedy electoral discrimination practices, including felony disenfranchisement:

The Court’s references to congressional enactments contemporaneous to the adoption of the Fourteenth Amendment . . . are inapposite. They do not explain the purpose for the adoption of [section 2] of the Fourteenth Amendment. They merely indicate that disenfranchisement for participation in crime was not uncommon in the States at the time of the adoption of the Amendment. Hence, not surprisingly, that form of disenfranchisement was excepted from the application of the special penalty provision of [section 2]. But because Congress chose to exempt one form of electoral discrimination from the reduction-of-representation remedy provided by [section 2] does not necessarily imply congressional approval of this disenfranchisement. . . . There is no basis for concluding that Congress intended by [section 2] to freeze the meaning of other clauses of the Fourteenth Amendment to the conception of voting rights prevalent at the time of the adoption of the Amendment. In fact, one form of disenfranchisement—one-year durational residence requirements—specifically authorized by the Reconstruction Act, one of the contemporaneous enactments upon which the Court relies to show the intendment of the framers of the Fourteenth Amendment, has already been declared unconstitutional by this Court. . . .

418 U.S. at 75-76 (Marshall, J. and Brennan, J. dissenting). The dissenting opinion ends with a powerful rebuke of the practice of “blanket disenfranchisement of ex-felons,” taking into consideration “the significance or the extent of its infringement upon the spirit of our system of government.” Id. at 85-86.

There are other problems with relying on section 2 of the Fourteenth Amendment for textual support of blanket felony disenfranchisement.  Section 2 applies to the right of men to vote and the felony disenfranchisement exception to section 2’s punishment applies only to men. Women did not win the right to vote until 1920 when the states ratified the Nineteenth Amendment. The Court cannot, without great interpretive license, apply its textual analysis to authorize felony disenfranchisement of women. The Court would also be hard-pressed to backtrack and say that the word “men” or “man” in the Constitution applies to all people, including women; though the Court has argued this way in the past, because the Court explicitly used section 2 to justify state laws that denied women the right to vote. See Minor v. Happersett, 88 U.S. 162, 174-75 (1874).

Again, even were the Court to interpret “men” as including “women,” section 2 of the Fourteenth Amendment also explicitly only applied to men who attained the age of twenty-one. Would this mean that section 2 does not allow states to enact felony disenfranchisement laws that apply to men and women who are under twenty one? Eighteen, nineteen, and twenty-year olds did not win the right to vote until the Twenty-Sixth Amendment was ratified in 1971.

With all of these logical, textual, and historical problems, section 2 of the Fourteenth Amendment looks like a poor place to look for explicit Constitutional authority for states to enact felony disenfranchisement laws.

                        The Thirteenth Amendment Slavery Exception

 If the majority got it wrong in Ramirez, that leaves one place in the Constitution to explicitly authorize felony disenfranchisement—the Thirteenth Amendment. Though seemingly shocking or controversial, and contrary to popular belief, the Thirteenth Amendment to the United States Constitution did not abolish or outlaw slavery; it qualified slavery. Take a look at its language: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” U.S. Const. amend. XIII, § 1.

If the United States Constitution does not prohibit but in fact authorizes states to reduce to the class of slave or involuntary servant any person duly convicted of a crime, does this fact mean that states are authorized to disenfranchise felons?   What is slavery? It is a “situation in which one person has absolute power over the life, fortune, and liberty of another.” Black’s Law Dictionary 1422 (8th ed. 2004). A slave is one with whom the state may do what it pleases; a slave is outside of the political community; a slave belongs to the polity and submits to its will. The Thirteenth Amendment provides the most clear and express basis for felony disenfranchisement; felony disenfranchisement is not impliedly authorized by the Thirteenth Amendment; rather, the Thirteenth Amendment invests the states with absolute power over the life, fortune, and liberty of a person duly convicted of a crime. The franchise has long been the hallmark of self-governance, the right and ability of a person to choose her representatives and the laws that purport to govern her life. Without the ability to exercise the right to vote, she must submit to political outcomes chosen by others, whether those outcomes deprive her of property rights, increase her taxes, or alter other rights that she holds dear.

Interestingly, the Ramirez majority never considered that the participation in crime exception of section two of the Fourteenth Amendment was included by the Framers of that Amendment precisely because the Thirteenth Amendment allowed states to treat persons duly convicted of a crime as slaves.  Looking forward, one might ask why the Fifteenth Amendment qualifies one of its terms? No state may deny the right of a person to vote based on that person’s “race, color, or previous condition of servitude.” The Framers of the Fifteenth Amendment may have meant here that states could not deny the right of a person to vote because that person was formerly a slave; but the states could deny a person duly convicted of a crime the right to vote based purely on that person’s present condition of servitude.

Every person should feel unconformable about applying the Thirteenth Amendment to justify blanket felony disenfranchisement, especially since felony disenfranchisement laws disproportionally impact black Americans and other racial minority groups. See e.g., Erin Kelly, Racism & Felony Disenfranchisement: An Intertwined History, https://www.brennancenter.org/sites/default/files/publications/Disenfranchisement_History.pdf; Gabriel J. Chin, Race, The War on Drugs, and the Collateral Consequences of Criminal Convictions, 6 J. Gender Race & Just. 253 (2002). 

Presumably, no one would want to be on the side of arguing that the very Amendment that rid our nation of one of the most inhumane practices known to any civilized society can be used to exclude from political participation the ancestors of the victims of that most inhuman practice, or anyone else for that matter. But there is nowhere else to look, other than state traditions and state constitutions and statutes (under the rubric of the Tenth Amendment) if section 2 of the Fourteenth Amendment does not authorize states to disenfranchise felons. The Tenth Amendment route requires an in-depth and lengthy discussion of theoretical justifications for felony disenfranchisement. This discussion will be the subject of the second part to this blog.

Crystal Mason voted and for that act alone she will be wrested away from her children, her family, her friends, her neighbors, her community. She will continue to be governed completely by the will and whims of others. She will continue to wear the badge of servitude etched into the fabric of her civil rights by the state initiated status—felon. Did she commit voter fraud? Or is she the victim of state-initiated voter fraud. 

Daniel Correa