Introduction
Good morning, Mr. Chairman. My name is Roger Clegg, and I appreciate the opportunity to testify before this subcommittee today on H.R. 906. I am vice president and general counsel of the Center for Equal Opportunity, a nonpartisan, Section 501(c)(3) research and educational organization, where I write and speak on civil rights issues. I graduated from Yale Law School in 1981, clerked on the U.S. Court of Appeals for the District of Columbia Circuit, and then served at the U.S. Department of Justice from July 1982 to January 1993, including four years as a deputy in the Civil Rights Division.

The heart of H.R. 906 is section 3, which provides: "The right of an individual who is a citizen of the United States to vote in any election for Federal office shall not be denied or abridged because that individual has been convicted of a criminal offense unless such individual is serving a felony sentence in a correctional institution or facility at the time of the election."

Thus, with the exception of those currently serving time in prison for a felony conviction, H.R. 906 would require that all persons convicted of crimes-those serving time for misdemeanors, or in "any residential community treatment center" for a felony; those on probation or parole for felonies or misdemeanors; and those who have completed their sentences for felonies or misdemeanors-must be allowed to vote in federal elections. And, since it is logistically difficult for states to have one voting list and set of ballots and voting booths for federal elections and another for state and local elections, it is likely that this bill would change who is allowed to vote in state and local elections, too. This is a dramatic change, because currently the vast majority of states do not allow at least some of these people to vote.

H.R. 906 makes no claim that criminals are disenfranchised because of their race, nor could it plausibly do so. Without an assertion of its authority under the 14th or 15th Amendment, Congress may not dictate to states the requirements of electors in state elections, and wisely H.R. 906 does not do so. H.R. 906 does propose to cover federal elections, however.

Congress should not pass this bill unless it is satisfied that: (1) the bill is sound as a matter of policy; and (2) Congress has constitutional authority to do so. H.R. 906 fails both tests.

H.R. 906 Is Bad Policy

Voting is a right, but it is also a privilege. Not everyone in the United States may vote. As a general matter, only those who have reached a certain age, and who are American citizens, are allowed to vote. We do not want people voting who are not trustworthy and loyal to our republic. While maturity and trustworthiness do not always come with age, and while loyalty does not always coincide with citizenship, there is generally thought to be a correlation.

It is not unreasonable to suppose that those who have committed serious crimes may be presumed to lack this trustworthiness and loyalty. Criminals are, in the aggregate, less likely to be trustworthy, good citizens. In addition, for those actually incarcerated, even if only for misdemeanors, there may be logistical problems with their voting.

It may be objected that not all crimes are equal, and that even among felons, it cannot be presumed that all are equally to be mistrusted with the ballot. But even if this is true, it does not follow that therefore all should be allowed to vote. Rather, it would be more prudent to distinguish among various crimes: murder, rape, treason, espionage, and perjury, on the one hand, versus, say, nonviolent drug crimes, on the other. But this will be a difficult line for Congress to draw, since every state has its own array of offenses. Further, these offenses are constantly changing, and so Congress would have to be constantly updating any statute it wrote that drew distinctions among various crimes. Accordingly, it is wiser for Congress to leave the line-drawing to the states, where it has always been. This also allows the states to review re-enfranchisement on a case-by-case basis, through an application process.

The fact that criminals are "overrepresented" in some groups and "underrepresented" in others is no reason for the federal government to intervene, absent some evidence of discriminatory intent by the states. If a lot of young people, black people, or male people are committing crimes, then our efforts should be focused on solving that problem. It is bizarre instead to increase their political power.

H.R. 906 sends a very bad message: that Congress does not consider criminal behavior such a serious matter that the right to vote should be denied because of it.

Much has been made of the high percentage of criminals-and, thus, disenfranchised people-in some communities. But this is an argument against re-enfranchisement, because there accordingly exists a voting bloc that could create real problems by skewing election results.

So it makes no sense for Congress to pass his bill. And Congress lacks this authority anyway.

Limits on Congressional Authority

The Supreme Court recently reaffirmed in United States v. Lopez, 115 S. Ct. 1624, 1626 (1995), what is obvious from the text of the Constitution: "The Constitution creates a Federal Government of enumerated powers." Accordingly, Congress must point to some font of authority in the Constitution for passing H.R. 906.

There are three theories under which Congress might assert authority for passing this bill. If Congress has authority to pass this bill under Article I, Section 4, it can simply assert its belief that all criminals (excepting felons currently in prison) are entitled to vote, and not rely on any claim that it is addressing racial discrimination. Congress also could assert authority to pass this bill under the enforcement clauses of the 14th and 15th Amendments-either because of the disparate impact that disenfranchisement of these criminals and former criminals has on some minority groups, or because this disenfranchisement is in fact racially motivated.

Congress Lacks Authority under Article I, Section 4

With respect to the first justification, the hurdle is Article I, Section 2, of the Constitution, which says that electors for the House of Representatives-and, by extension, for all federal elections-"shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature." Thus, it gives authority for determining elector qualifications to the states.

It might be asserted that Article I, Section 4, gives Congress authority to trump the states, insofar as it allows Congress to "make or alter such [state] Regulations" regarding "[t]he Times, Places and Manner of holding Elections for Senators and Representatives." As a textual matter, this is unpersuasive, since Article I, Section 4, is talking about "holding Elections"-not about who votes, which is the express focus of Section 2.

In The Federalist No. 60, Alexander Hamilton said of Article I, Section 4, that the national government's "authority would be expressly restricted to the regulation of the times, the places, and the manner of elections. The qualifications of the persons who may choose or may be chosen … are defined and fixed in the constitution; and are unalterable by any legislature." (Emphasis in original.) In The Federalist No. 52, James Madison had written of Article I, Section 2: "To have left it [that is, "[t]he definition of the right of suffrage"] open for the occasional regulation of Congress, would have been improper …." Hamilton and Madison believed that generally the state constitutions would determine who voted; Congress, in any event, would not.

The Supreme Court's decision in Oregon v. Mitchell, 400 U.S. 112 (1970), should be discussed here. Five justices in a highly fractured series of opinions voted to uphold legislation that required 18-year-olds to be allowed to vote in federal elections. Justice Black wrote one opinion, Justice Douglas another, and Justices Brennan, White, and Marshall wrote a third. None of those writing one opinion joined any of the others, and four Justices-Harlan, Stewart, Blackmun, and Chief Justice Burger-dissented. The issue was superseded a little over six months later with the ratification of the 26th Amendment.

It is true that in this case a majority of the justices did vote to uphold a statute that dictated who could vote in federal elections even though it was not aimed at racial discrimination. But only one of the five justices-Justice Black-relied on Article I, Section 4. The other four relied on interpretations of Congress's enforcement authority under the 14th and 15th Amendments that are inconsistent with the Court's subsequent rulings in Richardson v. Ramirez, 418 U.S. 24 (1974), combined with City of Boerne v. Flores, 117 S. Ct. 2157 (1997). (As discussed below, Ramirez said that it was not a violation of the Equal Protection Clause to disenfranchise felons, and Boerne said the Congress could not assert its enforcement authority to prohibit state actions unrelated to 14th Amendment violations.) Accordingly, reliance on Article I, Section 4, lacks textual support and has been endorsed by only a 1970 opinion joined only by Justice Black; and Orgeon v. Mitchell provides little support today for H.R. 906.

Congress Lacks Authority under the 14th and 15th Amendments

If Article I, Section 4, does not give Congress the authority to trump the states' authority for determining voting qualifications in Article I, Section 2, then we are left with the claim that Congress may pass H.R. 906 under its authority to enforce the 14th and 15th Amendments.

It is quite clear that laws that have a mere disparate impact-but no discriminatory intent-do not violate the 14th and 15th Amendments. The Supreme Court has so held repeatedly with respect to the 14th Amendment. A plurality has so held with respect to the 15th Amendment-in City of Mobile v. Bolden, 446 U.S. 55 (1980)-and it is hard to see how the standard could be different for one Reconstruction Era amendment than for another. When the Supreme Court considered a claim that a state law denying the franchise to those convicted of crimes "involving moral turpitude" was unconstitutional race discrimination, it said: "`[O]fficial action will not be held unconstitutional solely because it results in a 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. 222, 227-28 (1985) (quoting Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-65 (1977), and citing Washington v. Davis, 426 U.S. 229, 239 (1976)). Accordingly, Congress cannot credibly assert its enforcement authority if it can point to nothing but disparate impact.

It is true that the Supreme Court has upheld congressional bans on certain voting practices and procedures-like literacy tests-that are not themselves discriminatory on their face but have disproportionately excluded racial minorities from voting. City of Rome v. United States, 446 U.S. 156 (1980); Oregon v. Mitchell, 400 U.S. 112 (1970); see also City of Port Arthur v. United States, 459 U.S. 159, 168 (1982); City of Pleasant Grove v. United States, 479 U.S. 462, 471-72 (1987). But, as the Court stressed in its Boerne opinion, these cases involved bans aimed at practices that historically have been rooted in intentional discrimination.

H.R. 906 does not assert that a desire to discriminate on the basis of race is the reason for the disenfranchisement of criminals. Nor can this assertion by plausibly made.

To begin with, Section 2 of the 14th Amendment itself contemplates this disenfranchisement, since it acknowledges that "the right to vote" may be "abridged … for participation in rebellion, or other crime …." Surely this is some evidence that the reasons for disenfranchising criminals need not be racially discriminatory. The Supreme Court upheld a felony disenfranchisement statute from a nonracial Equal Protection Clause challenge in Richardson v. Ramirez, 418 U.S. 24 (1974), relying on Section 2.

I discussed earlier the legitimate reasons a state may have for disenfranchising criminals. The overwhelming number of states to have passed such disenfranchisement laws also indicates that something other than racial discrimination is indeed the motive.

• Only four New England states-Maine, Massachusetts, New Hampshire, and Vermont-allow all felons to vote.
• Twenty-nine states prohibit felons who are on probation from voting.
• Thirty-two states prohibit felons who are on parole from voting.
• The states that prohibit all felons from voting-whether in prison, on probation, on parole, or having fully served their sentences-are: Alabama, Arizona (for a second felony), Delaware, Florida, Iowa, Kentucky, Maryland (for a second felony), Mississippi, Nevada, New Mexico, Virginia, and Wyoming. This is hardly the old Confederacy: only four of the twelve states fall in that category.
• Conversely, in the old Confederacy, Texas, Arkansas, Louisiana, North Carolina, South Carolina, and Georgia all allow felons to vote, so long as they are no longer in prison, on parole, or on probation, and, in fact, Louisiana allows felons on probation or parole to vote. Tennessee allows some felons to vote, too.

It is true that, between 1890 and 1910, many Southern states (Alabama, Louisiana, Mississippi, South Carolina, and Virginia) tailored their criminal disenfranchisement laws to increase their effect on black citizens. But the judiciary has been willing to strike these laws down-for instance, the Alabama law in Hunter v. Underwood, 471 U.S. 222 (1985). The meat-ax approach of H.R. 906 is as unnecessary as it is unwise.

In Boerne, in discussing the scope of Congress's enforcement powers for the Reconstruction Era amendments, the Court declared, "There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." The Court concluded that Congress could not bar state actions with a discriminatory effect on the free exercise of religion when the underlying constitutional right was to be free from state actions with discriminatory intent. Likewise, there is no "congruence and proportionality" between guaranteeing people the right to vote irrespective of race and a requirement that criminals be allowed to vote.

Conclusion

H.R. 906 is misguided as a matter of policy and, in any event, Congress lacks authority to pass it. It should not be enacted.