LEGAL ANALYSIS OF CONGRESS’ CONSTITUTIONAL AUTHORITY TO RESTORE VOTING RIGHTS TO PEOPLE WITH CRIMINAL HISTORIES
This memo addresses the constitutionality of the Democracy Restoration Act (DRA), which would permit all individuals who are not incarcerated to vote in federal elections, regardless of whether they have a criminal record that makes them ineligible to vote in state elections. The Brennan Center for Justice at NYU School of Law believes that such legislation is constitutional and that there are two sources for Congress’ authority to enact the DRA: (1) the Election Clause of Article I, section 4; and (2) Congress’ enforcement powers under the Fourteenth and Fifteenth Amendments.
I. The Election Clause and Congress’ Inherent Authority to Regulate Federal Elections
Congress has very broad powers to regulate federal elections under the Election Clause of Article I, section 4. This 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 the Places of chusing Senators.”
Although the text of the Election Clause references regulating the time, place and manner of congressional elections, it has consistently been read more expansively to include Congress’ authority to regulate presidential elections, as well as its authority to regulate other voting requirements for federal elections, including voter eligibility. See, e.g., Kusper v. Pontikes, 414 U.S. 51, 57 n.11 (1973); Oregon v. Mitchell, 400 U.S. 112, 121, 124 (1970).
Mitchell upheld Congress’ ability to lower the voting age in federal elections. In doing so, the Court clearly endorsed Congress’ “ultimate supervisory power” over federal elections, including setting the qualification for voters. 400 U.S. at 124. Although a majority of Justices did not agree on the basis for Congress’ power to set voter qualifications – some based the power on the Election Clause, others on Congress’ enforcement powers – the Court itself has not viewed this disagreement as undercutting Mitchell's holding. See Kusper, 414 U.S. at 57.
Even in those few instances where federal legislation would conflict with a state constitution, the legislation could nevertheless be implemented pursuant to the Supremacy Clause in Article VI of the Constitution, which provides:
“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” U.S. Const. art. VI, cl. 2.
Opponents of the DRA may argue that notwithstanding its broad power to regulate federal elections, Congress lacks the power to directly set qualifications for voters in federal elections by virtue of the Qualifications Clauses of Article I and the Seventeenth Amendment. These provide that the qualifications of voters in congressional elections must be the same as the qualifications for voters in elections to the most populous branch of the state legislature.
However, this argument 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, or to require that qualifications for voting in federal elections be the same as those for voting in state elections. Instead, as the Court explained, “[f]ar from being a device to limit the federal suffrage, the Qualifications Clause was intended by the Framers to prevent the mischief which would arise if state voters found themselves disqualified from participation in federal elections.” Id. at 229. The Court concluded that the fundamental purpose of the Qualifications Clauses is satisfied if all those qualified to vote in state elections are also qualified to vote in federal elections. Id. Because the proposed recommendation expands rather than limits the group of qualified voters in federal elections, it does not run afoul of the Qualifications Clauses.
II. Congress’ Enforcement Powers under the Fourteenth and Fifteenth Amendments
Congress’ enforcement powers under the Fourteenth and Fifteenth Amendments provide an additional basis for congressional authority to permit all individuals who are not incarcerated to participate in federal elections, even though some may be disenfranchised under state law as the result of criminal convictions. Section 5 of the Fourteenth Amendment and Section 2 of the Fifteenth Amendment both grant Congress the power to enforce the Amendments “by appropriate legislation.” The Supreme Court has described this enforcement power as “a broad power indeed” – one that gives Congress a “wide berth” to devise appropriate remedial and preventative measures for unconstitutional actions. Tennessee v. Lane, 541 U.S. 509, 518, 520 (2004).
The right to vote, and the right to do so free of racial discrimination, are fundamental rights. Laws that are enacted out of racially discriminatory intent violate the Fourteenth Amendment generally, and violate the Fifteenth Amendment when they restrict voting. It is long settled by the Supreme Court that Congress’ enforcement powers are a grant of broad authority to eradicate any racial discrimination in voting.
The Supreme Court has established an analysis for determining whether legislation falls within Congress’ enforcement powers under the Fourteenth Amendment: the legislation must exhibit “a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” Boerne v. Flores, 521 U.S. 507, 520 (1997).
The first part of this analysis requires identifying the constitutional right that Congress seeks to enforce. Lane, 541 U.S. at 520. In order for Congress to properly utilize its enforcement powers, its legislation must be clearly remedial in nature – that is, aimed at remedying past constitutional violations – rather than expanding constitutional rights. The second part of the test determines whether the legislation is “an appropriate response” to a “history and pattern of unequal treatment.” Id.
Rather than serving as a rigid doctrinal test, the Court’s analysis has functioned as a sliding scale – making clear that Congress’ enforcement authority is at its most expansive, and that “congruence and proportionality” are most likely to be found, when protecting against discrimination based on suspect classifications, see e.g., Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 736 (2003), or when protecting fundamental rights, see Lane, 541 U.S. at 523. Because the DRA protects the right to vote, arguably the most fundamental constitutional right, and attempts to remedy past and present racial discrimination, it meets the Boerne-Lane standard.
When acting pursuant to the Fifteenth Amendment, Congress’s enforcement powers are at their pinnacle because such legislation involves both the fundamental right to vote and the suspect category of race. Indeed, the Court has “compared Congress’ Fifteenth Amendment enforcement power to its broad authority under the Necessary and Proper Clause.” Lopez v. Monterey County, 525 U.S. 266, 294 (U.S. 1999) (citing City of Rome v. United States, 446 U.S. 156, 175 (1980); South Carolina v. Katzenbach, 383 U.S. 301, 326 (1966)). Legislation enforcing the Fifteenth Amendment is afforded deferential review from the courts because it necessarily protects against racial discrimination and deprivations of the fundamental right to vote, see Johnson v. California, 543 U.S. 499, 505 (2005); Harper v. Va. Bd. of Elections, 383 U.S. 663, 670 (1966).
While the Supreme Court has found that Congress exceeded its Fourteenth Amendment powers when passing legislation requiring states to remedy various forms of discrimination, the concerns animating the Court are not present in legislation designed to combat race discrimination in voting. For example, in Boerne, the Court found that Congress exceeded its enforcement powers in passing the Religious Freedom Restoration Act (RFRA), which prohibited both federal and state governments from “substantially burdening” a person’s exercise of religion, concluding that the law “attempted a substantive change in constitutional protections.” 521 U.S. at 532. The Court rejected an attempt by Congress to “say what the law is,” Boerne, 521 U.S. at 537 (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)), the clear province of the courts.
Other cases have similarly been skeptical of Congressional action to combat discrimination unrelated to racial classifications or fundamental rights. See, e.g. Board of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, 373 (2001) (concluding that Congress could not enforce the Americans with Disabilities Act against state governments, and explaining that the “ADA’s constitutional shortcomings are apparent when the Act is compared to Congress’ efforts in the Voting Rights Act”); Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) (finding that Congress did not have the power to enforce the Age Discrimination in Employment Act against state governments and pointing to protection of voting rights as a valid use of congressional enforcement powers).
In enacting the DRA, Congress should create a record of evidence that criminal disenfranchisement provisions have resulted in a “history and pattern of unequal treatment.” Lane, 541 U.S. at 520. It can do so by demonstrating that racial discrimination was a substantial or motivating factor in the adoption of specific felony disenfranchisement laws, and that racially neutral laws have been implemented or enforced in a discriminatory manner. See Hibbs, 538 U.S. at 731–32 (finding evidence that state medical leave laws discriminated on the basis of gender both intentionally and in the way in which they were applied ). The findings section of the current legislation provides a strong foundation for building this record.
Opponents of the DRA may argue that Section 2 of the Fourteenth Amendment limits Congress’ enforcement authority. That section provides, “when the right to vote at any election for the choice of electors . . . is denied to any of the male inhabitants of such State . . . or in any way abridged, except for participation in rebellion, or other crime . . . .” (emphasis added). Relying on this language, the Supreme Court rejected a nonracial equal protection challenge to California’s felony disenfranchisement law in Richardson v. Ramirez, 418 U.S. 24 (1974).
As long as the DRA is securely framed as legislation aimed at remedying past and current racial discrimination in the voting system, reliance on Richardson is misguided. In a subsequent decision, the Court clarified that Section 2 of the Fourteenth Amendment does not limit the Equal Protection Clause’s prohibition on felony disenfranchisement laws that deny voting rights on account of race. Hunter v. Underwood, 471 U.S. 222, 233(1985) (“[W]e are confident that § 2 was not designed to permit the purposeful racial discrimination attending the enactment and operation of [felony disenfranchisement laws] which otherwise violate § 1 of the Fourteenth Amendment.”).
Even if Section 2 were found to somehow limit Congress’ power under the Fourteenth Amendment to reach criminal disenfranchisement laws with racially discriminatory results, the Fifteenth Amendment’s subsequent broad ban on race discrimination in voting clearly carries no such exception. The language and legislative history of the Fifteenth Amendment reveal that it does not replicate or incorporate Section 2, but replaces it with a clean ban on any disenfranchisement based on race. The Fifteenth Amendment takes a diametrically different approach from the Fourteenth Amendment. A few years after the Fifteenth Amendment was ratified, the Supreme Court explained that the Amendment “invested citizens . . . with a new constitutional right which is within the protecting power of Congress. The right is exemption from discrimination of the elective franchise on account of race, color, or previous condition of servitude.” United States v. Reese, 92 U.S. 214, 218 (1875).
We believe that both the Elections Clause, combined with Congress’ broad powers over federal elections, and Congress’ enforcement powers under the Fourteenth and Fifteenth Amendments, offer two separate bases for congressional authority to pass the Democracy Restoration Act.
 Indeed, just this year the Supreme Court, in an 8 to 1 decision, declined to rule that the pre-clearance provision of the Voting Rights Act was an unconstitutional exercise of congressional authority under the Fifteenth Amendment. See NAMUDNO v. Holder, 557 U. S. ____ (2009).
 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 African American voters. Criminal disenfranchisement provisions today continue to have a substantially greater impact on minorities, especially 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. For more information see Erika Wood, Restoring the Right to Vote (2009), available at http://www.brennancenter.org/content/resource/restoring_the_right_to_vote/