Posted by Eugene Volokh:
Question About Felon Disenfranchisement Laws:
Some posts on a lawprofs' discussion list led me get a copy of
Behrens, Uggen & Manza, "Ballot Manipulation and the 'Menace of Negro
Domination': Racial Threat and Felon Disenfranchisement in the United
States, 1850-2002," which claims that many laws barring felons and
ex-felons from voting were motivated by a desire to diminish the
number of black voters.
It may well be the case that this was indeed the motivation behind
some such laws; I'm told there's pretty solid evidence for that.
Nonetheless, I was wondering about some particular items that the
articles cited, and I wonder whether there are any experts on
antebellum election laws in the South who might help me with this.
The article lists, for each state, the year in which the state's first
felon disenfranchisement law was supposedly passed. Many such laws --
for instance, in Delaware, Kentucky, Louisiana, Maryland, and Virginia
(for the rest of this post I focus only on the slave states, chiefly
because I lacked the time to check for all states) -- were first
enacted before the Civil War. Since at the time blacks could be and
were often disenfranchised simply based on their race, presumably the
disenfranchisement of felons didn't have to do with race.
According to the article, many the laws were indeed enacted in the
South right after the Civil War, so that's consistent with the theory
that they were motivated by a desire to disenfranchise blacks. But the
article also has an intriguing footnote alongside many such laws,
stating that "The first state constitution gave the state legislature
the power to restrict suffrage for criminal activity."
According to the article, Alabama, Florida, Missouri, and Texas (of
the slave states) fall into this category. The article seems to
erroneously omit such a footnote as to Mississippi, which it turns out
also fell into this category (see Miss. Const. 1817, art. VI, sec. 5).
It also doesn't note that Tennessee had a similar provision in its
1834 Constitution, though not in its original constitution. It also
doesn't note that the proposed South Carolina Constitution of 1865,
which explicitly disqualified blacks as voters, also gave the
legislature the power to "impose disqualification to vote as a
punishment for crime." This suggests that the drafters of that
particular constitution saw disqualification of felons as valuable
itself, independently of its effect on blacks voters. (I understand
why the authors of the article may have omitted this, but it still
seems worth noting.)
Now here is what puzzles me: The earlier Alabama, Florida,
Mississippi, and Texas constitutions not only gave the legislature
such power, but actually seemed to order the legislature to deny
ex-felons the vote: "Laws shall be made by the general assembly to
exclude from office, and from suffrage, those who shall have been, or
may thereafter be, convicted of bribery, perjury, forgery, or other
high crime or misdemeanor (Fla. Const. 1838, art. VI, sec. 13; see
also Alabama Const. 1819, art. VI, sec. 5; Miss. Const. 1817, art. VI,
sec. 5; Texas Const. 1845, art. VII, sec. 4.) Only the Missouri
Constitution of 1820 (art. III, sec. 14) and the Tennessee
Constitution of 1834 (art. IV, sec. 2) spoke of legislative discretion
("The general assembly shall have power to exclude . . . from the
right of suffrage, all persons convicted of bribery, perjury, or other
infamous crime," to quote the Missouri provision).
So my main question: Did the Alabama, Florida, Mississippi, and Texas
legislatures indeed fail to comply with the constitutional command
until after the Civil War, and did the Missouri and Tennessee
legislatures fail to exercise their powers?
And a supplementary question: The 1835 amendments to the North
Carolina Constitution, sec. 4, part Four, say that the legislature
"shall not have power to pass any private law . . . to restore to the
rights of citizenship, any person convicted of an infamous crime; but
shall have power to pass general laws regulating the same." This
suggests that felons might have lost the vote by having more generally
lost the rights of citizenship, even before the Civil War (the Behrens
et al. article lists the first felon disenfranchisement law as 1876,
but I wonder whether this might therefore be mistaken). State v.
Surles, 230 N.C. 272 (1949), notes that in 1854 the North Carolina
legislature in fact passed a law providing for a procedure for
restoring the rights of citizenship, but doesn't specifically discuss
the right to vote. Might North Carolina have in fact disqualified
felons from voting before the Civil War?
These turn out to be important questions to the debate about whether
some, many, or most felon disenfranchisement laws were originally
intended to disproportionately burden blacks, since such a motivation
might render them unconstitutional. If you know about antebellum
election laws, and thus know the answers to these questions, please
e-mail me at volokh at law.ucla.edu. (I'm not planning to blog on the
entirely separate question of whether felon disenfranchisement is good
policy; right now, I'm just curious about when the statutes were first
enacted in the states I identify.)
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