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Authors

George Brooks

Abstract

George W. Bush became the forty-third President of the United States when he won the state of Florida by 537 votes in the 2000 election. Because the election was so close, hotly-contested, and divisive, aspects of our electoral system long relegated to dusty books suddenly became topics of water cooler conversation and cocktail party chatter. Some Democrats speculate that if the nearly 600,000 felons in Florida had been allowed to vote, Al Gore would have been elected President. Felon disenfranchisement has thus become a cause celèbre among liberals. There are approximately four million felons who cannot vote nationwide. They are disproportionately black and Hispanic — constituencies that have traditionally been Democratic strongholds. Embittered by the 2000 elections, Democrats have seized on the goal of extending suffrage to felons in hopes of increasing their traditional voter base, thus helping them win close elections. They face an uphill battle, however, as history, law, and policy weigh against allowing felons to vote. Part I of this note places felon disenfranchisement in a historical context, highlights significant cases and jurisprudence under the Fourteenth Amendment and the Voting Rights Act, and reviews the scope of its impact today. Part II considers the divergent interpretations of law that have led to uncertainty in the circuits as to whether the Voting Rights Act reaches felon disenfranchisement and when felon disenfranchisement statutes originally enacted with discriminatory intent have been cleansed of that taint. The confusion in the circuits stems from conflicting views of what the history of felon disenfranchisement means and whether there are legitimate underlying policy rationales. Part III argues that the Voting Rights Act does not reach felon disenfranchisement and thus the Fourteenth Amendment is controlling, therefore these laws are only susceptible to attack on constitutional grounds if they were enacted with discriminatory intent. Thus, we are left with policy arguments, which are properly decided in state legislatures.

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