Disenfranchisement of Felons

April 28, 2015

By: Adam Melrose

President Abraham Lincoln once said that democracy is government “of the people, by the people, and for the people.” The Merriam Webster dictionary defines democracy as “a form of government in which people choose leaders by voting.” By this logic, and by the language of the Fourteenth Amendment, it appears obvious that every citizen of the United States is afforded the right to vote. However, approximately 5.8 million legal citizens of the United States are unable to vote, barred from polling booths by state laws. These citizens are barred by laws that prevent those with felony convictions from voting. This removal of voting rights from convicted felons is known as felony disenfranchisement.

A Brief History

The practice of felony disenfranchisement is rooted in the common law of England through a social policy known as “civil death.” While the English used this doctrine to escheat a felon’s property to the state upon conviction, this practice of civil death in the United States was far more commonly applied to the removal of voting rights. While originally the removal of voting rights was reserved only for the conviction of crimes that were considered “egregious violations of the moral code,” states began to expand the penalty to a broader range of felonies in the 1870s. Some scholars believe that the rise in state disenfranchisement laws was a direct response to the elimination of the requirement that a citizen must hold property to vote. These scholars also believe felon disenfranchisement as an alternative method created by the wealthy to reduce the voting power of the lower classes.1

After the Civil War, some of the Southern states even tailored their felony disenfranchisement statutes to target crimes traditionally committed in a higher frequency by blacks. This racist approach was personified by laws in Mississippi that allowed murderers to vote, but disenfranchised those who committed crimes of theft or arson. While today it is unlikely that the old racist rationales for disenfranchisement exist to the same degree, the effects the laws have on modern society are similar to the effects felony disenfranchisement had in the past.

The Modern Effects

A disenfranchised population of 5.8 million people means that nearly two percent of the United States population is unable to vote. While at first blush this might seem like an insignificant number, it is estimated that had this disenfranchised population been able to vote, they would have affected the results of seven United States Senate races. In addition, Al Gore would have won the presidential election in 2000, as Florida would have been won by Al Gore instead of former President Bush.2 This is clearly a significant impact on the democratic system; a clear and obvious impact on any election caused by disenfranchisement is worrisome, and an election as important as a presidential election should make anyone sit up and take notice.

map of fd laws by state web

One of the core issues with the current system of felony disenfranchisement is that it is not limited to the period of time in which the citizen is serving active time in prison for their felony conviction. In fact, in the majority of states in the U.S., disenfranchisement continues through parole and probation, even though there is no practical hurdle to prevent these men and women from voting. Even worse, in twelve states, citizens convicted of felonies are prevented from voting even after they complete all court-mandated probation requirements. These people are again members of society, and they should have an equal voice in electing those who will shape the world around them.

There are even some indicators that civic participation, including voting, have a positive impact on recidivism rates. If nothing else, the clearly disproportionate impact that felony disenfranchisement laws have on communities of color should raise the question whether these laws are having their intended effects, whatever these intended effects may be. In Florida, Kentucky, and Virginia, more than one in five black adults is disenfranchised, unable to vote on issues that truly matter to them.3 There have been some legal challenges to felony disenfranchisement that have helped to change the tenor of the conversation, and these legal struggles continue today.

Legal Challenges to Felony Disenfranchisement

The primary way that felony disenfranchisement has been challenged has been the argument that disenfranchisement policies are unconstitutional under the Fourteenth Amendment. The applicable section of the Fourteenth Amendment is as follows:

[n]o 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 the due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.4


Felons do not lose their citizenship, and citizens are allowed to vote. At face value, it would appear that since voting is a fundamental right of the United States democratic system, any law denying that right to vote “abridge[s] the privileges” of lawful citizens. However, the most recent Supreme Court case on point, Richardson v. Ramirez, more than forty years ago, held that the historical interpretation of the Fourteenth Amendment’s intent was not to abolish felony disenfranchisement, as disenfranchisement existed at the time and there was no explicit mention of abolition.5 Notwithstanding this defeat in the highest court, some states have begun to move forward with policy reforms to felony disenfranchisement.

Reform: A State by State Effort

There is no doubt that much of the resiliency of felony disenfranchisement laws is the lack of exposure about how onerous the hurdles are that convicted felons must overcome to once again become a voting member of society. Recent public opinion surveys show that eighty percent of Americans support the re-establishment of voting rights for felons once they complete their sentence, and sixty percent of Americans support voting rights for those still on probation or parole. These numbers sit in stark contrast to the majority of states that have laws contrary to public opinion, and help to show that lack of exposure is a serious issue in the reform movement. This is especially true where the individuals most affected by felony disenfranchisement are themselves unable to vote for representatives sympathetic to their plight. This quandary alone shows the dysfunction in the felony disenfranchisement statutes structure, and some states in recent years have come to this realization, and begun to act accordingly.

In the past twenty years, eight states amended or repealed lifetime disenfranchisement laws, ten states have made it easier for convicted felons to enter into the restoration process, and two states expanded voting rights to citizens on probation or parole. North Carolina now requires state agencies to create a process where citizens can be more fully informed about their voting rights under North Carolina law. While states have made some strides to combat unfair felony disenfranchisement, the battle is nowhere near complete.

Regardless of any individual’s personal opinion on whether a person convicted of a felony should be allowed to vote, it is important that society has the conversation about the costs and benefits surrounding felony disenfranchisement. The benefits are nebulous in nature, and ridiculous in reality: preventing “bad people” from voting because bad people make bad decisions. But the benefits of allowing felons to vote are many: the restoration of the key right of democracy; the potential for reduced recidivism rates; a more complete voice of the people through the voting process; and a basic adherence to simple standards of equality. This is a conversation that should be had, and one that the very people under attack are unable to fix for themselves.

1 – Elliott, W. E. Y., The rise of guardian democracy: The Supreme Court’s role in voting rights disputes, 1845- 1969, Cambridge, MA: Harvard University Press (1974).

2 – Uggen, C. & Manza, J., Democratic contraction? Political consequences of felon disenfranchisement in the United States, American Sociological Review, 67 (6), 777-803 (2002).

3 – Uggen, C. & Manza, J., Voting and subsequent crime and arrest: Evidence from a community sample, Columbia Human Rights Law Review, 36 (1), 193-215 (2004).

4 – U.S. Const. Amend. XIV.

5 – Richardson v. Ramirez, 418 U.S. 24, 54-56 (1974).

Clinic Member Interning at NC Court of Appeals This Summer

March 20, 2015
Photo courtesy of NC Court of Appeals.

Photo courtesy of NC Court of Appeals.

Congrats to one of our very own, Adam Melrose, who just got a summer internship at the North Carolina Court of Appeals! Beginning in June, Adam will be exclusively working on researching and writing criminal appellate memos. Congrats, Adam!

Religious Freedoms of Public Employees: Why the Magistrate Recusal Bill is Unconstitutional

February 26, 2015

By: Adam Melrose

The North Carolina General Assembly is attempting to limit individual rights once again. Senator Phil Berger, a Republican from Rockingham, NC, filed a bill on January 28, 2015, entitled “Magistrates Recusal of Civil Ceremonies.”[1] This bill would allow any magistrate the right to recuse him or herself from performing a lawful marriage on the basis of a “sincerely held religious objection.” In addition, any magistrate recusing him or herself under this bill would be immune from any disciplinary action resulting from his or her refusal to marry a couple that, under the law, may be lawfully married in North Carolina.

What does this bill mean?

The bill has been featured prominently in the news since it was first introduced in the North Carolina legislature. However, the media has generally provided an erroneous description of this bill, labeling it an “anti-gay marriage bill.” There is some truth to the news reports’ descriptions. This bill appeared in the General Assembly just months after the Federal Fourth Circuit of Appeals ruled that banning same-sex couples the right to marry was unconstitutional. However, this description does not convey the full weight and magnitude that the bill could bring to bear. This bill allows for a magistrate to recuse him or herself for “any sincerely held religious objection.” It does not include language that limits recusals to religious objections based solely upon same-sex marriage.

Under the exact language of the bill, a Catholic magistrate could refuse to perform a marriage of a couple who had been previously divorced by stating that his deeply held religious beliefs object to all divorces. The media, by focusing the general public’s attention on the divisive issue of same-sex marriage, has inadvertently kept the public eye off the true insidious nature of this bill. While there are still plenty of people in North Carolina who are opposed to same-sex marriage, there are few people who would affirmatively state that a public official can refuse to perform a marriage of a previously divorced couple. However, even if the bill was only directed at same-sex marriages, it is unlikely that Berger’s bill would survive constitutional challenge upon being passed into law.

First Amendment Justifications

Berger’s rationale for this magistrate recusal bill is simple: Berger believes that this bill “offers a reasonable solution to protect the First Amendment rights of magistrates and register of deeds employees while complying with the marriage law ordered by the court – so they are not forced to abandon their religious beliefs to save their jobs.” This rationale does not withstand constitutional scrutiny because magistrates are public employees and therefore must abide by the law.

Photo courtesy of Getty Images.

Photo courtesy of Getty Images.

A public employee has no right to object to restrictions placed upon his or her conditions of employment, including those restricting constitutional rights.[2] As Supreme Court Justice Oliver Holmes once said, “A policeman may have the constitutional right to talk politics, but he has no constitutional right to be a policeman.” State actors, as the literal “hand” of the government, are required to follow the laws of the government, even if following those same laws may conflict with personal views held by the government employee that would otherwise be constitutionally protected if the individual worked in the private sector. If the government employee has an issue with a law, it is that employee’s prerogative to quit his or her job and seek employment elsewhere.

Furthermore, the state may not selectively apply laws as it sees fit based upon the whims of each individual state employee. The Equal Protection Clause of the Fourteenth Amendment prohibits this practice explicitly. The Fourteenth Amendment states that no State “shall deny to any person within its jurisdiction the equal protection of the laws.” [3]  The law, as it now stands, affirmatively states that bans on same-sex marriage are unconstitutional. As a result, magistrates, acting on behalf of the government, may not deny a marriage license to a lawfully eligible couple without running afoul of the Fourteenth Amendment. The privately held beliefs of the magistrate are of no consequence, no matter Berger’s attempts to use the language of the First Amendment as a smokescreen for an unconstitutional action.

Berger’s magistrate recusal bill is also not reconcilable with some of the other language in the First Amendment itself. While Berger goes to great lengths to argue that the bill is to protect the magistrate’s “religious beliefs to save their jobs,” this only addresses the “freedom of speech” portion of the First Amendment. [4] The First Amendment also requires the separation of church and state: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Supreme Court Justice Hugo Black famously stated that the government may not “pass laws which aid one religion, aid all religions, or prefer one religion to another . . . in the words of Jefferson, the First Amendment clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State.’”[5]

A Step in the Wrong Direction

This bill, without a doubt, creates a situation where the state government, through its employees, would be able to act based upon their “sincerely held religious objections.” It is irrelevant that there may be magistrates of every religious creed affected by this legislation; the Establishment Clause does not allow the government to pass laws to aid any religion even if the bill does not discriminate in favor of any religion in particular. Berger’s bill discriminates against those magistrates who hold strong moral beliefs that are not centered in religious ideology. This quandary is at the very heart of what the Establishment Clause was created to prevent.

The Magistrates Recusal of Civil Ceremonies bill is a poorly constructed attempt to attack constitutional freedoms central to our country’s creed. The fact that this attack is shrouded by homophobic zealotry adds insult to injury. The members of the General Assembly should look beyond the trappings of Berger’s bill and realize that if this bill were to be passed into law it would only hurt North Carolina’s public image. Besides, Berger’s bill would not make it a month in the court system before being ruled unconstitutional. This is not the attention North Carolina wants, or needs.


UPDATE: On February 25, 2015, the NC Senate passed the bill 32-16, exempting magistrates from performing weddings. For more information, see the News Observer and the NC Legislature Bill History.


[1] The filed bill can be accessed online here: http://www.ncleg.net/Sessions/2015/Bills/Senate/PDF/S2v0.pdf.

[2] Connick v. Myers, 461 U.S. 138, 142-43 (1983).

[3] U.S. Const. Amend. XIV.

[4] U.S. Const. Amend. I.

[5] Everson v. Board of Ed., 330 U.S. 1, 16 (1947).

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