Last Friday, CAC filed an amicus curiae brief in the U.S. Court of Appeals for the Ninth Circuit in Farrakhan v. Gregoire, arguing that the text and history of the Fifteenth Amendment give Congress broad power to proscribe racial discrimination in voting, including felon disenfranchisement laws that operate in tandem with racial discrimination in the criminal justice system to discriminatorily deny the vote to African Americans.   Our brief is available here.

Farrakhan, which will soon be re-heard en banc by the Ninth Circuit, involves a challenge to Washington State’s felon disenfranchisement statute under the Voting Rights Act’s nationwide prohibition on voting qualifications that have the result of discriminatorily denying or abridging the right to vote on account of race.  Judges on the federal courts of appeal have divided sharply over the question whether plaintiffs may challenge a felon disenfranchisement statute under the Voting Right Act – the Ninth Circuit in Farrakhan will be the third circuit to consider the issue en banc – and the Supreme Court recently invited the Solicitor General to express the views of the United States on whether the Court should grant certiorari in a case from the First Circuit to resolve the question.

The critical constitutional issue in Farrakhan is the relationship between Section 2 of the Fourteenth Amendment and the subsequent Fifteenth Amendment.  Seizing on the fact that Section 2 recognizes the authority of states to bar criminals from voting, both the Second and Eleventh Circuits have rejected Voting Rights Act challenges to felon disenfranchisement laws, emphasizing constitutional doubts about Congress’ power to apply the Act to such statutes.   In an earlier stage of the Farrakhan litigation, Judge Kozinski, speaking for seven judges of the Ninth Circuit, raised similar arguments in a dissent from the court’s earlier refusal to hear the case en banc.

CAC’s brief offers a comprehensive analysis of the text and history of the Fourteenth and Fifteenth Amendments, and demonstrates that Congress has ample power under the Fifteenth Amendment to ban racial discrimination in voting, including felon disenfranchisement statutes that result in a discriminatory denial of the right to vote.  As the brief shows, the mention of criminal disenfranchisement in Section 2 of the Fourteenth Amendment does not affect Congress’ power to enforce the Fifteenth Amendment’s ban on racial discrimination voting.

The principal target of Section 2 of the Fourteenth Amendment was not state felon disenfranchisement laws at all, but rather how to apportion representatives for Congress in light of the fact that the newly freed slaves were now citizens – and could no longer be counted as 3/5 of free persons under the Three-Fifths Clause – but were still denied the right to vote by southern states.  Section 2 of the Fourteenth Amendment  provided that apportionment of members of Congress would be determined by the numbers of persons residing in the state, but that any state that disenfranchised male citizens over the age of 21 would lose a proportionate percentage of their congressional representation.  The penalty did not apply to states that disenfranchised those who participated in rebellion, or other crimes.  Section 2, in short, offered states a choice – extend the right to vote to the newly freed slaves or face a penalty of reduced representation in Congress.

Section 2, as it relates to racial discrimination in voting, was superseded when the American people ratified the Fifteenth Amendment.  While Section 2 of the Fourteenth Amendment permitted states to disenfranchise African Americans based on race subject to reduced representation in Congress, the Fifteenth Amendment flatly prohibited racial discrimination in voting, and gave Congress broad authority to enforce this new constitutional command.   Not only did the Fifteenth Amendment supersede Section 2 concerning racial discrimination in voting, but the framers of the Fifteenth Amendment specifically declined to carve out an exception for criminal disenfranchisement laws similar to that found in Section 2 of the Fourteenth Amendment.  Time and again during the debates over the Fifteenth Amendment, the framers rejected proposals to exempt felon disenfranchisement laws from the Fifteenth Amendment’s ban on racial discrimination in voting.  The framer insisted on, and enacted, a constitutional ban on racial discrimination in voting without any exceptions.

This text and history demonstrate that Congress’s power to enforce the Fifteenth Amendment’s guarantee of non-discriminatory voting laws and practices extends to felon disenfranchisement laws—and that this enforcement power is extensive and grants Congress broad discretion to carry out the Amendment’s mandate.  Congress’s power to enforce the Fifteenth Amendment’s guarantee of the right to vote free from racial discrimination does not stop at the prison door.   We hope the Ninth Circuit honors this text and history in its ruling in Farrakhan.

Stay tuned to Text & History for more analysis of this case as oral argument approaches.