His felon-enfranchisement proposal is a tricky matter, but not clearly unconstitutional.
Senator Rand Paul has announced he is considering introducing legislation to enfranchise certain convicted felons who have served out their sentences. But is it constitutional for Congress to override state laws that disenfranchise felons?
The idea has drawn a strong rebuke from Roger Clegg, who emphatically argues no. Roger is a superb constitutional lawyer, but in his response he has let his rhetoric get away from him.
Before getting into the constitutional law, let us note that, Roger has (at least in the past) recognized, as a policy matter, two sides to this debate. While he opposes the proposal, he has said that he is at least “sympathetic” to the idea that “reenfranchising felons is a good way to reintegrate them into society.”
But Roger won’t grant any good faith to Senator Paul on the question of constitutionality. On this, he writes that if “Senator Paul proposes [such legislation] . . . he has shown himself to be someone who does not take the Constitution seriously.” This is grossly unfair to Senator Paul, who is a remarkable senator precisely because he takes his oath of office as seriously as he does.
It is true that the Supreme Court has held, in Richardson v. Ramirez, that states may disenfranchise felons. In recognition of that decision, and the principles of federalism, Senator Paul proposes only to set standards for federal elections — that is, Congress and the presidency — and not state elections. The authority for Congress to set voting standards in federal elections arguably comes from Article I, Section 4, of the Constitution, which provides that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
Roger argues that this congressional power does not extend to determining who is eligible to vote, as opposed to how, where, and when voting should take place. This is certainly a reasonable argument, buttressed by language in the Supreme Court’s decision last term in Arizona v. Inter-Tribal Council of Arizona, a case dealing with Arizona’s request for a waiver from certain federal registration requirements under the Help America Vote Act. In Inter-Tribal, the court wrote, “Arizona is correct that the Elections Clause empowers Congress to regulate how federal elections are held, but not who may vote in them.”
Case closed? Not quite. Inter-Tribal notwithstanding, the Supreme Court has never overruled Oregon v. Mitchell, a 1970 case in which the Court upheld Congress’s power to legislatively overrule state laws and grant the right to vote in federal elections to 18 to 21 year olds (Not long after, the Constitution was specifically amended to grant the vote to 18 year olds.) But Mitchell is a fractured decision, with no single theory uniting the five-justice majority.
Accordingly, Roger has argued that the Constitution, even as interpreted in Mitchell, does not grant Congress the power to override state law on felon voting. But he acknowledged that the issue is complicated, testifying:
Although a majority of the Justices upheld [in Mitchell] a statute that dictated who could vote in federal elections, only one, Justice Black, relied on Article I, Section 4 [while] the other four Justices relied on interpretations of Congress’s enforcement authority under the Fourteenth and Fifteenth Amendments that are inconsistent with the Court’s subsequent ruling in Richardson v. Ramirez combined with City of Boerne v. Flores.
That nuanced view is a long way from his argument this past week that anyone who relies on Mitchell to conclude that Congress has the power to determine who may vote in elections “does not take the Constitution seriously.”
If conservatives want liberals to take constitutional debate seriously, we have to take it seriously ourselves. That includes recognizing legitimate disagreement about the scope of congressional power, and avoiding the desire to “eat our own” on points of doctrine with uncalled-for attacks.
Senator Paul is attempting to address a difficult issue that is a sore point in much of the African-American community and that raises important constitutional and policy issues. I have little doubt that the senator would welcome debate on the constitutional questions posed by the proposal. Conservatives should be be prepared to discuss such proposals fairly and recognize that two people can disagree while taking the Constitution seriously.
— Bradley A. Smith is Visiting Judge John T. Copenhaver Jr. Chair of Law at West Virginia University, a former Chairman of the Federal Election Commission, and the Chairman of the Center for Competitive Politics.