Despite the scant justification for U.S. criminal disenfranchisement laws, they have withstood constitutional challenge. Ordinarily, the courts carefully scrutinize state restrictions on the right to vote to assess their constitutionality under the equal protection clause of Section 1 of the Fourteenth Amendment to the U.S. constitution.62 States must show that the restriction is necessary to a legitimate and substantial state interest, is narrowly tailored and is the least restrictive means of achieving the states objective.63 In Richardson v. Ramirez,64 however, the U.S. Supreme Court exempted criminal disenfranchisement laws from such strict scrutiny. It construed Section 2 of the Fourteenth Amendment as granting states an affirmative sanction to disenfranchise those convicted of criminal offenses,65 and therefore reversed theCalifornia Supreme Courts ruling that the disenfranchisement of ex-felons was unconstitutional as a violation of equal protection guarantees.66
Eleven years later, in Hunter v. Underwood,67 the Supreme Court unanimously declared that Section 2 did not protect disenfranchisement provisions that reflected purposeful racial discrimination that otherwise violated the equal protection clause.68 The court held unconstitutional a provision of the Alabama constitution that disenfranchised offenders guilty of misdemeanors of moral turpitude after finding that the intent of the provision had been to prevent blacks from voting and that it continued to have a racially disproportionate impact.69
Criminal disenfranchisement laws may also be vulnerable under the Voting Rights Act of 1965, 42 U.S.C. 1973, which was adopted to remedy persistent racial discrimination in American voting. As amended in 1982, the legislation bars voting qualifications, practices, etc. that result in a denial or abridgment of the right to vote on account of race or color regardless of whether such a provision was
enacted with racist intent70 It is an unsettled question in the federal courts, however, whether the Voting Rights Act can be used to strike down criminal disenfranchisement laws.71
62 Section 1 of the Fourteenth Amendment reads in pertinent part: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
63 See, e.g., Dunn v. Blumstein, 405 U.S. 330 (1972).
64 418 U.S. 24 (1974)
65 Section 2 reads, in relevant part: When the right to vote...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 whichthe number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state. The majoritys interpretation of the history of Section 2 has been strongly criticized by many. In his dissent, Justice Marshall insisted that Section 2 was not intended to exempt felons from equal protection coverage but was created as a special remedy of reduced representation to cure the disenfranchisement of blacks at a time when an explicit grant of suffrage to African Americans was not politically possible. Section 2 put southern States to a choiceenfranchise Negro voters or lose congressional representation...[But simply] 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. Richardson v. Ramirez, 418 U.S. at 75-76 (Marshall J. dissenting).
66 California law was subsequently amended to permit ex-felons to vote, while continuing to disenfranchise those in prison or on parole. See, Flood v. Riggs, 80 Cal. App. 3d 138 (1978). Richardson v. Ramirez,418 U.S. 24 (1974) involved disenfranchisement of persons convicted of felonies. In McLaughlin v. City of Canton, Mississippi, 947 F. Supp. 954 (S.D. Miss. 1995), the court ruled that strict scrutiny was required where disenfranchisement was based on a misdemeanor rather than a felony conviction.
67 Hunter v. Underwood, 471 U.S. 222 (1985).
68 Under U.S. law, a racially disparate impact is not sufficient to establish a violation of equal protection guarantees; a discriminatory intent or purpose is also required.
69 Alabama continues to disenfranchise persons convicted of certain enumerated offenses as well as any crime punishable by imprisonment, i.e., any felony. Alabama Const., Art. VIII, § 182.
70 Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, § 3. The Supreme Court in City of Mobile v. Bolden, 446 U.S. 55 (1980), interpreted the original act as requiring a finding of discriminatory purpose before state action could be prohibited. Congress amended the act to clarify its determination that discriminatory results sufficed to invalidate state practice without regard to discriminatory intent. In contrast to the Voting Rights Act, a finding of discriminatory racial intent as well as impact is required to establish a constitutional violation.
71 In Baker v. Pataki, 85 F. 3d 919 (2d Cir. 1996), inmates claimed New York laws denying the franchise to incarcerated and paroled felons violated the Voting Rights Act because of their racially disproportionate impact. The court, sitting en banc, divided evenly on whether Section 2's results only test could be applied to state criminal disenfranchisement laws. For a discussion of the Voting Rights Act and black disenfranchisement, see Shapiro, Challenging Criminal Disenfranchisement; Alice E. Harvey, Comment, Ex-Felon Disenfranchisement and its Influence on the Black Vote: The Need for a Second Look, 142 U. Pa. L. Rev. 1145 (January 1994).