Testimony of

Gillian E. Metzger

Staff Attorney, Brennan Center for Justice at New York University School of Law

Before the House Judiciary Committee

Subcommittee on the Constitution

on

Constitutional Issues Raised by the Civic Participation and Rehabilitation Act

October 21, 1999

Mr. Chairman and members of the Committee:

Good morning. My name is Gillian Metzger. I am a staff attorney at the Brennan Center for Justice at New York University School of Law, and one of my areas of specialization is felon disenfranchisement. The mission of the Brennan Center is to develop and implement an innovative and nonpartisan agenda of scholarship, public education, and legal action that promotes equality and human dignity, while safeguarding fundamental freedoms. Supporting efforts to eliminate restrictions on the right to vote, such as provisions disenfranchising criminal offenders, is an integral part of the Brennan Center's mission.

I am honored that you have invited me to testify before this Committee concerning H.R. 906, the Civic Participation and Rehabilitation Act of 1999, which would grant persons who have been released from incarceration the right to vote in federal elections. Attached to my testimony is a more detailed memo I wrote analyzing the constitutionality of H.R. 906.

I will be limiting my remarks to discussing Congress' authority to enact H.R. 906. I believe there are two possible bases for Congress' power to enact this bill: the Election Clause of Article I, section 4, combined with Congress' inherent power to regulate all federal elections, and Congress' enforcement powers under the Fourteenth and Fifteenth Amendments. In what follows, I first discuss the Election Clause and Congress' inherent power, identify possible arguments that could be raised against Congress' ability to enact H.R. 906 on this basis, and then explain why I don't believe that these arguments are sound. I then undertake a similar analysis of Congress' authority to enact H.R. 906 under its enforcement powers.

At the outset, the view that Congress has direct power to set the qualifications of voters in federal elections is supported by the Court's decision in Oregon v. Mitchell, 400 U.S. 112 (1970). Mitchell upheld Congress' ability to lower the age for voting in federal elections at the same time as it denied Congress' power to do so regarding state elections. Although a majority of Justices did not agree in Mitchell on the basis for Congress' power to lower the age for voting in federal elections -- with one basing it on the Elections Clause and the others on Congress' enforcement powers -- the Court itself has not viewed this disagreement as undercutting the import of Mitchell's holding. Instead, it subsequently cited Mitchell for the proposition that "Congress has the power to establish voter qualifications" for federal elections. Kusper v. Pontikes, 414 U.S. 51, 57 n. 11 (1973). Thus, under the Supreme Court's last pronouncement on the specific point of congressional power to set voter qualifications for federal elections, H.R. 906 is clearly constitutional.

I. The Election Clause and Congress' Inherent Authority to Regulate Federal Elections

In assessing the constitutionality of H.R. 906, it is important to bear in mind that the bill only applies to federal elections. This fact is particularly important because of the very broad power that Congress has to regulate federal elections under the Elections Clause of Article I, section 4. The Elections Clause provides that "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." Although the Elections Clause refers to regulations affecting the time, place, and manner of holding congressional elections, the Clause has been read expansively. For example, in Buckley v. Valeo, 424 U.S. 1, 14 n.16 (1976), the Supreme Court cited the Elections Clause as the basis for Congress' authority to enact the Federal Election Campaign Act, even though FECA relates to the manner of conducting campaigns for federal office as opposed to the manner of holding elections for federal office.

It is also now beyond dispute that Congress has a similar broad power to legislate in regard to presidential elections, despite the lack of a textual grant of such authority. In Burroughs v. United States, 290 U.S. 534 (1933), the Court sustained Congress's power to adopt the Corrupt Practices Act to regulate contributions and expenditures intended to influence the selection of presidential electors, notwithstanding that the power and manner of appointing presidential electors is entrusted to the states by Article 2, Section 1 and the Twelfth Amendment to the U.S. Constitution. In rejecting the claim that this Act exceeded Congress' powers, the Court ruled that Congress has a broad inherent power to safeguard the legitimacy of federal elections, concluding that such a power as "vital" to our Nations's "self-protection."

As H.R. 906 details, there is currently a great deal of disparity among the states regarding when criminal offenders can vote. Fourteen States disenfranchise convicted offenders permanently, while 32 States disenfranchise felons on parole and 29 States disenfranchise felons on probation. As a result, criminal offenders' rights to vote in federal elections can vary tremendously according to the state in which they reside. H.R. 906 embodies the policy judgment that such disparities in citizens' fundamental rights based on the happenstance of geography are unwarranted, and threaten the integrity and legitimacy of federal government. This judgment is eminently reasonable, particularly given the disproportionate impact criminal disenfranchisement provisions have on minorities, and the Elections Clause gives Congress the authority to require states to adhere to its policy judgments regarding the conduct of federal elections.

Opponents of H.R. 906 have argued that notwithstanding Congress' broad power to regulate federal elections, Congress lacks the power to directly set qualifications of voters for federal elections by virtue of the Qualifications Clauses of Article I and the Seventeenth Amendment. These provide that the "Qualifications" of voters in Senate and House elections must be the same as the qualifications for voters in elections to the most populous branch of the state legislatures.

I believe this argument against the Elections Clause as a basis for Congress' authority to enact H.R. 906 fails, because it does not accord with Supreme Court precedent regarding the scope of the Qualifications Clauses. As the Supreme Court's decision in Tashjian v. Republican Party, 479 U.S. 208 (1986), makes clear, the Qualifications Clause of Article I, which the Seventeenth Amendment adopted verbatim, was not intended to limit congressional power. Instead, it was adopted rather to address the danger that a uniform rule for voting in federal elections, adopted in the Constitution itself or by Congress, would leave many citizens eligible to vote in state elections but not in congressional elections. The Framers feared that such a situation would lead to popular discontent and undermine support for the national government.

Thus, under Tashjian, all the Qualifications Clauses do is prevent either Congress or the states from imposing a regulation that excludes persons qualified to vote in elections for the most populous branch of the state legislature from participating in congressional elections. But Congress' broad power to regulate federal elections remains otherwise unconstrained. As H.R. 906 expands rather than contracts the group of qualified voters in federal elections, it will not lead to the type of problem the Framers intended the Qualifications Clauses to address. Thus, it would appear that no Qualifications Clause issue is present here, and that Congress has power to enfranchise non-incarcerated criminal offenders pursuant to the Elections Clause.

This conclusion is reinforced by the Court' decision in Mitchell. While the Justices in the majority disagreed about the basis of Congress' power to require that 18 year olds be allowed to vote in federal elections, none believed that the Qualifications Clauses limited Congress' power to do so. The Court's reiteration of Congress' power to set qualifications for federal elections in Kusper also undercuts the claim that the Qualifications Clauses prevent Congress from being able to enact legislation enfranchising non-incarcerated offenders for federal elections.

II. Congress' Enforcement Powers under the Fourteenth and Fifteenth Amendments

Congress's enforcement powers under the Fourteenth and Fifteenth Amendments provide an additional basis for congressional authority to enact H.R. 906. The right to vote, and the right to do so free of racial discrimination, are fundamental rights protected by the Fourteenth and Fifteenth Amendments, which Congress has explicit power to enforce. After the Civil War and enactment of the Fifteenth Amendment, numerous southern states adopted criminal disenfranchisement provisions, along with literacy tests and poll taxes, to exclude newly-enfranchised Black voters. And as H.R. 906 finds, criminal disenfranchisement provisions today continue to have a substantially greater impact on minorities, particularly African-American men. This disparate effect is particularly dramatic in states with laws that permanently disenfranchise criminal offenders. In some states, it is estimated that 30 percent of Black men are currently disenfranchised.

Both racially discriminatory intent and impact are therefore present in regard to criminal disenfranchisement provisions. Laws that are enacted out of racially discriminatory intent and have a discriminatory impact violate the Fourteenth Amendment generally, and violate the Fifteenth Amendment when they restrict the right to vote. See, e.g., Washington v. Davis, 426 U.S. 229, 239 (1976); City of Mobile v. Bolden, 446 U.S. 55, 62 (1980). And Congress plainly has the power under its enforcement powers to prohibit measures that violate the Fourteenth and Fifteenth Amendments. Nor does it matter, in regard to Congress' authority to enact H.R. 906 pursuant to its enforcement power, that some felon disenfranchisement provisions were not adopted out of an invidious intent to discriminate. Congress has the power to adopt remedial legislation pursuant to its enforcement power even if in the process it prohibits some conduct which is not unconstitutional. See City of Boerne v. Flores, 117 S. Ct. 2157, 2163 (1997). For example, the Court has reaffirmed Congress' power to ban literacy tests, even though literacy tests could be adopted out of a legitimate desire to ensure an informed electorate and do not in themselves violate the Constitution. See Lopez v. Monterey County, 119 S. Ct. 693, 703 (1999).

Instead, all that is required for an exercise of congressional enforcement power to be legitimate is that Congress have reason to believe that "many of the laws affected by the congressional enactment have a significant likelihood of being unconstitutional." City of Boerne, 117 S. Ct at 2170. The historical and contemporary record gives Congress ample reason to conclude that such a likelihood may exist in regard to many criminal disenfranchisement provisions.

The Court's recent decision in City of Boerne v. Flores does not preclude Congress's authority to enact H.R. 906 under its Fourteenth and Fifteenth Amendment enforcement powers. In Boerne, the Court concluded that the Religious Freedom Restoration Act, or RFRA, exceeded Congress' enforcement powers because in RFRA Congress did not merely prohibit restrictions on the right to exercise one's religion freely but expanded the scope of that right. Some opponents of H.R. 906 might argue, analogously, that H.R. 906 exceeds Congress' enforcement powers because the Supreme Court has held that felons do not have the same fundamental right to vote as other citizens. See Richardson v. Ramirez, 418 U.S. 24 (1974). But the Court has also held that felon disenfranchisement statutes are subject to the highest level of scrutiny insofar as they reflect discrimination on another ground, such as race. See Hunter v. Underwood, 471 U.S. 222, 233 (1985).

Moreover, H.R. 906 and RFRA are significantly different measures. To begin with, H.R. 906 lacks the expansive scope that the Court found to undercut RFRA's remedial character. Rather than applying to almost all areas of state regulation, H.R. 906 is carefully targeted to a specific area -- regulation of federal elections -- where Congress' interests are paramount and congressional preemption frequently occurs. In addition, H.R. 906 is designed to take into account the states' penological interests, and only applies to non-incarcerated offenders. These are the offenders that the states themselves have concluded can and should be integrated into the community. Most importantly, H.R. 906 differs from RFRA in that it targets a type of voting qualification that historically has been used to deny voting rights on racial grounds, and that continues to have a disproportionate effect on minorities. In Boerne, the Court repeatedly emphasized that Congress has broad remedial power to act against voting practices and requirements of this type.

Even aside from this concern with preventing racial discrimination, Congress could act to enfranchise non-incarcerated offenders in federal elections based simply on its determination that laws disenfranchising non-incarcerated criminal offenders are arbitrary and irrational, and thus violate the Fourteenth Amendment's prohibition on arbitrary and irrational classifications. H. R. 906's findings -- that states vary tremendously in their approach to felon disenfranchisement, that imposition of disenfranchisement is often not connected to the seriousness or nature of the offense, that in many states there is no effective means by which to regain the right to vote, and that federal and state offenders have differing abilities to take advantage of whatever means of regaining the vote are available -- support a congressional determination that criminal disenfranchisement laws operate in an arbitrary and irrational fashion. It is also difficult to discern the purpose behind disenfranchisement provisions as they apply to non-incarcerated offenders, who the state does not believe need to be keep segregated from the community, particularly offenders convicted of crimes not related to elections.

In sum, I believe that both the Elections Clause, combined with Congress' broad power over federal elections, and Congress' enforcement powers under the Fourteenth and Fifteenth Amendments offer two separate bases for congressional authority to enact H.R. 906. Finally, although I have limited my remarks to an assessment of H.R. 906's constitutionality, I also strongly agree with its policy determination that non-incarcerated criminal offenders who are integrated into our communities physically, socially and economically should also be integrated into our communities politically.

Thank you.