The First Amendment, Equal Protection, and Felon Disenfranchisement: A New Viewpoint

This Article engages the equality principles of the First Amendment and the Equal Protection Clause to reconsider the constitutionality of one of the last and most entrenched barriers to universal suffrage—felon disenfranchisement. A deeply racialized problem, felon disenfranchisement is additionally and independently a legislative judgment as to which citizen\u27s ideas are worthy of inclusion in the electorate. Relying on a series of cases involving state interests in protecting the ballot and promoting its intelligent use, this Article demonstrates that felon disenfranchisement is open to attack under the Supreme Court\u27s fundamental rights jurisprudence when it is motivated by a desire to limit political expression based on its perceived content; in other words, when felon disenfranchisement is motivated by viewpoint discrimination. The justifications for felon disenfranchisement laws reflect a misguided perception of how a voter\u27s identity, status, or behavior will affect how he votes. This Article confronts these justifications and examines the linkages between the right to vote and First Amendment protections of freedom of speech. Recognizing the difficulty in proving legislative motive in electoral decisions, this Article draws upon the underexplored theory of First Amendment Equal Protection, as well as the Court\u27s jurisprudence in the area of partisan gerrymandering to formulate the claim of viewpoint discrimination and demonstrate increasing judicial intolerance for legislative tampering in the electoral process with suspect motives. Through its viewpoint discrimination analysis, this Article also lays bare the multidimensional impact of felon disenfranchisement in terms of race, class, and partisanship, thereby highlighting the particular segments of society whose political participation and freedom of expression are most directly infringed by felon disenfranchisement—and, perhaps, the underlying motivations for the practice