10/21/99 Committee on the Judiciary

TESTIMONY OF

TODD F. GAZIANO

SENIOR FELLOW IN LEGAL STUDIES

THE HERATAGE FOUNDATION

214 MASSACHUSETTS AVENUE, NE

WASHINGTON, DC 20002

BEFORE THE HOUSE JUDICIARY COMMITTEE

SUBCOMMITTEE ON THE CONSTITUTION

REGARDING

H.R. 906

A BILL "TO SECURE THE FEDERAL

VOTING RIGHTS OF PERSONS WHO HAVE

BEEN RELEASED FROM INCARCERATION"

OCTOBER 21, 1999

Good morning Mr. Chairman and Members of the Subcommittee. Thank you for the opportunity to testify on H.R. 906. For the record, I am a Senior Fellow in Legal Studies at The Heritage Foundation, a nonpartisan research and educational organization. I am a graduate of the University of Chicago Law School and a former law clerk to the U.S. Fifth Circuit Court of Appeals. I also served in the U.S. Department of Justice, Office of Legal Counsel, during different periods in the Reagan, Bush, and Clinton Administrations.

H.R. 906 would purport to overrule most state laws that disenfranchise felons and other criminals and grant them the right to vote in federal elections, except for those then "serving a felony sentence in a correctional institution or facility at the time of the election." Thus, the bill would purport to overrule certain state laws in order to grant the vote to felons who are on parole or probation, or who otherwise are still serving part of their sentence under supervision such as home detention. The bill would purport to overrule other state laws in order to grant the vote to those in jail for serious misdemeanors at the time of the election. And the bill would also purport to overrule some state laws that permanently disenfranchise individuals who commit serious violent felonies (absent some form of clemency).

I will confine most of my remarks to the constitutionality of H.R. 906, which I think is certainly unconstitutional. But I do want to make two brief policy points regarding the legislation.

Unintended Effects of H.R. 906

Criminal disenfranchisement laws traditionally have served two purposes. The first is that they are part of the sanction for specified state crimes. This legitimate state purpose of setting the proper sanction to fit the crime would be partially frustrated with the enactment of H.R. 906. It is bad policy, and probably unconstitutional in itself, for Congress to try to lessen the sanction for state crimes.

The other traditional reason for criminal disenfranchisement laws is based on the notion that a large and important part of government is devoted to law enforcement. Criminal disenfranchisement allows citizens to decide law enforcement issues without the dilution of voters who are deemed either to be less trustworthy or to have waived their right to participate in those decisions.

The bill's findings note that state disenfranchisement laws affect certain communities more than others. At first blush, it seems like a laudable goal to try to eliminate such a disparity, but it is unclear to me as a policy matter what is best for communities most affected by these laws. In general, those communities that have a higher rate of crime have a higher rate of disenfranchised criminals living among them. The bill purports to correct this perceived problem by significantly increasing the number of convicted criminals who can vote in federal elections. Because dual voting records are quite hard to maintain, it would thereby increase the number of convicted criminals who would be able to vote in state and local elections. Given that many poor and minority communities are ravaged by crime, the proposed solution could have a perverse effect on the ability of law abiding citizens to reduce the deadly and debilitating crime in their communities. At least on the crime issue, it could be argued that those communities that currently have the highest level of state disenfranchisement are the most protected by those laws and would be the most adversely affected by the vote of "unreformed" convicts in their communities. The fact that so many states have these felony disfranchisement laws is strong evidence that many citizens do not want their ability to influence crime control decisions to be diluted by convicted felons on parole or otherwise.

The Constitutional Framework of Analysis

The constitutional analysis of any congressional bill is bounded by certain bedrock principles, the most important of which is as follows: if the Congress is not acting pursuant to a specific grant of power set forth in the Constitution, the legislation is unconstitutional. This is because the national government is one of limited and enumerated powers--as opposed to one of inherent powers. No citation to Supreme Court authority is necessary for this proposition, although many are available. But the federal courts' interest in this principle since the Supreme Court struck down the federal gun free school zone statute in United States v. Lopez, 115 S.Ct. 1624 (1995) is especially noteworthy.

As this Subcommittee knows, this aspect of federalism is not just wise policy to be followed whenever Congress deems it appropriate; it is specifically designed to limit Congress's appetite to encroach on state power and individual liberty. This fundamental principle of federalism is recognized not only in the Tenth Amendment, but also in the text and structure of Articles I through III, and it is strongly reinforced in the debates on the Constitution. Although the Federalists and Anti-federalists disagreed on the precise scope of federal power and the need for a Bill of Rights, everyone agreed that the national government could only exercise those powers enumerated in the written Constitution.

Of course, Members of this Committee take their oath to uphold the Constitution especially seriously or you would not schedule hearings of this nature and sit through our testimony on the constitutionality of pending bills. But some public misconceptions remain about every Member's responsibility to ensure that Congress does not attempt to pass unconstitutional legislation. As you know, it is not permissible for Congress to vote for such legislation with the expectation that the courts will make the constitutional determinations. Although the courts have their own obligation to make such determinations in a case or controversy properly before them, it is no less the duty of Congress to adhere to and be bound by the Constitution. Although many cite Marbury v. Madison for a contrary view, the opinion of Chief Justice John Marshall recognizes that each branch of government has the same duty in its own realm to act constitutionally and pass on constitutional questions. It was simply Marshall's view that the courts, no less than Congress, shared in this responsibility.

So that no person thinks my general approach to constitutional analysis is invoked selectively against this bill, let me state clearly that I think the current majority and minority in Congress are almost equally guilty of forgetting these principles of constitutional law when a popular bill is before them. I have opposed many well-meaning bills in recent years solely because they were beyond the constitutional authority of Congress to enact. This bill is no different.

Constitutional Analysis of H.R. 906 under Article I

Congress has no power to enact H.R. 906 under Article I of the Constitution, and the question is not a close one. There is no textual grant of authority to Congress in Article I to override nondiscriminatory state voting qualifications; there is no Supreme Court precedent recognizing such a power; and there are three constitutional provisions that recognize that this is an inherent state power.

Article I, section 2 provides that voters for Members of the House of Representatives "shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature." The Seventeenth Amendment contains the exact same phrase with respect to voters for U.S. Senators. This provision essentially requires states to have the same qualifications for voters in state and national elections (at least with regard to legislative elections), but it also is an explicit recognition that states have the authority to set those voting qualifications--even for Members of Congress.

Other provisions of the Constitution prohibit voting qualifications based on race, sex, and young adult status, but Section 2 of the Fourteenth Amendment implicitly recognizes that states may deny the franchise to those who have engaged in "rebellion, or other crime." Thus, the Constitution recognizes the general power of states to set voting qualifications in Article I and the Seventeenth Amendment and the specific power of states to disenfranchise those convicted of a crime in the Fourteenth Amendment.

It could be argued that these three provisions of the Constitution recognize the states' inherent authority to establish voting qualifications and disenfranchise felons rather than provide a grant of such power to the states, but that is of no less constitutional significance. Like the operation of the Eleventh Amendment, Article I, the Seventeenth Amendment, and the Fourteenth Amendment provide powerful evidence that this state power was understood to be an aspect of state sovereignty that predated the Constitution and always remained with the states. See The Federalist, Nos. 52 and 60 (where James Madison and Alexander Hamilton concur with this understanding of Article I); Alden v. Maine, 119 S. Ct. 2240, 2260-61 (1999) (recognizing that aspects of state sovereignty are of no less constitutional significance if they are proven by the existence of the Eleventh Amendment rather than protected by its text).

Article I, section 4 cannot reasonably be read as a grant of power to Congress to define the qualifications of voters in national elections. Article I, section 4 allows the states to establish the "Times, Places and Manner of holding Elections for Senators and Representatives," except that "Congress may at any time by Law make or alter such Regulations.…" "[S]uch Regulations" refers only to the "Times, Places, and Manner" of holding congressional elections--not to voting qualifications. Article I, section 4 simply cannot be read to overrule the plain meaning of section 2 and the same phrase in the Seventeenth Amendment. Although it is still a fashionable theory on some university campuses and among some special interest groups to argue that words are infinitely malleable, that approach would render a written constitution of no particular value. Members of Congress and judges faithful to their oath cannot engage in such nonsense. The text of Article I and the Seventeenth Amendment is clear.

Nor is there any Supreme Court authority for the proposition that Article I grants Congress power to establish voting qualifications. Oregon v. Mitchell, 400 U.S. 112 (1970) certainly is not to the contrary. I agree with my co-panelist, Roger Clegg, regarding his analysis of that highly fractured decision, which upheld an 18-year-old voting statute just prior to the ratification of the Twenty-sixth Amendment. The most significant feature of Oregon v. Mitchell is that eight justices rejected the Article I argument when it was squarely presented in the case. Only Justice Hugo Black relied on Article I, section 4, and no other justice of the five-member majority would join his opinion. I also believe the Court's ruling in City of Boerne v. Flores, 117 S. Ct. 2157 (1997) makes it unlikely that today's Court would rule the same way as the majority in Oregon v. Mitchell (absent the Twenty-sixth Amendment). But I want to add that even if I am wrong about the continued validity of Oregon v. Mitchell, the Court certainly would not rely on any Article I power in its decision.

There are some fascinating and complex constitutional questions about which reasonable scholars can disagree in good faith, and there are some easy questions about which no reasonable high school student ought to disagree. Whether Congress has plenary power to establish the qualifications of voters under Article I is in the latter category, and the answer is "no."

The Fourteenth and Fifteenth Amendments

Section 1 of the Fourteenth and Fifteenth Amendments render unconstitutional any state law that has as its purpose the intentional disenfranchisement of a racial group. Although state statutes that disenfranchise felons predate the Revolutionary War and may serve legitimate, nondiscriminatory ends, any statute intended to have a racially discriminatory effect is nevertheless unconstitutional. H.R. 906 is wholly unnecessary to address statutes with such a purpose, because they can and should be struck down by any court at any point in time.

Some historical evidence suggests that racial animus may have played a part in the passage or revision of a handful of states' criminal disenfranchisement laws 50-100 years ago. At least two of those states have largely repealed the offending statute. In Alabama, the courts agreed that the evidence was sufficient to conclude that one part of its statute was based on unconstitutional racial animus. See Hunter v. Underwood, 471 U.S. 222 (1985). It is unclear whether any state's current felony disenfranchisement law was passed because of racial animus. But if evidence exists that any current statute would not have passed absent racial animus, then the statute should be struck down.

However, the Fourteenth and Fifteenth Amendment do not outlaw a statute that has a disparate impact on a racial group but that lacks an invidious motive or intent. As the Supreme Court noted in the case striking down Alabama's criminal disenfranchisement statute: "[O]fficial action will not be held unconstitutional solely because it results in racially disproportionate impact. * * * Proof of racially discriminatory intent is required to show a violation of the Equal Protection Clause." Hunter v. Underwood, 471 U.S. at 227-28 (quoting prior cases). In short, the findings in H.R. 906 regarding the disproportionate racial impact of many state felony disenfranchisement laws do nothing to confer constitutional authority on Congress to address that disparity. Proof of such discriminatory intent, on the other hand, renders H.R. 906 wholly unnecessary, as the case of Hunter v. Underwood shows.

Prior to the Boerne decision, the Supreme Court upheld some congressional statutes enacted pursuant to section 5 of the Fourteenth Amendment involving voting rights. These congressional statutes were designed to prevent states from excluding racial minorities from voting through pretextual devices, such as literacy tests, which were facially neutral but had the clear history, pattern, practice, and intent of excluding racial minorities. Everyone knew that the real purpose of literacy tests was invidious discrimination and that the stated purpose was a pretext. Facially neutral statutes that have the intent of excluding one race from the equal protection of the law are unconstitutional and should be struck down by the courts. After Boerne, Congress has less power to enact prophylactic statutes that outlaw the use of such facially neutral practices in the future. But the special history, pervasive pattern and practice, and the clear invidious intent of literacy tests present a strong case for a congressional prophylactic ban on the use of that particular device, especially since it was only used in modern times as a tool of intentional discrimination.

In contrast to the literacy test example, Congress's power to pass H.R. 906 and overrule state felony disenfranchisement laws lacks all of the criteria necessary for Congress to act under section 5. H.R. 906 does not find that felony disenfranchisement laws were passed as a pretext to discriminate against racial minorities, nor could it. Forty-six states have such laws, and the type and variety of such laws shows no correlation to states with histories of racial discrimination. There is no serious evidence that any significant number of the existing statutes, if any, was passed for an improper racial motive.

Moreover, section 2 of the Fourteenth Amendment implicitly recognizes that states may have perfectly good reasons to disenfranchise those engaged in rebellion or other crimes. The framers of the Fourteenth Amendment would not have recognized these laws and made them an exception to the normal rules regarding the apportionment of Representatives in Congress if they did not believe such laws could operate in conformity with the rest of the Fourteenth Amendment. It would certainly be odd to argue that Congress could find that no state felony disenfranchisement statute passes muster under the Fourteenth Amendment when the Fourteenth Amendment itself acknowledges otherwise. The Supreme Court seemed to adopt this reasoning when it relied on section 2 of the Fourteenth Amendment to uphold a felony disenfranchisement statute against a nonracial equal protection clause challenge in Richardson v. Ramirez, 418 U.S. 24 (1974).

Even if the evidence allowed Congress to conclude that a few states passed their existing criminal disenfranchisement statutes to deny their citizens constitutional rights protected by the Fourteenth and Fifteenth Amendments and Congress stated that H.R. 906 was designed to address that problem, the proposed solution in H.R. 906 would still be unconstitutional. In Boerne, the Supreme Court stated that before Congress could legitimately invoke section 5 of the Fourteenth Amendment "[t]here must be a congruence and proportionality between the [constitutional] injury to be prevented or remedied and the means adopted to that end." Overruling the laws of the other 46 states regarding criminal disenfranchisement and preventing all 50 states from reenacting any that are not in conformity with Congress's dictates is not proportional to any constitutional violation identified in the bill.

There being no other arguable constitutional basis for Congress to act on H.R. 906, it must be concluded that H.R. 906 is unconstitutional.