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Monday, November 14, 2005
Another Week, Another Denial of Cert. in a Voting Rights Case
As noted on SCOTUSBlog, the Supreme Court denied certiorari this morning in Johnson v. Bush, a case coming out of the Eleventh Circuit concerning the constitutionality (and legality, under the Voting Rights Act) of Florida's felon disenfranchisement statute. As SCOTUSBlog summarized:
The Court's denial leaves intact a ruling by the Eleventh Circuit that the Voting Rights Act's Section 2 does not apply to states' felon disenfranchisement laws. If Section 2 did apply to such laws, that Court said, it would raise constitutional problems, because the Fourteenth Amendment itself gives states the authority to deny the vote to convicted criminals. The Circuit Court also ruled that Florida's ban is not racially discriminatory under the equal protection clause of the Fourteenth Amendment.
The denial, the Court's third in the last year on a felon disenfranchisement issue, seems all the more odd given the absence of a dissent... Is it really true that no one on the Court finds felon disenfranchisement, even post-sentence disenfranchisement, worthy of review, if not his or her wrath?
Or, is it perhaps more subtle than that, since several crucial sections of the VRA are up for reauthorization in 2007? [Hat tip to my colleague Lindsay Harrison, for the reauthorization point.] In a climate where Congress is hardly reluctant to overturn Supreme Court statutory interpretation decisions (see, e.g., the Graham Amendment), maybe the Court is reticent to add fodder to the reauthorization fight. Or, perhaps, the Court's waiting for a circuit split (although that would only work, I imagine, if the Ninth Circuit had a chance to weigh in, which for ex-felons, could only arise out of a challenge to Arizona or Nevada law, both of which are fairly narrow in disenfranchising only certain ex-felons, at least according to this chart). Or, maybe the Justices have just decided that election law doesn't put the Court in its best light.
Of of course it's impossible to read such small tea leaves, but, especially now that I live in a state where felon disenfranchisement makes an enormous difference in every election, I can't help but wonder whether we'd all be better served by resolution of the potentially serious statutory and constitutional issues by the Supreme Court, preferably before the next election that turns on whether felons released from jail get to vote or not.
Posted by Steve Vladeck on November 14, 2005 at 12:54 PM in Constitutional thoughts, Law and Politics, Steve Vladeck | Permalink
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Steve Vladeck reflects on today's denial of cert in Johnson v. Bush: The denial, the Court's third in the last year on a felon disenfranchisement issue, seems all the more odd given the absence of a dissent... Is it really... [Read More]
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Comments
If Section 2 did apply to such laws, that Court said, it would raise constitutional problems, because the Fourteenth Amendment itself gives states the authority to deny the vote to convicted criminals.
Am I the only person here who thinks that Congress could take that authority away under the "republican form of government" clause and have it be (per Baker v Carr) a non-justiciable political question?
Posted by: Paul Gowder | Nov 14, 2005 1:05:28 PM
"The denial, the Court's third in the last year on a felon disenfranchisement issue, seems all the more odd given the absence of a dissent"
What is the significance, either tea leaf reading or legal, of the absence of a dissent from an order denying certiorari? I thought none. One could argue that nobody feels passionately that cert. should have been granted, but how passionately can one believe this inference?
Posted by: Peter Lushing | Nov 14, 2005 1:34:40 PM
Another theory: Maybe the Court is awaiting more data points from the Second and Ninth Circuits, which are both considering felon disenfranchisement statutes. The Second Circuit case (Muntaqim v. Coombe) went en banc this year and the panel has been holding off issuing a decision (likely for the same reason it didn't want to take the case en banc the first time around--it was praying the High Court would solve the issue for them). If some new Circuits weigh in en banc, maybe the Supreme Court will find time for the issue in its heavily overloaded docket!
Posted by: Ethan Leib | Nov 14, 2005 1:46:35 PM
Didn't the Ninth Circuit speak on Washington state's felon disenfranchisement in Farrakhan?
Posted by: Ted | Nov 14, 2005 5:10:15 PM
Yes, although in Farrakhan the Ninth refused to go en banc over several outraged dissents to the denial of the en banc petition. Since Farrakhan is on remand, it might give the Ninth Circuit another bite. One could argue that now that the Supreme Court has refused to grant cert (it refused in Farrakhan too), the Ninth may want to go en banc on the issue. This is all guesswork, of course.
Posted by: Ethan Leib | Nov 14, 2005 5:24:16 PM
Yes, and there was a blistering Kozinski opinion on the denial of en banc review.
Posted by: Happy Fun Lawyer | Nov 14, 2005 5:25:51 PM
To Peter's point, of course there is no independent significance to the absence of a dissent... I guess it just seems odd that this isn't a cert-worthy issue, even to those who aren't bothered by the disenfranchisement of ex-felons. And Farrakhan might even have been the _better_ vehicle... my point was only that, given Farrakhan, we're stuck with Arizona and Nevada.
Hmm...
Posted by: Steve Vladeck | Nov 14, 2005 6:27:06 PM
At the risk of sounding terribly untrendy, I fail to see the practical (as opposed to the symbolic) importance of whether ex-felons are allowed to vote. Here’s why. The vast majority of felons have been convicted of street crimes (various larcenous and assaultive offenses; drug offenses). Most had significant substance abuse and employment problems before they were convicted. Few of them were likely to have been registered voters before their convictions, and as the recidivism rate clearly shows, there is little reason to believe that their sojourns in prison have made them more civically conscious citizens. I use the word “citizens” loosely here, which leads me to another point. Another significant cohort of the felon population is comprised of illegal immigrants, who are not eligible to vote in any event, ex-felon or not. While these demographic details do not apply as generally to white collar felons, white collar felons comprise but a teensy fraction of the ex-felon population. It is also worth noting that less than half of non-felon citizens bother to vote. Bottom line: Even if ex-felons were allowed to vote, the total number of them to actually exercise that right would likely be minuscule indeed, and the effect upon elections virtually invisible. This, of course, has nothing to do with whether the constitution speaks to the voting rights of ex-felons - only to what seems to me to be an exaggerated and unwarranted amount of attention some give to the question.
Posted by: Stan Neustadter | Nov 16, 2005 11:57:24 AM
Stan: you're mostly right of course. (I think, as I said six years ago actually, that we should be more worried about economic opportunities than symbolic voting rights for ex-felons.)
Nonetheless, in light of the 2000 Florida debacle, I think that position might need to be moderated. After all, if Florida didn't have felon disenfranchisement, there's a good chance that Al Gore would be in the White House today.
Posted by: Paul Gowder | Nov 16, 2005 3:04:15 PM
Maybe this is the key sentence:
If Section 2 [of the VRA] did apply to such laws, that Court said, it would raise constitutional problems, because the Fourteenth Amendment itself gives states the authority to deny the vote to convicted criminals.Perhaps the court's liberal bloc is silent out of concern that if cert is granted, it will afford the court an opportunity to declare §2 unconstitutional?
Posted by: Simon | Nov 16, 2005 3:57:07 PM
As a follow-up, I don't disagree with any particular point of Stan's comments. However, aside from Paul's singularly pursuasive argument for post-conviction disenfranchisement, I don't really agree with the implied conclusion that it isn't a problem. I tend to think that if a person has paid their debt to society, then their punishment should end and that point; to that extent, I think that convicted felons should have the franchise restored upon completion of their sentence. However, as Stan notes, I see no compelling argument that there is a Constitutional argument which mandates such a policy, and if anything, there is a strong suggestion of precisely the opposite.
Posted by: Simon | Nov 16, 2005 4:05:40 PM
Simon -- I think you're on the right track, and I share what I take to be your personal views on the question, but is it really obvious that the "crime" language in section 2 of the Fourteenth Amendment means that states may disenfranchise _ex_-felons? And even if so, which I would vigorously contest, I'm not sure I see the straight line from that to section 2 of the VRA being unconstitutional on its face...
Posted by: Steve Vladeck | Nov 16, 2005 4:14:42 PM
Steve,
Well, the text says this much:
"[W]hen the right to vote at any [Federal or State] election . . . 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 in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state." (US Const, Amdt XIV, §2) (Emphasis added)As I read it, that says (taken in isolation, that is; I'm sure that someone will point to a potential equal protection challenge) that a State could Constitutionally withold the franchise from anyone it pleases, but on the proviso that its representation in Congress will be calculated based on the number of elligible voters in the state, not its actual numerical population. It's coercive - "you guys can do this if you want, but only at a price." So arguendo, let's say that's an effective proscription on withdrawal or witholding the franchise from otherwise elligible persons. Having said that, though, the same section specifically excludes from that proscription withdrawals of the franchise based on involvement in crime or rebellion; moreover, it says nothing that would suggest that the denial of the franchise, in itself, could not be wielded as a punishment.
So the question becomes, if the state can Constitutionally disenfranchise felons (which it would seem to be able to), can it Constitutionally disenfranchise former felons who have completed their sentence (or at least, who have completed a notional "incarceration phase" of their sentence)? I don't have an answer to that, but (since I wouldn't agree with the potential equal protection argument noted previously) my feeling would have to be "yes."
Posted by: Simon | Nov 16, 2005 5:14:09 PM
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