On Voting Rights in a Modern Republic from a Legalist Perspective

   The world we live in – it is one that is permeated with innumerable axioms, inquiries, veracities, institutions, and aphorisms that have served to characterize the human condition and provide structure and civility for our very civilization. However, in few departments are these sacred bonds, and timeless veracities more exemplified (and in a great need thereof), than within the realms of a nation and a peoples’ government. For within a civilized society, a civil government is required, and the parameters necessary to facilitate that are myriad and multifaceted – however, one overarching principle that every government since the dawn of civilization has strived to demonstrate is their inherent Mandate to Govern.  Now, depending on the nature and degree of one’s government, this mandate can and has been addressed with a plentitude of rationalizations; whether it be through a divine mandate, ethical or moral origins, or even simply ‘Might Makes Right’. However, within most modern, civil societies, the mandate to govern is derived from the will of the populace, and the noble concept of a popular sovereignty.

For it has long been a fundamental axiom of Republicanism that the virtue or prudence of any action ought to be tested and determined through the will of the populace – abiding by the consent of the governed – which in a Republican society is most effectively exercised through the practice of voting. Subsequently, the question has naturally arisen throughout the centuries, regarding who in a Republic exercises the eligibility to vote in local, state, and national elections – and to determine the course of a Republic’s future. Throughout the course of our Republic, the voting question has so often been entertained – with suffrage gradually being expanded from the initial restrictions of the Early Republic; (limited solely to Wealthy White Landowners) to successfully grant suffrage to White Men (during the early-to-mid 19th Century), Freed Slaves and Black Men (during Reconstruction on paper), Women (in 1919), reinforced voting rights for African-Americans (Civil Rights Movement), and to youths above 18 (1971). However, perhaps the most prevalent discussion surrounding the legitimacy of voter eligibility in the modern era has become the voting eligibility of Felons – convicted perpetrators of criminal offenses – during, yet especially after their sentence expires.

   Therefore, especially during the age of mass incarceration, and an increasingly conflicting, polarizing constitutional arrangement, variation between states’ regarding the degree of eligibility exercised by Felons can vary greatly, from legal parameters erring too much in the realm of lenience, to borderline draconian, fundamentally Un-American law. One of the primary examples of the latter discrepancy hails from the State of Mississippi, and Article XII, Section 241 of the 1890 Mississippi State Constitution in particular: which, pertaining to the eligibility of felons, describes a qualified elector as; “a citizen of the United States of America, eighteen (18) years old and upward, [...], and who has never been convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy . . .”. Thereby clearly and irrefutably disenfranchising Felons convicted for a plethora of varying offenses for life within the State for all Local, State, and Federal elections. However, let us indulge within a hypothetical constitutional dilemma, if this provision of the State Constitution were to be questioned as unconstitutional, in a case we shall proclaim Voter v. Mississippi, on the grounds of violating the 14th Amendment’s Equal Protection Clause through intentionally committing either Racial or Invidious Discrimination, alongside various other potential Constitutional discrepancies.

   The Clause we speak of (Amendment XIV, Clause I) states, of course, that; “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No 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 due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”. Having been passed in the wake of Reconstruction following the Civil War, in order to guarantee the civil, political, and electoral rights and liberties of newly freed African-Americans within the American Political System, and to prevent the erosion thereof through deliberate laws of disenfranchisement within the Southern States. Due to this exigence of the Amendment, the 14th Amendment carries an intrinsically interconnected history with laws of this nature, due to the historical context around them, having largely been passed within Constitutions dating around the turn of the century following the end of Reconstruction, largely in order to cement the growing societal order of Jim Crow-style Segregation, with laws akin to this which largely targeted both the Black and Poor White populations’ throughout the South. Beyond the Fourteenth Amendment, the 13th and 15th Amendments are also worth considering for this inquiry, alongside certain provisions of the original articles of the Constitution.

  At this juncture, however, two fundamental questions of Constitutional Jurisprudence emerge; Firstly, do Felons have a constitutionally guaranteed right to vote, or if not, a right to any form of suffrage in the first place? Secondly, do individual states have the constitutional right to enact legislative provisions barring or restricting the right to vote amongst Convicted Felons? Admittedly, there are fairly legitimate arguments that can be made for either side of this debate, and although I may have my own vehement opinions on the matter, for practicalities sake, it shall be our aim today to anticipate what a hypothetical Supreme Court Verdict would be upon the matter, abiding by current factors, precedent, and the virtues of Civil Law. Regarding the verdict, based upon the current precedent on voting rights, the verdicts’ of recent years, and the increasing favor shown towards states’ rights by the current court, the Supreme Court of the United States would most likely (though not without dissent) allow for the Mississippi Voter Law to stand, on the grounds that even if felons have a right to vote in theory, the restriction thereof is in the hands of the states, with states being able to restrict the voting rights of felons as they see fit, and that it is not the place of the Federal Government to intrude upon this sovereignty in electoral policy without adequate rationale.

   First and foremost, with regard to the Constitutional legitimacy or potential right of a Convicted Felon to vote, the Constitution does not highlight the matter in as clear-cut of a manner as it does other departments of the law, however potential arguments can very well be made utilizing the equal protection clause, or even a broader interpretation of the 15th Amendment; “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude”, when considering the 13th Amendment’s allusion to forms of Servitude within and inherently around the Due Conviction of a Crime; “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted”. Yet such an argument is highly difficult to entertain especially given the current thresholds and dispositions of the court. However, the Rights of Convicted Felons to vote and participate in remaining civic duties if still legally eligible according to either state or national law (although the latter has never effectively occurred), cannot be abridged, as elucidated within O'Brien v. Skinner, 414 U.S. 524 (1974) – in which the ability of Felons to participate in elections if they were not already prohibited by sentencing, state, or national law was tested in the lack of providing absentee ballots to Prisoners that were not officially disenfranchised, leading to the eventual verdict that this denial violated the Equal Protection Clause of the 14th Amendment, since no prior law or verdict prohibiting the prisoners’ suffrage had been passed. For this reason, Prisoners do have and likely would be understood to have in the eyes of the Court, a fundamental Right to Vote if not otherwise decreed – which, notably, leaves the door open for potential State, Local, or Particular Restrictions that were not officially addressed by the ruling, and would thereby be up to greater Court interpretation and given the recent trend of the court towards states’ rights in precedent, less likely to be overturned.

   Now, pertaining to the secondary question at hand: the Rights of States, or the lack thereof, to restrict the Popular Suffrage of Convicted Felons, the Supreme Court would likely rule based upon the precedent of Richardson v. Ramirez, 418 U.S. 24 (1974), that individual States still exercise the right to pass Voting Restrictions for Felons during and after their sentence. For within the aforementioned case, Abran Ramirez and several formerly convicted felons within the State of California were denied the right to register to vote after their sentences had expired, and filled a lawsuit against then-California Secretary of State Jerry Brown, on grounds that the law violated the Equal Protection Clause of the 14th Amendment following their sentence. However, the Supreme Court ruled 6-3 that the California State Law denying Felons the right to vote after their sentence was not Unconstitutional and that States could freely enact Voting Restrictions for Felons’ on a purely legal ground without violating the Equal Protection Clause of the 14th Amendment. Therefore, it is rather clearly established, and the court would likely assert with a fair degree of confidence that although Felons retained a right to vote unless otherwise stated, any series of State laws restricting that right in their purest form were not unconstitutional and did not violate the 14th Amendment. This conclusion, although strongly serving to benefit the preservation of the 1890 Mississippi Voter Provision, does not serve to fully address the potential quarrel however of if laws of this nature restricting suffrage based upon the conviction of a felony derive from Racial Discrimination; on account of ones’ race or color, or Invidious Discrimination; on account of highly arbitrary factors, unrelated to voting and the democratic process: either of which would serve to violate the 14th and/or 15th Amendment(s).

   With regards to the former question of potential Racial Discrimination – Explicit, or implicit – within the Mississippi State Constitution, the widespread narrative around this law in specific, at least in recent years, has been that it falls in the grey area of constitutional jurisprudence. In that, although not being explicit in targeting Black Voters, may have been designed with that very intention (as was much of the 1890 State Constitution), and has disproportionately affected African Americans statistically speaking when compared to other racial/ethnic groups in the state. Therefore, however, pertaining to the nature of laws of this nature, which although the letter of the law does not touch upon the matter of race, the spirit of the law is questionable, and the consequence of the law is fairly obvious, there has been historical precedent that indicate that such laws of this similar nature, even if racially neutral in textual composition, can still very well violate the Equal Protection Clause of the 14th Amendment and Constitute Racial Discrimination. This dynamic can be explicated when observing Hunter v. Underwood, 471 U.S. 222 (1985), pertaining to the now invalidated Section 182 of the 1901 Alabama State Constitution that prohibited Suffrage to, those convicted of a great many felonies and (unlike the Mississippi State Law) many insignificant misdemeanors including, but not limited to; “living in adultery, sodomy, incest, rape, miscegenation, crime against nature (referring to homosexuality)* , or any crime punishable by imprisonment in the penitentiary, or of any infamous crime or crime involving moral turpitude”. The last restriction in particular – that of moral turpitude – was a vague legal concept which although in a literal sense meant the violation of societal norms effectively translated to documented dishonesty, especially in the form of checks or cash arrangements. However, this definition due in part to its broad phrasing was often manipulated and weaponized in order to disenfranchise both poor white and overwhelmingly Black Voters over questionable, virtually undetectable qualms. This section of the State Constitution therefore was challenged by Alabama Voters, leading to the 1985 Supreme Court decision to invalidate Section 182 of the Alabama Constitution, which despite its seemingly Racially Neutral Vernacular, due to its mandate and result having been tantamount to state-endorsed White Supremacy, with the implied and practical outcome of disenfranchising predominantly Black voters, had violated the Equal Protection Clause and Constituted Racial (and arguably invidious) Discrimination.

   The Supreme Court, however, regarding Racial Discrimination, has recently tended to subscribe to a doctrine that falls in between the Racial Apathy and Hyper-Literalism of the Fuller Court, and the Attentiveness and Liberties of the Warren Court, known as the ‘Strict Scrutiny Test’. Devised by the late Justice Anthony Kennedy as a means of addressing government policy on racial matters and racialized motivations behind the adaptation of legal policy (whether it be in districting, accommodations, detecting policy, etc.), Kennedy liturgized that the state should address racial policies only if a “Compelling State Interest” is present, and if the discrimination or discrepancy at hand was near-irrefutable and absolute, as to avoid the overt racialization of policy. This standard was first recorded and developed within Miller v. Johnson, 515 U.S. 900 (1995), regarding the legitimacy of a proposed Redistricting Effort within the State of Georgia, in order to establish more black-majority districts within the States’ Congressional Delegation, yet at the expense of geographical and logistical continuity. Ultimately, the court ruled the redistricting effort, at least in its submitted form, to have violated the Equal Protection Clause and to have been overly racialized in nature, and contradicting the 14th Amendment, with Kennedy even stating “(The 14th Amendment’s) . . . central mandate is racial neutrality in governmental decision-making”. Therefore, the standard of strict scrutiny for racial discrimination in all forms, or any overly racialized policy was established, and given the current nature of the court alongside this precedent, a heightened equivalent, or even a variation of Strict Scrutiny would likely be utilized to determine if the Mississippi Voter Law constituted as such.

   Moreover, in the interest of further solidifying the metric in which the court would likely understand the Mississippi Law within the context of potential Racial Discrimination, we can tangibly observe the subsequent case verdict authored by Justice Kennedy to Bartlett v. Strickland, 556 U.S. 1 (2009), in which the parameters of the Strict Scrutiny were further demonstrated, also with fair pertinence to the implementation of Section II of the Voting Rights Act of 1965 upon state election practices and potential restrictions. Section II of the VRA states that; “No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees . . .”, a not so subtle overture to various mechanisms that had been implemented within the Southern United States to dismantle and disenfranchise primarily Black voters, and an attempt at preventing any future overly racialized voter policies or attempts to abridge the suffrage of the American citizenry. However, although an argument coinciding with racial discrimination could be made to intertwine Section II of the VRA and the Equal Protection Clause altogether, it would ultimately have to face the standard of Strict Scrutiny, as it had in Bartlett v. Strickland, 556 U.S. 1 (2009), in which a North Carolina redistricting attempt to preserve black representation through the metamorphosizing of a 39 % Black District in North Carolina, through the rationale of section II of the Voting Rights Act and the interests of the Equal Protection Clause, was invalidated. Kennedy asserted that in order to qualify for the parameters of the Voting Rights Act and the preservation of representation in a fair manner, the population of an area must be a majority to constitute the preservation of representation in this manner abiding by Strict Scrutiny.

This standard, although designed to address districting, could be utilized in a similar manner as a threshold to determine the racial consequence of the Mississippi Felon Restrictions and if it qualified through strict scrutiny as Racial Discrimination. Now, although according to official census studies approximately 60 Percent of Mississippi Residents who are rendered ineligible to vote by the 1890 Provision are Black, compared to the roughly 1/3 of the State population that is Black – therefore with over 16 percent of the Black population in Mississippi ineligible to vote, as opposed to under 7 percent of Whites in the state, it would seem that the impact of the law from a numerical standpoint is substantial, however due to the peculiar nature of the current court and the standard of strict scrutiny, it would likely be very difficult to pinpoint if these figures can adequately pass the standard, and given some of the recent verdicts of the court on Racial Discrimination in voting which have relied on a more stringent than ever delineation of the Strict Standard, the 1890 Mississippi Voter Provision would likely not be considered Racial Discrimination in an adequate sense by the court.

   Furthermore, regarding any potential quarrels surrounding the supposed Invidious Discrimination of the State Law, the Court has recently expressed a fair degree of tolerance and has exercised considerable leniency in allowing the States to determine their respective Electoral Laws as they see fit; with this trend having begun with Shelby County v. Holder, 570 U.S. 529 (2013), which served to invalidate Section IV of the Voting Rights Act as Unconstitutional due to the violation of Equal Sovereignty among the States, and the belief that the section and act had fulfilled its initial purpose of eradicating racial discrimination in designated states, which definitely serves to devaluate potential arguments regarding the questionable history of these states (including Mississippi) and their voter laws, with the Court giving their effective Vote of Confidence in any present or (for the most part) future actions. Beyond the Synthesis of Racial and Invidious Discrimination, the Court and the State have implemented a fairly difficult standard regarding State Election Laws to meet Invidious Discrimination, as demonstrated in Crawford v. Marion County Election Board, 553 U.S. 181 (2008), in which the Court ruled that an Indiana photo ID Law was not invidious discrimination, as it was non-discriminatory in it’s nature and intention, alongside the fact that it provided a legitimate rationale for it’s civic benefit within the democratic process, something that although not necessarily veritable, was repeatedly claimed by proponents of the 1890 Mississippi Voter Provision, which would likely be met with concurrence from the Supreme Court, especially due to the precedent of Richardson v. Ramirez, 418 U.S. 24 (1974), confirming the potential legitimacy of state restrictions on the eligibility of Felons – thereby eliminating any potential claim of invidious discrimination in the eyes of the court. Thus, we can safely reaffirm the likelihood that the Supreme Court would, as it stands today, based upon current precedent, sentiments, and principles such as Equal Sovereignty, States’ Rights to determine electoral policy, and the Strict Scrutiny Standard, that the 1890 Provision of the Mississippi Constitution would remain Constitutional, and that although a Felon’s right to vote cannot be abridged unless otherwise decreed, that otherwise would enable (in the eyes of the court) states to pass Felon Restrictions as they deem fit.

   However, for any potential detractors and dissenters of this policy, whether it be on ethical, constitutional, democratic, or rehabilitative grounds (and I put myself included in this demographic), we need not absolutely lament, for there is, as established within an antediluvian piece of American precedent a reminder of the timeless solution that is the organic popular mandate. For, in the early 19th Century, when the States were beginning to transform from landed aristocracies to more widespread suffrage, there was a fair degree of outcry that persisted in the decreasing number of states that still abided by stalwart voting restrictions. Perhaps the most infamous case of this controversy was during the Dorr Rebellion in Rhode Island, over a 1663 Colonial charter that dictated only the most elite White Male Landowners were entitled to suffrage, which had effectively relegated the state to a relic of aristocracy in the 19th Century, leading to a small yet notorious rebellion in the state led by the Republican activist Thomas Wilson Dorr. In the aftermath of this rebellion, however, several higher-level participants were prosecuted, and legal conflict emerged between supporters and detractors of the movement in what would eventually evolve into the case of Luther v. Borden, 48 U.S. 1 (1849), in which Martin Luther (unrelated to the 16th and 20th Century Priests), argued that the Rhode Island State Government before the rebellion had violated Article IV, Section IV, Clause I of the Constitution, which stated; “The United States shall guarantee to every State in this Union a Republican Form of Government”. Luther claimed that the State had violated the Guarantee of Republican Government, on account that the state had undemocratically restricted suffrage to the point there it could not constitute a Republican Government (an argument with a similar degree of relevance in the Mississippi Voter Case), and thus external judicial intervention was Constitutionally Required.

  After much deliberation, the court ultimately ruled that the matter was a ‘political question’, and therefore that it was not in the court's power to adjudicate – rather, it was Congress and the Presidency, as the most direct arbiters of Popular Will and the Popular Mandate who possessed the prerogative and responsibility to address these matters and ensure that the United States and every state herein was to be governed by the virtues of a Republic. This ruling would ultimately be utilized by the Federal Government as legal rationale for the enforcement of Democratic principles and virtues not only in the legislative process throughout our history but also in times of greater executive action to defend Republicanism such as Reconstruction and the Federal Enforcing of Desegregation. Thus, in Conclusion, this case can serve to demonstrate to all who possess concern at this law, that when safeguards are likely to fail, the best defense of the Popular Mandate is too often the Popular Mandate itself, and if one wishes for the Constitution to defend the rights of the populace, and if one believes that if Corrections is truly that – correctional – that a sentence ought to truly end at its expiration date, that the best avenue to go about doing so is through the exercise of Popular Sovereignty and Mandates set about in the Constitution. And to be resolute in our action, to better not only ourselves but the state of the Union and the state of our Republic as we embark upon the stormy sea that is the 21st Century.