Looking for the Constitution in Rand Paul's proposed felon voter law

Last month, Senator Rand Paul of Kentucky proposed a federal law that would guarantee the right of ex-felons to vote in federal elections. The text of the bill, S.B. 2550, has just been released.

It's just missing one small things: a constitutional basis for the federal government to enact such a law.

A few months ago, a group of senators, led by Senator Ben Cardin, introduced S.B. 2235, the Democracy Restoration Act, that would do a similar thing.

But what, exactly, is the constitutional basis for Congress extending the right to vote to ex-felons in federal elections?

It isn't, as Section 2(2) of Mr. Cardin's bill says, the Times, Places and Manner Clause, which Arizona v. Inter Tribal Council expressly notes precludes federal authority over voter qualifications (and, indeed, apparently killed Oregon v. Mitchell in the process regarding federal power over voter qualifications in federal elections).

Section 2(3) of Mr. Cardin's bill cites "[b]asic constitutional principles of fairness and equal protection," which is not exactly a basis for legislative authority. The third sentence of the section cites the 13th, 14th, 15th, 24th, and 26th amendments empowering "Congress to enact measures to protect the right to vote in Federal [ed: this power also extends to state] elections," which is true, but does not necessarily (except, see below) empower Congress to enforce qualifications regarding felon status. And the third sentence of the section cites the 8th Amendment's ban on cruel and unusual punishments, which is certainly correct, but, alas, does not empower of Congress.

Section 2(4)(C) or Mr. Cardin's bill notes that felon disenfranchisement law "disproportionately impact racial and ethnic minorities," (see also Section 2(10)-(11)), which is certainly the case--the harder question, under existing Supreme Court jurisprudence, is whether a racially disparate impact is a sufficient basis for the exercise of congressional power to expand voter qualifications under the Reconstruction Amendments--which, I think, is a great question, and would likely fracture the majority that wrote the statements in Inter Tribal regarding the congressional power over voter qualifications.

So that's, I think, the best possible constitutional hook for Mr. Cardin's bill.

Mr. Cardin's bill would enfranchise all ex-felons, violent, non-violent, and those who convicted of an election-related felony.

Mr. Paul's bill does something different.

First, Mr. Paul's bill extends only to "non-violent" ex-felons, "non-violent" meaning crimes that defined as crimes of violence under 18 U.S.C. § 16 and analogous state laws.

Second, Mr. Paul's bill excludes felons serving a term in prison from the scope of his bill, and those serving a term of probation if it's less than one year (or the first year of a longer probation term). Mr. Cardin's bill extends to enfranchise those who are serving a term of probation.

Third, Mr. Paul's bill includes no mention of a constitutional basis for enacting this law.

Given Mr. Paul's abiding concern over the scope of federal authority in other areas, I found the complete lack of any constitutional hook as a slight surprise.

Perhaps Mr. Paul would rely on similar constitutional bases as Mr. Cardin, but he would run into some of the same problems. At best--in my own understanding of the Constitution's authority granted to the federal government--he might be able to argue that the disparate impact of felon voting laws on racial minorities would authorize Congress to enact this law, pursuant to its power under the Reconstruction Amendments.

But that constitutional claim is not made explicitly. And we are left merely to guess.

Portions of this post originally appeared in emails sent to the Election Law listserv.

McCutcheon in non-election law litigation

In McCullen v. Coakley (PDF), the Supreme Court found that a Massachusetts law prohibiting congregating within 35 feet of abortion clinics to be in violation of the First Amendment's guarantee of the freedom of speech. The Court referred to its recent opinion in McCutcheon v. Federal Election Commission (PDF).

The basis? One of process. Chief Justice Roberts wrote the plurality in McCutcheon, in which he refused to decide which level of scrutiny to use, concluding that the campaign finance restriction at issue failed either proposed test. He also wrote the majority in McCullen, in which there was a question about which test should apply:

The Court does sometimes assume, without deciding, that a law is subject to a less stringent level of scrutiny, as we did earlier this Term in McCutcheon v. Federal Election Commission. But the distinction between that one and this one seems clear: Applying any standard of review other than intermediate scrutiny in McCutcheon--the standard that was assumed to apply--would have required overruling a precedent. There is no similar reason to forgo the ordinary order of operations in this case.

Justice Scalia, who joined the plurality in McCutcheon, was not convinced in his opinion concurring in the judgment in McCullen:

Just a few months past, the Court found it unnecessary to "parse the differences . . . between two [available] standards" where a statute challenged on First Amendment grounds "fail[s] even under the [less demanding] test." McCutcheon. What has changed since then? Quite simple: This is an abortion case, and McCutcheon was not.[fn.2] By engaging in constitutional dictum here (and reaching the wrong result), the majority can preserve the ability of jurisdictions across the country to restrict antiabortion speech without fear of rigorous constitutional review. With a dart here and a pleat there, such regulations are sure to satisfy the tailoring standards applied in . . . the majority's opinion.

[fn.2]: The Court claims that McCutcheon declined to consider the more rigorous standard of review because applying it "would have required overruling a precedent." That hardly distinguishes the present case, since, as discussed later in text, the conclusion that this legislation escapes strict scrutiny does violence to a great swath of our First Amendment jurisprudence.

Detroit News op-ed: "Fix Michigan election law"

I wrote an op-ed that appears in today's Detroit News. It begins:

Over 1,200 Detroit-area registered voters signed petitions to get Congressman John Conyers, D-Detroit, on the August 5 primary ballot.

Under normal circumstances, that would assure him a spot—Michigan law only requires 1,000 signatures.

But the Wayne County Clerk concluded that Mr. Conyers fell 400 signatures short because of a law that requires petition circulators to be registered voters. Two women who circulated petitions on Mr. Conyers’s behalf were not registered to vote.

Michigan has had this law on the books for a half century, but it’s hard to figure out why. Supporters have suggested a variety of reasons this law makes sense: it prevents fraud, it ensures that only people who care enough to register to vote circulate petitions—and regardless, the burden is not great.

These reasons are inadequate.

Colorado files petition for rehearing en banc in Guarantee Clause case

I've blogged about the Tenth Circuit's decision on Kerr v. Hickenlooper, which extended legislative standing and found the Guarantee Clause justiciable for legislators challenging an initiative that requires tax increases to be approved by the voters before taking effect. (I wrote a piece for Jurist on the matter here.) The Governor has petitioned the Tenth Circuit for rehearing en banc; the petition is available at Scribd here.

National Popular Vote passed in New York legislature

After perceived shortcomings in the electoral college in the 2000 election, and after Bush v. Gore, the National Popular Vote ("NPV") was introduced as a mechanism to convert the election of the president from the electoral college to popular vote. The goal was to avoid federal involvement: rather than enact a constitutional amendment, the NPV could garner support from individual states to give their electoral votes to the winner of the national popular vote, rather than the winner of their own state's popular vote.

Such unilateral disarmament would not be politically feasible, so the NPV included a trigger that conditioned it taking effect only when states comprising a majority of the electoral college's votes (at least 270) had enacted the legislation.

There was a flurry of enactments several years ago, but the pace slowed. That said, progress continues. Yesterday, New York's assembly joined its senate in supporting the interstate compact. The NPV is halfway toward taking effect; 136 electoral votes' worth of states have passed it. If signed by Governor Andrew Cuomo, it would push up to 165 votes.

As the proposal has been more popular in Democratic-controlled state legislatures, there are few big prizes left for NPV supporters, as California (55 electoral votes) and Illinois (20) have already enacted it. It has made progress previously in Pennsylvania (20). This year, it remains actively pending in Arizona (11), Connecticut (7), Nebraska (5), and Oklahoma (7). (The Wikipedia entry has excellent citations to the pending legislation.)

I've written extensively about the electoral college. I've concluded that the NPV likely fails absent congressional consent because it runs afoul of the Compact Clause, which prohibits states from entering agreements with each other that shift the balance of political power toward compacting states. I've also written about the "invisible federalism" undergirding presidential elections and explained that complications would arise should we decide to have 50 states' individual elections commingled into a single nationwide election.

Several more states would need to enact the compact before it takes effect, but New York's support shows that the issue is not over yet.