Rand Paul’s Idea to Force the States to Enfranchise Felons Really Is Unconstitutional

by Roger Clegg

I’m gratified that Senator Paul responded to my criticism of the constitutionality of his plan for a federal bill to reenfranchise some felons, but I’m afraid that his response is quite unpersuasive.

Senator Paul seems to think that states can decide who votes in state elections but that the federal government has the final say on who can vote in federal elections, but that is just not true. The U.S. Constitution itself explicitly gives the authority to decide who votes in federal elections to the states (consistent, of course, with other constitutional guarantees, like the prohibition of poll taxes). And the recent Supreme Court decision that he cites to the contrary — last year’s decision invalidating part of an Arizona voting law — is, ironically, the same one that I cited in my initial post (along with my congressional testimony on the matter) because it confirms what I’m saying and rebuts Senator Paul’s position. See, in particular, the first two paragraphs of part III of Justice Scalia’s opinion, which notes that those guys Alexander Hamilton and James Madison also agree with me.

Reasonable people can disagree on when and which felons should be reenfranchised, and if Senator Paul wants to try to persuade the states to change their laws (starting with his own Kentucky), so be it. But there is really no way that anyone who takes the Constitution seriously can argue that this is an area for federal legislation.

I’ll note that this is so clear, in fact, that even Attorney General Holder, when he called for the reenfranchisement of felons earlier this year, limited his plea to the states and did not call for federal legislation. With all respect, then, does Senator Paul take the Constitution less seriously than Eric Holder?

Again, I hope he reconsiders his federal proposal.