Harvey v. Brewer

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DEBRA L. HARVEY and CATHERINE 

M. BEDDARD,

Plaintiffs-Appellants,

v. No. 08-17253

JANICE K. BREWER, Governor; KEN  D.C. No.

CV-08-17-TUC-

BENNETT, Secretary of State of

Arizona; and F. ANN RODRIGUEZ, FRZ

Pima County Recorder, in their

official capacities,

Defendants-Appellees.



ARMANDO CORONADO; JOSEPH 

RUBIO; MICHAEL GARZA; MICHELE

CONVIE; and RAYMOND LEWIS,

Plaintiffs-Appellants,

v. No. 08-17567

D.C. No.

JANICE K. BREWER, Governor; KEN

BENNETT, Secretary of State of  CV-07-1089-PHX-

Arizona; F. ANN RODRIGUEZ, Pima SMM

County Recorder; and HELEN OPINION

PURCELL, Maricopa County

Recorder, in their official

capacities,

Defendants-Appellees.



Appeals from the United States District Court

for the District of Arizona

Frank R. Zapata, District Judge, Presiding (No. 08-17253)

Stephen M. McNamee, District Judge, Presiding

(No. 08-17567)

7655

7656 HARVEY v. BREWER

Argued and Submitted

October 19, 2009—Tempe, Arizona

Filed May 27, 2010

Before: Sandra Day O’Connor, Associate Justice,*

Alex Kozinski, Chief Judge, and Sandra S. Ikuta,

Circuit Judge.

Opinion by Associate Justice O’Connor

*The Honorable Sandra Day O’Connor, Associate Justice of the United

States Supreme Court (Ret.), sitting by designation pursuant to 28 U.S.C.

§ 294(a).

HARVEY v. BREWER 7659

COUNSEL

John R. Cosgrove, Menlo Park, California, for plaintiffs-

appellants Debra L. Harvey and Catherine M. Beddard.

Daniel Pochoda, American Civil Liberties Union of Arizona,

Phoenix, Arizona, for plaintiffs-appellants Armando Coro-

nado, Joseph Rubio, Michael Garza, Michele Convie, and

Raymond Lewis.

Laughlin McDonald, Neil Bradley, and Nancy G. Abudu,

American Civil Liberties Union Voting Rights Project,

Atlanta, Georgia, for plaintiffs-appellants Armando Coro-

nado, Joseph Rubio, Michael Garza, Michele Convie, and

Raymond Lewis.

7660 HARVEY v. BREWER

Terry Goddard, Attorney General, Mary O’Grady, Solicitor

General, and Barbara A. Bailey, Assistant Attorney General,

Phoenix, Arizona, for defendants-appellees Janice Brewer and

Ken Bennett.

Barbara LaWall, Pima County Attorney, Tucson, Arizona, for

defendant-appellee F. Ann Rodriguez.

Erika Wood and Myrna Pérez, Brennan Center for Justice,

New York, New York, on behalf of amicus curiae the Bren-

nan Center for Justice.

Lawrence S. Lustberg, Jennifer B. Condon, Gibbons, P.C.,

Newark, New Jersey, on behalf of amicus curiae the Brennan

Center for Justice.

OPINION

O’CONNOR, Associate Justice (Ret.):

Arizona’s Constitution provides: “No person who is adjudi-

cated an incapacitated person shall be qualified to vote at any

election, nor shall any person convicted of treason or felony,

be qualified to vote at any election unless restored to civil

rights.” Ariz. Const. art. VII, § 2. Arizona statutes give effect

to this constitutional provision by suspending the voting

rights of any person convicted of a felony, Ariz. Rev. Stat.

§ 13-904(A)(1), and automatically restoring those rights to

any person convicted of only one felony, provided he: “1.

Completes a term of probation or receives an absolute dis-

charge from imprisonment,” and “2. Pays any fine or restitu-

tion imposed.” Ariz. Rev. Stat. § 13-912(A).

Plaintiffs brought suits challenging Arizona’s disenfran-

chisement scheme. Their first argument was that disenfran-

chisement for felonies not recognized as such at common law

HARVEY v. BREWER 7661

violates the Equal Protection Clause of the Fourteenth

Amendment. While plaintiffs acknowledged that Section 2 of

the Fourteenth Amendment insulates felon-disenfranchise-

ment schemes from equal protection challenges to some

extent, see Richardson v. Ramirez, 418 U.S. 24 (1974), they

argued that Section 2 only permits disenfranchisement for

common-law felonies. In their view, disenfranchisement for

statutory felonies not recognized at common law has no affir-

mative sanction in Section 2 and violates the Equal Protection

Clause.

Three of the plaintiffs also argued that conditioning the res-

toration of the right to vote upon the payment of their criminal

fines and restitution violates various provisions of the United

States and Arizona Constitutions. Particularly, they alleged

that this repayment condition violates the Equal Protection

Clause of the Fourteenth Amendment, the Twenty-Fourth

Amendment’s bar against poll taxes, the Privileges or Immu-

nities Clauses in both the federal and Arizona Constitutions,

and the Arizona Constitution’s provision mandating free and

equal elections. Defendants’ motions to dismiss were granted,

and plaintiffs now raise these same arguments on appeal.

We consider each of these arguments and AFFIRM.

Facts

This is a consolidated appeal arising from two separate

suits: one on behalf of Debra L. Harvey and Catherine M.

Beddard (“Harvey plaintiffs”), and another on behalf of

Armando Coronado, Joseph Rubio, Michael Garza, Michele

Convie, and Raymond Lewis (“Coronado plaintiffs”).

The Harvey plaintiffs each have multiple felony convic-

tions for “drug or other offenses which were not felonies at

common law.” Amended Complaint at 15. While they claim

they would otherwise be eligible to vote, Arizona has denied

them that right because of their felony convictions. They filed

7662 HARVEY v. BREWER

a 42 U.S.C. § 1983 suit against the Governor and Secretary of

State of Arizona, as well as the Pima County Recorder, chal-

lenging Arizona’s disenfranchisement scheme “for denial of

the vote to Plaintiffs and the consequent failure to accord

them the equal protection of the laws in violation of the Four-

teenth Amendment.” Amended Complaint at 1. Defendants

moved to dismiss the suit for failure to state a claim. They

argued that Section 2 of the Fourteenth Amendment affirma-

tively permits the disenfranchisement of felons, that the reach

of Section 2 is not limited to felonies at common law (as

plaintiffs suggest), and that the plaintiffs’ equal protection

claims therefore fail. The District Court, adopting the Report

and Recommendation of the Magistrate Judge, granted defen-

dants’ motion and dismissed the suit.

The Coronado plaintiffs also brought a § 1983 suit against

the same defendants (plus the Maricopa County Recorder),

alleging that they too were denied the right to vote because of

convictions for offenses that, while classified as felonies

under state law, did not constitute felonies at common law.

Coronado and Garza were each convicted of one felony drug

offense; Rubio was convicted of one felony count of

attempted aggravated domestic violence; Convie and Lewis

were convicted of multiple felony drug offenses. They raised

the same equal protection argument as the Harvey plaintiffs

with regard to Section 2.

The Coronado plaintiffs who had only one felony convic-

tion (Coronado, Garza, and Rubio) also challenged Arizona’s

scheme for restoring voting rights to felons. The crux of their

argument was that, because they had served the entirety of

their prison terms for a lone felony conviction, the only thing

keeping them from having their voting rights automatically

reinstated was their failure to pay the criminal fines and resti-

tution orders included in their sentences. See Ariz. Rev. Stat.

§ 13-912(A)(2). This, they argued, discriminates on the basis

of wealth, conditions the right to vote on the payment of a fee,

and violates various federal and state constitutional provi-

HARVEY v. BREWER 7663

sions. Their complaint did not allege that any of them were

incapable of paying the remainder of the money owed under

their sentences. The defendants moved to dismiss the suit for

failure to state a claim, and the district court granted the

motion.

Plaintiffs timely filed notices of appeal, and defendants’

motion to consolidate these appeals was granted.

Discussion

We first address the argument, common to all plaintiffs,

that the Equal Protection Clause only permits felon disenfran-

chisement when the felonies at issue were felonies at common

law.

A. Equal Protection and the Common-Law Felony Theory

of Section 2

[1] Section 1 of the Fourteenth Amendment provides: “No

State shall make or enforce any law which shall . . . deny to

any person within its jurisdiction the equal protection of the

laws.” U.S. Const. amend. XIV, § 1. Section 2 further pro-

vides, in full:

Representatives shall be apportioned among the sev-

eral States according to their respective numbers,

counting the whole number of persons in each State,

excluding Indians not taxed. But when the right to

vote at any election for the choice of electors for

President and Vice President of the United States,

Representatives in Congress, the Executive and Judi-

cial officers of a State, or the members of the Legis-

lature thereof, is denied to any of the male

inhabitants of such State, being twenty-one years of

age, and citizens of the United States, or in any way

abridged, except for participation in rebellion, or

other crime, the basis of representation therein shall

7664 HARVEY v. BREWER

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.

U.S. Const. amend. XIV, § 2 (emphasis added).

[2] Section 2 provides an electoral penalty against States

that withhold the franchise from otherwise eligible voters. If

a State disenfranchises some number of otherwise eligible

voters, those disenfranchised persons will count against the

State’s total population for purposes of determining its repre-

sentation in Congress. But Section 2 lifts this penalty when

disenfranchisement is based on (and this is the critical lan-

guage) “participation in rebellion, or other crime.” Plaintiffs

argue that this language should be read as: “participation in

rebellion, or other [common-law felony].” As an initial mat-

ter, it is not obvious how the scope of this Section 2 language

affects a Section 1 equal protection claim; to understand that

issue, we turn to the Supreme Court’s opinion in Richardson

v. Ramirez, 418 U.S. 24 (1974).

1. Richardson

Richardson involved a group of convicted felons who had

served the entirety of their sentences and sought to compel

California election officials to register them as voters. They

had been barred from voting under a California statute which

excluded from the franchise all persons previously convicted

of an “infamous crime.” Id. at 27. The California Supreme

Court sustained their equal protection challenges to the Cali-

fornia law, concluding that the disenfranchisement of con-

victed felons beyond the expiration of their terms of

imprisonment violated the Equal Protection Clause. Ramirez

v. Brown, 507 P.2d 1345, 1357 (Cal. 1973).

In reaching that conclusion, the California Supreme Court

relied primarily upon a then-recent Supreme Court decision

striking down Tennessee’s durational residence requirement

HARVEY v. BREWER 7665

as a condition on the right to vote. Id. at 1351-52 (discussing

Dunn v. Blumstein, 405 U.S. 330 (1972)). In nullifying the

Tennessee law at issue in Dunn, the Supreme Court held that

“[i]t is not sufficient for the State to show that durational resi-

dence requirements further a very substantial state interest.

. . . [I]f there are other, reasonable ways to achieve those goals

with a lesser burden on constitutionally protected activity, a

State may not choose the way of greater interference.” Dunn,

405 U.S. at 343. The California Supreme Court followed

Dunn’s reasoning and concluded that “enforcement of modern

statutes regulating the voting process and penalizing its

misuse—rather than outright disfranchisement of persons con-

victed of crime—is today the method of preventing election

fraud which is the least burdensome on the right of suffrage,”

and therefore outright disenfranchisement was not a “neces-

sary” restriction under Dunn’s rationale. Ramirez, 507 P.2d at

1357.

[3] In Richardson, the Supreme Court reversed this judg-

ment and, in doing so, looked primarily to Section 2 of the

Fourteenth Amendment. The Court reasoned that Section 1’s

Equal Protection Clause could not be read to prohibit the dis-

enfranchisement of felons because Section 2 approves of such

disenfranchisement by removing any electoral penalty for it.

Richardson, 418 U.S. at 54 (“[T]he exclusion of felons from

the vote has an affirmative sanction in § 2 of the Fourteenth

Amendment.”). The Court concluded “that § 1, in dealing

with voting rights as it does, could not have been meant to bar

outright a form of disenfranchisement which was expressly

exempted from the less drastic sanction of reduced representa-

tion which § 2 imposed for other forms of disenfranchise-

ment.” Id. at 55. Today, a litigant bringing an equal protection

challenge to a felon-disenfranchisement scheme must first

face the formidable task of escaping Richardson’s long

shadow. But see Hunter v. Underwood, 471 U.S. 222, 227,

231 (1985) (invalidating provision in Alabama Constitution

authorizing disenfranchisement for persons convicted of

“crimes involving moral turpitude,” including misdemeanors

7666 HARVEY v. BREWER

not punishable by imprisonment, where “discrimination

against blacks, as well as against poor whites, was a motivat-

ing factor for the provision”).

2. Plain meaning and contemporary usage of “other

crime”

Plaintiffs’ proposed route around Richardson is to argue

that the affirmative sanction in Section 2 only extends to the

disenfranchisement of persons convicted of common-law fel-

onies, a category that they do not fit into. Plaintiffs identify

the common-law felonies as those listed by the Supreme

Court in Jerome v. United States, 318 U.S. 101, 108 n.6

(1943): “murder, manslaughter, arson, burglary, robbery,

rape, sodomy, mayhem and larceny.” Plaintiffs further posit,

with no support, that treason “was a common law felony of

a special sort,” Harvey Br. at 51, but that is inaccurate. 1

Wharton’s Criminal Law § 17 (Torcia ed., 2009) (“At com-

mon law, there were three kinds of offenses: treason, felony,

and misdemeanor.”).1 So plaintiffs’ proposed reading of Sec-

tion 2 as meaning “except for participation in rebellion, or

other [common-law felony]” is off to a bad start, because it

appears participation in rebellion itself would qualify not as

a common-law felony, but as treason.

[4] And plaintiffs’ interpretation is certainly not a plain

reading of Section 2’s terms, which permit disenfranchise-

ment “for participation in rebellion, or other crime” without

regard to whether the crime was a felony at all, much less one

recognized at common law. As noted in Richardson, “this lan-

guage was intended by Congress to mean what it says.” 418

U.S. at 43.

1

We could quibble further with this list—as it may be over- or under-

inclusive, see Legal Servs. for Prisoners with Children v. Bowen, 170 Cal.

App. 4th 447, 463-64 (2009)—but defendants do not dispute that plain-

tiffs’ crimes do not qualify as common-law felonies under any definition

of that phrase.

HARVEY v. BREWER 7667

Plaintiffs’ proposed reading also seems to be in direct con-

flict with Richardson, which held that California may “ex-

clude from the franchise convicted felons who have completed

their sentences,” 418 U.S. at 56 (emphasis added), evincing

no concern with whether any particular felony was one recog-

nized at common law. Indeed, at least one of the three ex-

felons in Richardson was convicted of a crime that was

clearly not a felony at common law. See Richardson, 418 U.S.

at 32 n.9 (“felony of heroin possession”). Still, neither this

court nor the Supreme Court has directly addressed this pre-

cise question, so we consider plaintiffs’ reasons for looking

beyond Section 2’s plain language.

Plaintiffs argue that the word “crime” at the time of the

Fourteenth Amendment’s drafting and ratification commonly

meant “felony at common law.” Contra Kentucky v. Denni-

son, 65 U.S. 66, 99 (1860) (“The word ‘crime’ of itself

includes every offence, from the highest to the lowest in the

grade of offences, and includes what are called ‘misdemea-

nors,’ as well as treason and felony.”). In support of this argu-

ment, plaintiffs cite a dictionary definition and William

Blackstone’s Commentaries, which preceded the Fourteenth

Amendment’s ratification by a century. Harvey Br. at 43-44.

Contemporaneousness aside, neither of these sources supports

plaintiffs’ position that “crime” was commonly understood as

being restricted to common-law felonies.

[5] Webster’s Dictionary defined the word “crime” in 1867

as “An act which violates a law, divine or human; . . . But in

a more common or restricted sense, a crime denotes violation

of public law, of a deeper and more atrocious nature.” NOAH

WEBSTER, AN AMERICAN DiCTIONARY OF THE ENGLISH

LANGUAGE 246 (Goodrich ed., 1867) (emphasis in original).

And William Blackstone observed that “in common usage the

word ‘crimes’ is made to denote such offenses as are of a

deeper and more atrocious dye; while smaller faults and omis-

sions of less consequence are comprised under the gentler

7668 HARVEY v. BREWER

name of ‘misdemeanors’ only.” 4 COMMENTARIES ON THE LAWS

OF ENGLAND *5 (1769).

[6] Noticeably absent from these definitions is any men-

tion whatsoever of common-law felonies. While a litigant

could use these definitions to support the proposition that the

word “crime” in Section 2 refers only to serious crimes or fel-

onies (such that misdemeanors would not fit within the defini-

tion), that is not plaintiffs’ argument. They instead argue that

in 1868 “crimes” meant “felonies at common law,” and

nowhere in any of the definitions is it suggested that the word

“crimes” was so confined. In fact, the cited definitions plainly

undermine plaintiffs’ argument by omitting any reference to

the common law.

Even if we were to assume arguendo that Section 2 is lim-

ited to serious crimes or felonies (as plaintiffs’ definitions

suggest), a far better reference point for determining whether

a crime is serious is to look at how the crime is designated by

the modern-day legislature that proscribed it, rather than

indulging the anachronisms of the common law. Indeed, that

is precisely the course the Supreme Court has charted in

defining the contours of the right to a jury trial.

[7] The Sixth Amendment provides: “In all criminal prose-

cutions, the accused shall enjoy the right to a speedy and pub-

lic trial, by an impartial jury . . . .” U.S. Const. amend. VI; see

also U.S. Const. art. III, § 2, cl. 3 (“The Trial of all Crimes,

except in Cases of Impeachment, shall be by Jury.”). The

Supreme Court has declined to extend this guarantee to petty

offenses because such offenses were tried without a jury at

common law. See Duncan v. Louisiana, 391 U.S. 145, 159

(1968); Cheff v. Schnackenberg, 384 U.S. 373, 379 (1966).

But when determining what qualifies as a “criminal prosecu-

tion” that requires a jury trial, as opposed to the prosecution

of a mere petty offense, the Supreme Court has rejected the

rigid common-law categories and instead “sought more

‘objective indications of the seriousness with which society

HARVEY v. BREWER 7669

regards the offense.’ ” Blanton v. North Las Vegas, 489 U.S.

538, 541-42 (1989) (quoting Frank v. United States, 395 U.S.

147, 148 (1969)). In that context, the Supreme Court has

explained:

In fixing the maximum penalty for a crime, a legisla-

ture includes within the definition of the crime itself

a judgment about the seriousness of the offense. The

judiciary should not substitute its judgment as to

seriousness for that of a legislature, which is far bet-

ter equipped to perform the task, and is likewise

more responsive to changes in attitude and more

amenable to the recognition and correction of their

misperceptions in this respect.

Blanton, 489 U.S. at 541 (citations, quotation marks, and

brackets omitted).

[8] At bottom, plaintiffs provide absolutely no support for

the proposition that the word “crimes” meant “common-law

felonies” at the time of the Fourteenth Amendment’s ratifica-

tion. At most, they have some support for the argument that

Section 2 should be limited to serious offenses, a proposition

which does not help their cause because they have all been

convicted of crimes currently classified as felonies.

3. Legislative history and the Reconstruction and

Enabling Acts

With the plain meaning and contemporary usage of the

word “crime” stacked against them, plaintiffs next turn to the

legislative history of the Fourteenth Amendment. They find

no support in the immediate drafting history or the debates

surrounding the Fourteenth Amendment, which they argue

should not count against them because the Supreme Court has

noted that “[t]he legislative history bearing on the meaning of

the relevant language of § 2 is scant indeed.” Richardson, 418

U.S. at 43. But what little history there is regarding inclusion

7670 HARVEY v. BREWER

of the word “crime” in Section 2 undermines plaintiffs’ argu-

ment. For instance, Representative Ephraim R. Eckley of

Ohio made the following observation in support of Section 2:

“Under a Congressional act persons convicted of a crime

against the laws of the United States, the penalty for which is

imprisonment in the penitentiary, are now and always have

been disfranchised.” Cong. Globe, 39th Cong., 1st Sess. 2535

(1866). Like the dictionaries plaintiffs cite, this statement sup-

ports the view that “crimes” might be limited to serious

crimes, or crimes the penalty for which is imprisonment in the

penitentiary, but both of those categories include the plain-

tiffs’ offenses and conflict with their common-law felony the-

ory.

[9] Beyond this drafting history, “[f]urther light is shed on

the understanding of those who framed and ratified the Four-

teenth Amendment, and thus on the meaning of § 2, by the

fact that at the time of the adoption of the Amendment, 29

States had provisions in their constitutions which prohibited,

or authorized the legislature to prohibit, exercise of the fran-

chise by persons convicted of felonies or infamous crimes.”

Richardson, 418 U.S. at 48 & n.14 (citing state constitutions).

Of the 29 State constitutions that Richardson referred to, it

does not appear that any of them limited disenfranchisement

to persons convicted of common-law felonies. See, e.g., Ala.

Const. art. VI, § 5 (1819) (providing for disenfranchisement

of persons “convicted of bribery, perjury, forgery, or other

high crimes or misdemeanors”); Conn. Const. art. VI, § 3

(1818) (“bribery, forgery, perjury, duelling, fraudulent bank-

ruptcy, theft, or other offence for which an infamous punish-

ment is inflicted”); Del. Const. art. IV, § 1 (1831) (“convicted

of a crime deemed by law a felony”); Ore. Const. art. II, § 3

(1857) (“of any crime which is punishable by imprisonment

in the penitentiary”); Va. Const. art. III, § 14 (1830)

(“convicted of any infamous offence”). It would be remark-

able if the many states ratifying the Fourteenth Amendment

intended to nullify their own constitutional provisions, but

that is exactly what plaintiffs’ reading of Section 2 entails.

HARVEY v. BREWER 7671

Finding no help in the history of the Fourteenth Amend-

ment’s ratification, plaintiffs focus their argument on the

Reconstruction Act of March 2, 1867. The Reconstruction Act

was enacted by the 39th Congress in 1867—nine months after

the very same Congress submitted the Fourteenth Amendment

to the States for ratification. Section 5 of the Act “established

conditions on which the former Confederate States would be

readmitted to representation in Congress.” Richardson, 418

U.S. at 49. Section 5 of the Act provided, in part:

That when the people of any one of said rebel States

shall have formed a constitution of government in

conformity with the Constitution of the United States

in all respects, framed by a convention of delegates

elected by the male citizens of said State, twenty-one

years old and upward, of whatever race, color, or

previous condition, who have been resident in said

State for one year previous to the day of such elec-

tion, except such as may be disenfranchised for par-

ticipation in the rebellion or for felony at common

law. . . . said State shall be declared entitled to repre-

sentation in Congress, and senators and representa-

tives shall be admitted therefrom on their taking the

oath prescribed by law, and then and thereafter the

preceding sections of this act shall be inoperative in

said State.

14 Stat. 428, § 5 (emphasis added).2

Similarly, the various enabling acts used to readmit the

Confederate States to representation in Congress provide, in

nearly identical language, that a “fundamental condition” of

2

The first ellipsis omits a number of conditions placed on the Confeder-

ate States before they would be readmitted to representation in Congress,

including ratification of the Fourteenth Amendment. While those condi-

tions are important to understanding the Reconstruction Act, and various

constitutional questions surrounding it, they are not important here.

7672 HARVEY v. BREWER

readmission is that their state constitutions shall never “be so

amended or changed as to deprive any citizen or class of citi-

zens of the United States of the right to vote in said State, who

are entitled to vote by the constitution thereof herein recog-

nized, except as a punishment for such crimes as are now fel-

onies at common law.” 15 Stat. 73 (1868) (emphasis added)

(readmitting North Carolina, South Carolina, Louisiana,

Georgia, Alabama and Florida); see also 15 Stat. 72 (1868)

(readmitting Arkansas); 16 Stat. 62 (1870) (readmitting Vir-

ginia); 16 Stat. 67 (1870) (readmitting Mississippi). Plaintiffs

conclude that because the Reconstruction and Enabling Acts

only permitted disenfranchisement for felonies at common

law, so too must Section 2 of the Fourteenth Amendment be

read to only permit disenfranchisement for felonies at com-

mon law.

[10] But the opposite is true. The Reconstruction Act’s ref-

erence to felonies at common law only shows that when the

39th Congress meant to specify felonies at common law, it

was quite capable of using that phrase. That Congress used

the phrase “other crime” in Section 2, while specifying “fel-

ony at common law” in a later act, clearly indicates that the

two phrases have different meanings and Congress was capa-

ble of using each when it intended to do so.

Plaintiffs’ response—which is really the driving force of

their entire argument—is that we must read Section 2 and the

Reconstruction and Enabling Acts harmoniously and interpret

them identically because to do otherwise would mean “that

the Fourteenth Amendment is in direct and absolute conflict

with the Reconstruction and Enabling Acts.” Harvey Br. at

31. That is, if we reject plaintiffs’ argument, the Fourteenth

Amendment would permit what the Reconstruction Act

explicitly prohibits: disenfranchisement for statutory felonies.

See Harvey Br. at 32 (“[Section 2], as construed by the Dis-

trict Court, affirmatively authorizes disenfranchisement for

statutory felonies. The Acts prohibit disenfranchisement for

HARVEY v. BREWER 7673

statutory felonies. It is hard to imagine a more self-evident

conflict.”).

The most glaring flaw with this argument is that the

absence of a constitutional prohibition does not somehow bar

a statutory one. Simply because the Fourteenth Amendment

does not itself prohibit States from enacting a broad array of

felon disenfranchisement schemes does not mean that Con-

gress cannot do so through legislation—provided, of course,

that Congress has the authority to enact such a prohibition.

Plaintiffs’ confusion on this point seems to stem from lan-

guage in Richardson, in which the Supreme Court noted that

felon disenfranchisement is given an “affirmative sanction” in

Section 2 of the Fourteenth Amendment. 418 U.S. at 54. But

the “affirmative sanction” language in Richardson only means

that the Equal Protection Clause of the Fourteenth Amend-

ment does not prohibit felon disenfranchisement because Sec-

tion 2 brings it outside of Section 1’s prohibition. It certainly

does not mean that a certain felon disenfranchisement scheme

is constitutionally mandated by Section 2, as plaintiffs would

read it.

Plaintiffs’ reliance on the Eleventh Circuit’s opinion in

Johnson v. Governor of Florida, 405 F.3d 1214 (11th Cir.

2005), is also misguided. Johnson held that felon-

disenfranchisement claims are not cognizable under the Vot-

ing Rights Act (“VRA”), which proscribes States from enact-

ing voter qualifications or standards that discriminate based

on race. Id. at 1234; 42 U.S.C. § 1973. As support for this

conclusion, it reasoned that if section 2 of the VRA extended

to such claims, the VRA “would prohibit a practice that the

Fourteenth Amendment permits Florida to maintain.” John-

son, 405 F.3d at 1234.

The Eleventh Circuit’s point was not that the VRA would

somehow conflict with Section 2 of the Fourteenth Amend-

ment if it were interpreted to bar felon disenfranchisement,

but that it would be beyond Congress’s Section 5 enforcement

7674 HARVEY v. BREWER

power. See U.S. Const. amend XIV, § 5 (“The Congress shall

have power to enforce, by appropriate legislation, the provi-

sions of [the Fourteenth Amendment].”); see also Baker v.

Pataki, 85 F.3d 919, 930 (2d Cir. 1996) (opinion of Mahoney,

J.) (“[A]ny attempt by Congress to subject felon disenfran-

chisement provisions to the ‘results’ methodology of [the

VRA] would pose a serious constitutional question concern-

ing the scope of Congress’ power to enforce the Fourteenth

and Fifteenth Amendments.”); Farrakhan v. Washington, 359

F.3d 1116, 1121-25 (9th Cir. 2004) (Kozinski, J., dissenting

from denial of rehearing en banc) (arguing that felon disen-

franchisement claims are not cognizable under the VRA). The

argument in Johnson was that a congressional Act prohibiting

felon disenfranchisement could not be authorized under Con-

gress’s Section 5 powers because such an Act would not be

enforcing the Fourteenth Amendment, which plainly permits

felon disenfranchisement. But see Farrakhan v. Washington,

338 F.3d 1009, 1016 (9th Cir. 2003).

But the Reconstruction Act was most assuredly not enacted

under the Section 5 power, as it preceded the Fourteenth

Amendment’s ratification by more than a year. Cf. Oregon v.

Mitchell, 400 U.S. 112, 192 (1970) (Harlan, J., concurring in

part and dissenting in part) (discussing the Reconstruction

Congress’s “power to interfere with state voter qualifica-

tions,” positing that this power “was said to exist in a variety

of constitutional provisions, including Art. I, § 2, Art. I, § 4,

the war power, the power over territories, the guarantee of a

republican form of government, and § 2 of the Thirteenth

Amendment.”). Johnson, therefore, is inapposite.

Finally, even if we could discern some conflict between

Section 2 of the Fourteenth Amendment and the Reconstruc-

tion and Enabling Acts, plaintiffs’ suggestion that this

requires reading the Amendment to comport with the Acts has

it exactly backward. See Harvey Br. at 35 (“The Fourteenth

Amendment should be construed so that it is consistent with

the Acts.”). The canon of constitutional avoidance—providing

HARVEY v. BREWER 7675

that a court will not pass upon a constitutional question if

there is some other ground upon which the case may be

disposed—is not a two-way street. There is no canon of “stat-

utory avoidance.” Courts construe statutes to avoid constitu-

tional problems, not the other way around.

[11] At bottom, plaintiffs urge an interpretation of Section

2’s “other crime” provision that is in extreme tension with

Richardson, contrary to the phrase’s plain meaning and its

past and contemporary usage, and belied by the Fourteenth

Amendment’s history. In response to these failings, they offer

only an imaginary constitutional dilemma accompanied by an

invitation to insert language into the Fourteenth Amendment’s

text because of a newly conceived canon of statutory avoid-

ance that contradicts basic principles of constitutional inter-

pretation. We decline their invitation and reject their equal

protection claim.

B. Conditioning Restoration of the Right to Vote upon

Payment of Fines and Restitution

The three Coronado plaintiffs who have only one felony

conviction (Coronado, Garza, and Rubio) also challenge Ari-

zona’s scheme for automatically restoring the right to vote to

one-time felons who complete their sentences and pay any

fines or restitution imposed against them. See Ariz. Rev. Stat.

§ 13-912(A). They argue that requiring felons to pay any

money owed under the terms of their sentences violates the

Equal Protection Clause of the Fourteenth Amendment, the

bar against poll taxes in the Twenty-Fourth Amendment, the

Privileges or Immunities Clauses in both federal and state

constitutions, and the free and equal elections provision in

Article II, § 21 of the Arizona Constitution. We address each

of these claims.

[12] At the outset, we note two important points. First,

plaintiffs acknowledge that, “once taken away the right [to

vote] does not have to be restored.” Coronado Br. at 15. That

7676 HARVEY v. BREWER

is, once a felon is properly disenfranchised a state is at liberty

to keep him in that status indefinitely and never revisit that

determination. See Richardson, 418 U.S. at 26-27 (upholding

California’s scheme disenfranchising felons, including those

who had completed the entirety of their sentences). But plain-

tiffs argue that “once a state adopts a scheme to restore this

fundamental right, it may not require satisfaction of an uncon-

stitutional condition.” Id. Second, no plaintiff alleges that he

is indigent, so to the extent that fact might affect the analysis,

we explicitly do not address challenges based on an individu-

al’s indigent status. All we know from the allegations con-

tained in the plaintiffs’ complaint is that each of them failed

to pay obligations owed under the terms of his criminal sen-

tence.

[13] We begin with the equal protection claim. Plaintiffs’

argument is that they have been deprived of the fundamental

right to vote and that we are therefore required to review Ari-

zona’s scheme for restoring the voting rights of felons under

a strict scrutiny standard. But they cannot complain about

their loss of a fundamental right to vote because felon disen-

franchisement is explicitly permitted under the terms of Rich-

ardson. 418 U.S. at 55. What plaintiffs are really complaining

about is the denial of the statutory benefit of re-

enfranchisement that Arizona confers upon certain felons.

This is not a fundamental right; it is a mere benefit that (as

plaintiffs admit) Arizona can choose to withhold entirely.

Therefore, we do not apply strict scrutiny as we would if

plaintiffs were complaining about the deprivation of a funda-

mental right.

[14] Even a statutory benefit can run afoul of the Equal

Protection Clause, though, if it confers rights in a discrimina-

tory manner or distinguishes between groups in a manner that

is not rationally related to a legitimate state interest. See

Fields v. Palmdale School Dist., 427 F.3d 1197, 1209 (9th

Cir. 2005) (“[G]overnment actions that do not affect funda-

mental rights or liberty interests and do not involve suspect

HARVEY v. BREWER 7677

classifications will be upheld if it they are rationally related

to a legitimate state interest.”). For instance, a state could not

choose to re-enfranchise voters of only one particular race,

see Hunter, 471 U.S. at 233, or re-enfranchise only those fel-

ons who are more than six-feet tall. Cf. Nordlinger v. Hahn,

505 U.S. 1, 11 (1992) (“[T]he Equal Protection Clause is sat-

isfied so long as there is a plausible policy reason for the clas-

sification . . . and the relationship of the classification to its

goal is not so attenuated as to render the distinction arbitrary

or irrational.” (citations omitted)).

[15] We have little trouble concluding that Arizona has a

rational basis for restoring voting rights only to those felons

who have completed the terms of their sentences, which

includes the payment of any fines or restitution orders. Just as

States might reasonably conclude that perpetrators of serious

crimes should not take part in electing government officials,

so too might it rationally conclude that only those who have

satisfied their debts to society through fulfilling the terms of

a criminal sentence are entitled to restoration of their voting

rights. See Madison v. State, 163 P.3d 757, 771 (Wash. 2007);

see also Owens v. Barnes, 711 F.2d 25, 27-28 (3d Cir. 1983)

(scheme restoring voting rights to unincarcerated felons satis-

fies rational basis review). Perhaps withholding voting rights

from those who are truly unable to pay their criminal fines

due to indigency would not pass this rational basis test, but we

do not address that possibility because no plaintiff in this case

has alleged that he is indigent.

[16] Plaintiffs’ Twenty-Fourth Amendment claim fares no

better. The Twenty-Fourth Amendment provides:

The right of citizens of the United States to vote in

any primary or other election for President or Vice

President, for electors for President or Vice Presi-

dent, or for Senator or Representative in Congress,

shall not be denied or abridged by the United States

7678 HARVEY v. BREWER

or any State by reason of failure to pay any poll tax

or other tax.

U.S. Const. amend. XXIV. Plaintiffs’ right to vote was not

abridged because they failed to pay a poll tax; it was abridged

because they were convicted of felonies. Having lost their

right to vote, they now have no cognizable Twenty-Fourth

Amendment claim until their voting rights are restored. That

restoration of their voting rights requires them to pay all debts

owed under their criminal sentences does not transform their

criminal fines into poll taxes.

[17] Plaintiffs next rely on the Privileges or Immunities

Clause in the Fourteenth Amendment, which reads: “No State

shall make or enforce any law which shall abridge the privi-

leges or immunities of citizens of the United States.” U.S.

Const. amend. XIV, § 1. Assuming for the sake of argument

that the right of suffrage is one of the privileges or immunities

protected by this clause, contra Minor v. Happersett, 88 U.S.

162, 171, 177 (1874), plaintiffs’ argument fails under the

exact same rationale adopted by the Supreme Court in Rich-

ardson: Section 1 of the Fourteenth Amendment, which

includes both the Equal Protection and Privileges or Immuni-

ties Clauses, “could not have been meant to bar outright a

form of disenfranchisement which was expressly exempted

from the less drastic sanction of reduced representation which

§ 2 imposed for other forms of disenfranchisement.” 418 U.S.

at 55.

[18] Plaintiffs’ argument based on the Arizona Constitu-

tion’s Privileges or Immunities Clause fails for the same rea-

son. See Ariz. Const. art. II, § 13 (“No law shall be enacted

granting to any citizen, class of citizens, or corporation other

than municipal, privileges or immunities which, upon the

same terms, shall not equally belong to all citizens or corpora-

tions.”). The Arizona Supreme Court has “held that this

clause provides the same benefits as its federal counterpart,”

Standhardt v. Super. Ct. ex rel. County of Maricopa, 77 P.3d

HARVEY v. BREWER 7679

451, 464 n.19 (Ariz. 2003), and plaintiffs acknowledge that its

protections do not extend beyond those provided in the Four-

teenth Amendment of the United States Constitution. Coro-

nado Br. at 35. Because the Fourteenth Amendment cannot be

read to prohibit Arizona’s felon disenfranchisement scheme,

neither can this provision of the Arizona Constitution.

[19] Finally, we reject plaintiffs’ argument that requiring

them to pay off their criminal fines and restitution orders vio-

lates the Arizona Constitution’s Free and Equal Elections

Clause. Ariz. Const. art. II, § 21 (“All elections shall be free

and equal, and no power, civil or military, shall at any time

interfere to prevent the free exercise of the right of suf-

frage.”). The Arizona Constitution expressly permits felon

disenfranchisement, see Ariz. Const. art. VII, § 2, and lest

there be a conflict between these two constitutional provi-

sions, the best reading of the Free and Equal Elections Clause

is that it does not apply to disenfranchised felons, but only to

those who are otherwise qualified to vote. See Arizona ex rel.

Nelson v. Jordan, 450 P.2d 383, 386 (Ariz. 1969) (when “sep-

arate parts of a constitution are seemingly in conflict, it is the

duty of the court to harmonize both so that the constitution is

a consistent workable whole”). And as between felons, Arizo-

na’s statutory scheme restoring voting rights applies equally

to all. All felons must complete the terms of their sentences

before their voting rights are restored. Ariz. Rev. Stat. § 13-

912(A).

Conclusion

[20] The Fourteenth Amendment permits States to disen-

franchise felons, regardless of whether their offenses were

recognized as felonies at common law. Requiring felons to

satisfy the terms of their sentences before restoring their vot-

ing rights is rationally related to a legitimate state interest, and

does not violate any of the various constitutional provisions

plaintiffs rely upon.

AFFIRMED.