Roger Clegg and Sharon Brown have a piece in the Sunday LA Times – “Felons Have Lost Their Right to Vote.”  

Clegg notes that Congressional legislation enacted in the last 20 years expressly included provisions recognizing felon disenfranchisement: “For example, both the National Voter Registration Act of 1993 and the Help America Vote Act of 2002 contain provisions aimed at facilitating felon disenfranchisement.”

Perhaps more importantly, Clegg also notes the Constitution itself recognizes it: “What’s more, the Constitution explicitly assumes that felons may be barred from voting. The 14th Amendment — which, like the 15th, was passed during Reconstruction to ensure equal treatment of African Americans — acknowledges that states can disenfranchise people for ‘participation in rebelion, or other crime.’ So an interpretation of the Voting Rights Act to bar felon disenfranchisement would not only be inconsistent with the intent of that statute, it would exceed Congress’ constitutional authority.”

The cause of felon disenfranchisement seems to be one the weaker agenda items of some.  When there is an express provision in the Constitution which recognizes the possibility, the burden ought to be pretty weighty if someone tries to establish disparate impacts.  What’s more, should disparate impact theory even work in this area?  If there is no demonstrable racial intent to felon disenfranchisement statutes (and that’s subject for another day) then how many Americans will tolerate the argument that because more criminals are of a certain race, then laws which punish those criminals are unconstitutional.  This is not a well advised argument for civil rights advocates to make, unless of course there is a raw political calculation.  And that would never happen, would it?

There is some lost history in all of the debate about felon disenfranchisement.  In the past, one of the punishments for committing a felony was the loss of an estate.  Actually, going back 250 years, many felonies in England were capital crimes.  But if the felon was not executed, then loss of their entire estate followed.  Because this punished families it was eventually abandoned.  But the loss of civic rights can be traced back to this history.  Felons gave up all at one time.  Today there is still a widespread and popular view that those who commit crimes against the people and government shouldn’t have a say in writing the laws which they have shown a propensity to break.