Attorney General Calls for End to Felony Disenfranchisement Laws

by Jesse Grauman

Attorney General Eric Holder this week offered welcome support for ending the practice of felony disenfranchisement. Arguing that “permanent exclusion from the civic community does not advance any objective of our criminal justice system,” Attorney General Holder called for “clear and consistent reforms to restore the voting rights of all who have served their terms in prison or jail, completed their parole or probation, and paid their fines.”

While the degree of felony disenfranchisement varies by state, eleven states permanently disenfranchise at least some formerly incarcerated persons unless the state’s government approves the restoration of voting rights on an individual basis. Three of those states – Iowa, Florida and Kentucky – permanently disenfranchise all formerly incarcerated persons with felony convictions absent individual rights restoration.  An additional 24 deny the right to vote to those who have been released from prison but remain on parole, and 20 of these states disenfranchise those on probation as well.

As a result, approximately 5.8 million Americans are prohibited from voting as a result of felony disenfranchisement laws. These laws have a disproportionate impact on African-Americans, with nearly one in 13 African-American adults barred from voting, including one in eight African-American men nationwide and one in five African-Americans in Florida, Kentucky and Virginia.

These disparate impacts are not only due to the massive racial disparities that exist in our criminal justice system. Rather, many such laws were passed in the aftermath of Reconstruction as a means of denying the franchise to African-Americans. Eleven states passed felony disenfranchisement laws for the first time, or significantly expanded existing laws, in the decade after the Civil War, and states with larger proportions of nonwhites in their prison populations have been more likely to pass such laws. Indeed, in 1985, the Supreme Court unanimously struck down a felony disenfranchisement provision in Alabama’s state constitution in Hunter v. Underwood, finding that the provision, although neutral on its face, was enacted with discriminatory intent. As the Court noted, “the Alabama Constitutional Convention of 1901 [when the measure was passed] was part of a movement that swept the post-Reconstruction South to disenfranchise blacks” and the president of that convention stated that its goal was “to establish white supremacy in this State.”

Attorney General Holder placed the primary onus for reform on “state leaders and other elected officials,” and given that state laws are the source of felony disenfranchisement, they are the logical place to turn.  Indeed, some states have taken commendable steps, with a total of 23 enacting reforms since 1997. In addition, advocates have voiced support for a federal legislative response such as the Democracy Restoration Act, which would ensure that formerly incarcerated persons can vote in federal elections but would not address restrictions on voting in state or local elections.

Some argue that the Constitution itself bars felony disenfranchisement laws, even in the absence of the racially discriminatory intent found in Hunter.  In 1974, however, the Supreme Court declined to find felony disenfranchisement laws unconstitutional in Richardson v. Ramirez.  The Court based its holding on Section 2 of the Fourteenth Amendment, which requires the reduction of a state’s congressional representation if the state denies the right to vote to male inhabitants 21 or older for any reason “except for participation in rebellion, or other crime.”  Although this section was enacted to persuade Southern states to grant the vote to African-Americans by threatening to penalize the states with the loss of representation, the Court found that the “other crime[s]” exception permits states to deny voting rights to individuals with felony convictions.  Three justices dissented, with Justice Thurgood Marshall arguing that “Section 2 [of the Fourteenth Amendment] was not intended and should not be construed to be a limitation on the other sections of the Fourteenth Amendment,” most notably the Equal Protection Clause.  Justice Marshall would have found that felony disenfranchisement laws must still be subjected to strict scrutiny under Equal Protection analysis, and that the law at issue in Richardson failed that test because it was not necessary to promote a compelling state interest.

Although Richardson has not been overturned, scholars have argued that constitutional grounds still exist for challenging felony disenfranchisement laws. Stanford Law School Professor Pamela Karlan, now on leave serving as a Deputy Assistant Attorney General in the DOJ’s Civil Rights Division, has advocated for a view that the Eighth Amendment’s prohibition on cruel and unusual punishment prohibits lifetime disenfranchisement because such a penalty is grossly disproportionate and does not comport with contemporary standards. Gabriel Chin, professor of law at UC Davis School of Law, has argued that the Court’s holding in Richardson should be revisited because Section 2 of the Fourteenth Amendment was implicitly repealed by the Fifteenth Amendment, which rendered Section 2’s indirect approach to African-American suffrage a nullity by expressly guaranteeing that the right to vote may not be abridged on account of race. Janai Nelson, professor of law at St. John’s University School of Law, has proposed that felony disenfranchisement laws constitute impermissible viewpoint-based restrictions on freedom of speech under the First Amendment to the extent that they are motivated by beliefs as to how formerly incarcerated individuals may vote.

Whether the ultimate solutions will be found at the federal or the state level, and whether they will come through legislation or litigation, it is welcome to see prominent policymakers on both sides of the political aisle – from Attorney General Holder to Senator Rand Paul (R-Ky.) – bring attention to the issue of felony disenfranchisement. Those who have served their sentences under the law and paid their debts to society should not be further punished by being forever denied the fundamental right to participate in the political process.

The Carliner Award: Not Just for the Victorious

by Kara Hartzler, Attorney, Federal Defenders of San Diego, Inc.; Member, Board of Directors, ACS San Diego Lawyer Chapter; Recipient of the 2013 ACS David Carliner Public Interest Award

When I applied for the David Carliner Public Interest Award last year, I didn’t do it because I had a stunning track record of court victories, a list of successful published decisions, or a résumé chock-full of wins. I did it because I am a giant loser.

In my work as a lawyer at a non-profit immigration rights organization in Arizona, losing was the name of the game. The vast majority of our clients had no way to fight their cases and were merely biding their time before an immigration judge would order them deported. Even the ones who did have a way to fight their cases were usually greeted by an insurmountable trifecta of bad precedent, hostile judges and an agency appellate body with a not-so-subtle agenda. I lost case after case and quickly learned to advise my clients of two things: the law as it was on the books versus the law as it would be applied to them. On any given day, the best I could hope for was a batting average that was a fraction as good as the worst major league baseball player.

And in my current job as an appellate attorney for the Federal Defenders of San Diego, Inc., my win/loss ratio has actually declined, if such a thing is possible. Despite practicing in front of the Ninth Circuit—a court derided by conservatives as a liberal bastion of judicial activism—I have yet to win a single criminal case. It’s a really good thing I went for a JD rather than an MBA because any CEO worth his salt would have tossed me out on the street long ago.

But somehow that didn’t keep me from being awarded the 2013 ACS David Carliner Public Interest Award. Here’s why: the award wasn’t created for winners. By its nature, progressive social change comes very slowly and is fought like hell by those who oppose it. And those who fight like hell to oppose change are not even as effective in defeating it as those who are indifferent to it—those who refuse to consider a new interpretation of the law simply because they’ve never heard of it before.

One of the biggest disillusionments of being a lawyer is realizing that a particular legal argument’s chance for success has very little to do with the merits of the argument and everything to do with the time and place in which it’s presented. Usually, a novel legal argument has to lose at least a dozen times or more before it wins—even though the version that’s ultimately successful was cut and paste from the very same draft that was laughingly derided the last time around.

And that’s where David Carliner comes in. Every time I’m at the bottom of the hill, looking Sisyphus-like at the new boulder I have to roll up it, I say: c’mon, Kara, is this really harder than challenging bans on interracial marriage in 1954? Is this really harder than defending LGBT rights pre-Stonewall? Is this really harder than defending the right to travel to Communist countries at the height of the Cold War? David Carliner did all those. And even if he didn’t win every case, he seeded the legal landscape with the ideas necessary so the next person could. So if you think you have a bigger boulder to roll than he did, you’re kidding yourself. Quit whining and get back to work.

The bottom line is this: the Carliner Award is not for winners. It’s for people who gut it out in the shadows. It’s for people who butt their heads against a seemingly impenetrable wall countless times and come back after every concussion.

The thing they never taught you in law school is that being a progressive lawyer isn’t just about the substance of your argument. It’s also about being stubborn enough to outlast your adversary and make yourself a giant thorn in the side of the system day after day.

Calling all Carliner Award hopefuls: losers strongly encouraged to apply.

Exploring the Limits of Presidential Power

by Chris Edelson, Assistant Professor of Government, American University School of Public Affairs

In March 2009, about a month after President George W. Bush and Dick Cheney left office, Scott Horton declared that “[w]e may not have realized it, but in the period from late 2001-January 19, 2009, this country was a dictatorship.  That was thanks to secret memos crafted deep inside the Justice Department that effectively trashed the Constitution.”  Some of the most infamous of these memos were drafted by John Yoo, an Office of Legal Counsel attorney from 2001-2003.  Yoo and others – most notably, Cheney’s counsel, David Addington – advanced the unitary executive theory, a theory of presidential power Cheney had personally favored for decades.

The unitary executive theory, as implemented by the Bush administration, was claimed to justify effectively unchecked presidential power over the use of military force, the detention and interrogation of prisoners, extraordinary rendition and intelligence gathering.  According to the unitary executive theory, since the Constitution assigns the president all of “the executive power”, he can set aside laws that attempt to limit his power over national security.  This is an enormous power: critics charge that it effectively places the president above the law.  Advocates of broad presidential power argue it is necessary to defend the nation against the threat posed by terrorism.

In the fall of 2009, I was designing a new class on presidential national security power—what I call “emergency presidential power”.  I call it “emergency” power because presidents have often claimed the need for extraordinary power during emergency or crisis—whether real or contrived.  Such power has sometimes been wielded unilaterally, sometimes with congressional authorization—or, perhaps it would be better to say, claimed authorization.

I was interested in providing a way for students to understand and assess the ways in which presidential power has been used since 9/11.  In order to do this, I wanted to begin by providing historical context, starting with the origins of the Constitution and continuing by examining the historical use of emergency presidential power before the September 11 attacks.  This would provide a useful way to understand what had happened after 9/11, and to consider whether the Bush administration had acted legitimately.

I did not intend to present a specific argument as to the best way to define emergency presidential power.  Instead, I wanted to present students with the evidence and the arguments made by both sides.  How had the Bush administration justified its actions?  How had critics responded?  Who had the best case—taking the text of the Constitution, historical evidence, judicial precedent, and interbranch practice into account?  As I planned for the course, I looked for a textbook I could use.  When I couldn’t find anything that looked like an exact fit, I decided to design my own materials.

Over the past four years, those materials developed into Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror.  The book begins with foundational materials – the Constitution itself and its origins, the Federalist Papers, Washington’s Neutrality Proclamation and the related Pacificus-Helvidius debate – followed by presidential practice since Washington.  I discuss the odd history of the sole organ doctrine, the question as to whether Lincoln constitutionalized Lockean prerogative, Roosevelt’s actions during World War Two, Truman during the Korean War, and Nixon’s use of power against his critics and political opponents. Historical discussion sets the stage for examination of the post 9/11 presidency, beginning of course with the Bush administration.  Along the way, I have added chapters about the Obama administration.  As a candidate, Barack Obama criticized the Bush administration’s approach to emergency power and promised to restore the rule of law.  As president, Obama and executive branch lawyers have found ways to justify broad presidential power, for instance by unilaterally authorizing military action in Libya and ordering the killing of Anwar al-Awlaki, a U.S. citizen and AQAP member who the administration said had taken an operational role in planning attacks against the United States.  (The Syria episode took place too late to include in this book).

The book provides students, and anyone interested in the debate over the scope and limits of emergency presidential power, with the raw materials needed to make sense of the debate.   It is essential, of course, to understand scholarly perspectives, and I explain the differences between scholars like Louis Fisher, who emphasizes checks and balances, the need to place presidential power under the rule of law, and Adrian Vermeule or Eric Posner, who argue that presidential power cannot be, and should not be, restrained by the rule of law.

Harold Koh is a scholar who earned a reputation as a critic of unrestrained presidential power and, before 2009, would have been associated with the Fisher camp.  In 2008, Koh predicted that, when it comes to the rule of law, “the last eight years are far less important than the next [eight] years.”  I think he was right, but I am not sure yet what the verdict is.  More than five years after Koh made his statement, the question today is whether the Obama administration (in which Koh served as an executive branch lawyer) has, in fact, taken a substantively different approach than the Bush administration when it comes to defining presidential power.   That will continue to be a central question as President Obama finishes his second term, and when future presidents take office.  As the amorphous “war on terror” continues on, with no clear end in sight, the essential problem for constitutional democracy will be whether executive branch officials, lawyers, and scholars can find ways to ensure that presidents have the ability to defend the nation while also ensuring that power is limited by the rule of law.  I hope that this book provides some ways to think about this problem, and to arrive at some satisfactory solutions.

ACS’s ‘Toward a More Perfect Union’ Provides Ideas, Proposals for Second Obama Term

by Jeremy Leaming

Nearly a week after providing a staunchly liberal vision for a second term –– leading law professors, attorneys and other advocates are providing via an ACS project ideas and proposals for the administration’s second term. (Regarding the tone and vision of the president’s second Inaugural Address, some apparently believe the president was merely defending New Deal programs and policy the Clinton administration had supposedly advanced.)

The ACS project, “Toward a More Perfect Union: A Progressive Blueprint for the Second Term,” was recently launched with three Issue Briefs:

Former U.S. Pardon Attorney Margaret Colgate Love looks at why the presidential pardon power “has lost its vigor, its integrity, and its sense of purpose,” and argues why it should be reinvigorated, as well as offering examples, many from the states, for reforming the process.

Brookings Visiting Fellow Russell Wheeler examines the Obama administration’s record of filling federal judgeships during his first term and puts forth ideas for fixing a judicial nominations process that has become increasingly rancorous and ineffective. In a Brookings’ Up Frontblog post, Wheeler, a leading expert on the federal bench, explains, in part, why the process needs reforming. “First, judicial vacancies, which declined in Clinton’s and Bush’s first terms, increased during Obama’s. Empty judgeships hamper the federal courts’ ability to do their jobs – to sort out contractual disputes and other matters that, left unresolved, contribute to economic uncertainty, as well dispose of criminal complaints and adjudicate claims of discrimination and civil liberties violations.”

University of Michigan Law School Professor David M. Uhlmann urges the Obama administration to exert great presidential leadership on climate change. Uhlmann, director of the law school’s Environmental Law and Policy Program, noted the small steps the Obama administration took during its first term. But, citing the work of climate scientists, Uhlmann warns that if our country fails “to limit greenhouse gas emissions, searing heat, widespread drought, destructive storms, and massive flooding will become commonplace.” Moreover, Uhlmann argues that climate change will be a “legacy issue” for the president – “either because he helped chart a course toward a sustainable future or because America failed to act while it was still possible to prevent catastrophic climate change. Uhlmann’s Issue Brief goes on to provide ways for the president to act, even without the help of Congress, to put the nation on a path toward sustainable resources.

During his second inaugural, the president reminded us that “preserving our individual freedoms ultimately requires collective action” and unlike too many of his predecessors lauded the noble goal of advancing equality. Obama also took a shot at right-wing economic policy that is all about coddling the superwealthy at the expense of everyone else.

The president also called for collective action on climate change.

“We, the people, still believe that our obligations as Americans are not just to ourselves, but to all posterity,” Obama said. “We will respond to the threat of climate change, knowing that the failure to do so would betray our children and future generations. Some may still deny the overwhelming judgment of science, but none can avoid the devastating impact of raging fires and crippling drought and more powerful storms.”

He continued the “path towards sustainable energy sources will be long and sometimes difficult. But America cannot resist this transition, we must lead it.”

The ACS Project is not only intended for the administration. We hope the work inspires, informs and sparks discussion. The forthcoming Issue Briefs to conclude the series will focus on homeland security, bolstering liberty through ‘mutual aid,’ immigration reform, the indigent defense system, modern tools for advancing equal opportunity and an examination of the FEC’s actions, or lack thereof, to regulate the financing of federal elections.

Our Liberal Constitution

By Adam Winkler, a professor at the UCLA School of Law, and author of Gunfight: The Battle over the Right to Bear Arms in America. This post is part of an ACSblog Constitution Day Symposium.

Over the past three decades, conservative legal commentators have promoted a narrative about our Constitution that puts our hallowed text at odds with the goals of liberals. The Constitution, this story goes, is a profoundly conservative document whose words and principles tilt favorably towards the policy goals of today’s Republican Party: Small government. Law and order. Hostile to gay rights. Opposed to campaign finance law and affirmative action. Favoring nearly unbridled executive power in matters of war and foreign policy. If only jurists stuck to history – by interpreting the text by way of original intent or, alternatively, original meaning, rather than the living constitutionalism favored by Warren Court liberals – we would see the Constitution in its true light.

There’s just one problem with this story. It’s not true.

The Constitution was designed by the Framers to be a radically progressive document. The founding generation was comprised of revolutionaries, people who sought to make a new system of government that broadened rights rather than limited them. Their handiwork was itself thoroughly reformed by another group of progressives: the radical Republicans who added the Reconstruction Amendments. Over and over again, the Constitution has been revised by people inspired by liberal ideas, from the populists who sought the direct elections of senators to woman rights proponents who fought for the right to vote. Taken as a whole, the Constitution is anything but a conservative document. And while its words and principles don’t favor any political party, many of its core ideas support the policy goals of modern-day liberals.

Take, for instance, the argument that the Constitution favors small government. It is undoubtedly true that the framers wanted to circumscribe the power of government; that’s why we have the separation of powers, federalism, and a Bill of Rights. Yet often ignored is that the Framers crafted the Constitution to expand the powers of government so that Congress could effectively solve national problems. The document the Constitution replaced – the Articles of Confederation – hobbled government too much and the men who met in Philadelphia sought to rectify that error.

While the federal government is indeed one of limited powers, as it should be, when acting pursuant to an enumerated power, federal authority is plenary. Some critics of the modern Supreme Court say Congress has assumed a much broader power under the Commerce Clause than originally intended because of misguided interpretations of the Supreme Court. Yet what has grown is not so much the formal power as the amount of commerce among the several states. The framers didn’t envision Congress’s current authority – because they couldn’t have imagined the current national economy.

Nor is the document favorable to the law and order views that have animated so much of the conservative backlash against the Warren Court’s criminal justice rulings. Look at the Bill of Rights. Almost all of its provisions are protections for accused criminals. The Constitution was designed to make it hard to convict someone of a crime, not make it easy. And while the drafters of the 14th Amendment never thought about how its words would apply to questions of gay rights, the text makes no distinctions on the basis of sexual orientation and demands equal protection of the laws and due process for everyone. Affirmative action? No Congress has adopted more racial preferences than the Congress that proposed the 14th Amendment for ratification.

One could go on and on. The basic point remains the same. Our Constitution is deeply imbued with liberal values. We don’t need a living Constitution to advance the principles of equal citizenship. All we need is to stay true to our Constitution’s text and the bold, progressive principles it embodies.

'To Promote the General Welfare'

By Martha F. Davis, Professor of Law, Northeastern University School of Law.

The national Constitution is a singular document, but it is not unique. All 50 states of the U.S. and Puerto Rico have their own constitutions, some of which -- through text or interpretation -- stake out approaches that are very different from the federal document. It is worth thinking about the alternative paths that these state documents take, and the possibilities that they raise, as we celebrate and critique the national Constitution on this Constitution Day.

This entry focuses on one area of significant difference between state and federal constitutions: their treatment of economic and social rights.

The national Constitution addresses economic and social rights prominently but with little specificity. The Preamble states that an overriding purpose of the U.S. Constitution is to “promote the general welfare,” indicating that issues such as poverty, housing, food and other economic and social welfare issues facing the citizenry were of central concern to the framers. However, the Bill of Rights has been largely construed to provide procedural mechanisms for fair adjudication of those rights rather than carving out claims on the government to ensure that individuals actually have any social and economic assets to protect. Efforts to convince courts of alternate constitutional interpretations have generally failed. The Supreme Court has ruled, for example, that while the due process clause of the 14th amendment ensures fair processes for welfare recipients, there is no underlying constitutional right to a minimum standard of living. Similarly, the Supreme Court has not found a general right to education derived from the more explicit constitutional guarantees of political participation and equal protection that might be deemed to presuppose an educational baseline.

Many state constitutions, in contrast, articulate positive rights to welfare, health, education, and the right to work. One of the most specific of these provisions, article XVII of the New York State Constitution, states that “the aid, care and support of the needy are public concerns and shall be provided by the state…in such manner and by such means” as the legislature shall determine. The Constitution of North Dakota provides a similarly specific right to education, stating that “the legislative assembly shall provide for a uniform system of free public schools throughout the state.” Alaska’s constitution, adopted at the time of statehood in 1959, addresses the public health of state inhabitants, as does Hawaii’s, which states that “the State shall provide for the protection and promotion of the public health.” Finally, many state constitutions also address the affirmative right to work and the right to organize as members of trade unions. For example, the New York State Constitution states, “employees shall have the right to organize and to bargain collectively through representatives of their own choosing.” Several state constitutions also specifically address working hours and working conditions.

In adjudicating economic and social rights, state courts are often dealing with texts substantially different from and more specific than the federal constitutional treatment of these rights. But at a minimum, the state constitutional experience certainly demonstrates that these matters, critical to the general welfare, are of appropriate constitutional concern. In a different time, and with a different Court, the General Welfare clause of the U.S. Constitution might be linked to a more robust understanding of constitutional equality to give substantive meaning to the Bill of Rights. Given the textual support for this approach to federal constitutional interpretation, it is hard to see how even Justice Scalia could object.