Reawakening Privileges or Immunities : An Originalist Blueprint for Invalidating State Felon Disenfranchisement Laws

Terrence Johnson, Jim Harris, and Alexander Friedman, all Tennessee residents, have a few things in common. All are convicted felons: Johnson for federal wire fraud, Harris for drug offenses and burglary, and Friedman for assault and aggravated armed robbery.\u27 All had completed their respective terms of imprisonment, parole, and probation for those offenses by February 2008. But all nevertheless were saddled with various unpaid legal obligations: Johnson with $40,000 in restitution in connection with his offense and $1,200 in overdue child support payments; Harris with $2,500 in overdue child support payments; and Friedman with $1,000 in restitution in connection with his offenses. Finally, all wished to vote in the 2008 election4 but could not do so because of a Tennessee statute that conditions the restoration of voting rights for those rendered infamous because of a criminal conviction on the payment of court- ordered restitution and child support obligations. The trio filed suit in advance of the election, hoping to invalidate the statute and, in Johnson\u27s words, have the opportunity to become ... fully productive citizen[s] again. But in September 2008, a federal judge rejected their challenge. As a result, when the November election arrived, these men simply could not vote. While disenfranchisement laws like Tennessee\u27s may seem extreme, U.S. courts consistently have rejected challenges to statutes that disenfranchise felons both during and after their terms of incarceration. In the leading case on the subject, Richardson v. Ramirez, the Supreme Court confronted the issue of whether a California law excluding ex-felons from the franchise could withstand the strict scrutiny analysis ordinarily required for suspect classifications under the Equal Protection Clause of the Fourteenth Amendment. The Court did not address this question directly, however, instead finding affirmative sanction for felon disenfranchisement laws in the rarely invoked Section 2 of that Amendment. That Section provides, in pertinent part: [W]hen the right to vote at any election.., is denied to any of the male inhabitants of such State ... or in any way abridged, except for participation in rebellion, or other crime, the basis of [the State\u27s] representation [in Congress] shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State