Amicus Curiae Brief — Richardson v. Ramirez

(i)

INDEX

INTEREST OF AMICUS .

SUMMARY OF ARGUMENT .

ARGUMENT .

California’s Disenfranchisement Of Former

Felons Is Not Necessary To Promote A

Compelling State Interest And Therefore

Denies Equal Protection Of The Laws .

Section 2 Of The Fourteenth Amendment

Is Not An Independent Grant Of Authority

To States To Disenfranchise Former

Offenders .

A. Neither the language of Section 2 nor

its legislative history support the view

that it was meant to establish a dis-

crimination not susceptible to equal

protection scrutiny .

B. Prior judicial interpretations of the

effect of Section 2 on offender voting

restrictions were not well reasoned,

are distinguishable from this case, and

should not be deemed binding .

Actions Taken By Those Concerned With

Criminal Justice, Recent State Legislative

Activity, And Positions Adopted By

Groups Concerned With The Electoral

Process, Confirm That There Is No

Justification For Denying Former Felons

Their Fundamental Right To Vote

sn - if

16

16

24

(ii)

CONCLUSION

APPENDIX A

APPENDIX B

TABLE OF AUTHORITIES

Cases: \

Baker v. Carr,

369 U.S. 186 (1962) .

Beacham v. Braterman, —

300 F.Supp. 182 (S.D. Fla. 1969),

aff'd. mem. 396 U.S. 12 (1969) .

Breedlove v. Suttles,

302 U.S. 277 (1937) .

Bullock v. Carter,

405 US. 134 (1972) .

Carrington v. Rash, Z

380 U.S. 89 (1965)

Dillenburg v. Kramer,

469 F.2d 1222 (9th Cir. 1973).

Dunn v. Blumstein,

405 US. 330 (1972) .

Evans v. Cornman,

398 U.S. 419 (1970) .

Fincher v. Scott,

352 F.Supp. 117 (M.D.N.C. 1972),

aff'd. mem. 411 U.S. 961 (1973) .

Page

32

12, 15, 20, 21

7, 8, 10

10, 20, 21, 22

(iii)

Green v. Board of Elections,

380 F.2d 445 (2d Cir. 1967),

cert. den. 389 U.S. 1048 (1968) .

Harper v. Virginia Board of Elections,

383 U.S. 663 (1966) . ;

Kramer v. Union Free School District,

395 U.S. 621 (1969) . .

Kronlund v. Honstein,

327 F.Supp. 71 (N.D.Ga. 1971)

Lassiter v. Northampton County Board

of Election,

360 U.S. 45 (1959)

Leary v. United States,

395 U.S. 6 (1969) .

Otsuka v. Hite,

64 Cal.2d 596, 51 Cal. Rptr. 284,

6 P26 417 OMS) 2 ew

Phoenix v. Kolodziejski,

399 U.S. 204 (1970) .

Pope v. Williams,

193 U.S. 621 (1904) .

Ramirez v. Brown,

9 Cal.3d 199 (1973)

Reynolds v. Sims,

377 U.S. 533 (1964) . .

Stephens v. Yeomans,

327 F.Supp. 1182 (D.N.J. 1970) .

United States v. Anthony,

24 F.ed Cas. No. 14,

459 P. 829 (C.C.N.D.N.Y. 1873) .

10, 11, 21, 23

7, 9, 15, 24

7, 9, 10

10

22, 23

(iv)

Wesberry v. Sanders,

CR a a ge ey

Constitutional and Statutory Provisions:

U.S. Const.

I eg Se oe

eS Be a a te ee Ge oe a eee ee ee

Amendment 8 ey te ee ie

ee ee ee eee OR eR ee

Cal. Const.

Re gs a ar es eee 7

Se Aa sk ne oe ee ew a See 7

Cal. Govt. Code 6275 (West 1966)... 2... 2. I

Wash. Rev. Code

SESE ee Me eee Ie eee

NOE ee ORL al Ma ge UE le ee

DN is ea eee EET) oi als eee

Other Authorities:

American Law Institute,

er ee Bg es ra ig A al oe ae

16 Am. Jur.2d Constitutional Law

ee we eg ee ae ee

A. Babington, The Power to Silence (1968) . . . . .. 2

Black’s Law Dictionary

re ee Os NE a ck a ON a ea

meee fee Oe Peas 4 dk ek ek ee eR ee Te

Brief for the State of California as

pe ee. ee eae ees Oe ee

(v)

California League of Women Voters,

See Geet (097A) F<.) se ee

Democratic Party Platform - 1972 . ..... .

Developments in the Law — Equal Protection,

rr i CO a sg ee Stee

E. du Fresne and W. du Fresne,

The Case for Allowing Convicted Mafiosi

to Vote for Judges: Beyond Green v.

Board of Elections, 19 DePaul L. Rev.

a ee ee ee

National Advi C Te

Justice Standards and Goals, Report on

as ny yee ee

National Conference of Commissioners on

Uniform State Laws, Uniform Act on

the Status of Convicted Persons (1965)... .-. . :

to Vote: Background and Developments,

11 Am. Crim. L. Rev. 720 (1973)

President’s Commission on Law Enforcement

and Administration of Justice, Task

27

19, 29

Force Report: Corrections (1967) . . ..... 26, 28

CE a ek eee eae eS

i

IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

No. 72-1589

VIOLA N. RICHARDSON, as County Clerk and Registrar

of Voters for the County of Mendocino, individually and as

a representative of the class of all other County Clerks and

Registrars of Voters,

Petitioner,

v.

ABRAN RAMIREZ, LARRY GILL and ALBERT LEE, on

behalf of themselves and all others similarly situated, Los

Pintos, 7th Step Foundation, Inc. (California Affiliates),

Prisoners’ Union, and The League of Women Voters of

California,

Respondents.

BRIEF OF THE AMERICAN BAR ASSOCIATION,

AMICUS CURIAE

INTEREST OF AMICUS

The American Bar Association is a national organization

of the legal profession. It has more than 155,000 members

from all states and has for some years maintained an active

interest in criminal justice improvement. One of its recent

and more ambitious undertakings in this area has been the

Project on Minimum Standards for Criminal Justice.

2

In 1970, the American Bar Association established an

interdisciplinary Commission on Correctional Facilities and

Services to address its growing interest in and commitment

to the correctional phase of criminal justice administration,

The Commission has undertaken a program to stimulate

broadscale improvement in all aspects — legal and opera-

tional — of the nation’s systems for correction and reha-

bilitation of criminal offenders. Among the Commission's

several action projects is a Resource Center for Correctional

Law and Legal Services concerned, among other things,

with analysis and resolution of the growing number of legal

and constitutional issues being raised in connection with the

operation of correctional programs and systems. Focusing

on the demands of both law and sound correctional prac-

tice, the Commission is anxious to contribute to full con-

sideration of legal questions which bear significantly on the

effectiveness and fairness of our correctional aratus.

Sharing these interests are other major components of

the American Bar Association, including the Young Lawyers

Section and the Section of Individual Rights and Responsi-

bilities. They join the Commission in submitting this brief

on behalf of the Association to aid the Court in resolving

the issues before it.

SUMMARY OF ARGUMENT

This case presents difficult questions about the applica-

tion of current Constitutional standards to state laws which

restrict the fundamental right to vote. The Court is being

* ‘The Association has filed with the clerk of the Court letters

from counsel for both parties consenting to the submission of this

amicus curiae brief.

3

asked to determine whether the Supreme Court of Cali-

fornia was correct when it found that provisions of the

State Constitution disenfranchising persons convicted of

* «infamous crimes” or “high crimes” were in violation of

the Equal Protection Clause of the Fourteenth Amend-

ment, as applied to former felons whose sentences and

periods of parole had expired.

While there is broad recognition today of the desirability

of restoring rehabilitated offenders to the normal rights and —

privileges of citizens, including the right to vote, this case

deals only with the Constitutional dimension of that goal,

ie., the extent to which the Federal Constitution will toler-

ate disenfranchisement of former offenders who have rejoined

the general class of citizens, and how established tests under

the Equal Protection Clause for justification of voting restric-

tions apply to this class of citizens.

The issues are complicated by (i) special language in the

Fourteenth Amendment which may warrant different treat-

ment of the ex-offender class than groups affected by other

kinds of voter eligibility requirements, and (ii) recent offender

disenfranchisement cases, affirmed without opinion by this

Court, which suggest that a separate standard or frame of

reference may exist for measurement of ex-felon voting ex-

clusions against Fourteenth Amendment guarantees. Only

restrictions on the voting rights of discharged ex-felons are

under review in this case, and not those of convicted per-

sons still serving sentences, whether in prison or under parole,

probation or other correctional supervision. |

In the view of amicus, the judgment of the court below

was correct. Because the right to vote is central im our

representative government system, this Court has enunciated

exacting tests for determining whether state classifications

—y

4

which deny the franchise to certain groups of citizens and

not others contravene the Equal Protection Clause. Briefly,

these require the identification of a “compelling state in-

terest” behind the exclusion and a determination that the

exclusion is a necessary and not unduly burdensome meth-

od, among available alternatives, for adequately protecting

that interest.

Amicus contends, first, that these tests presumptively

are and should be applicable to classifications which deny

ex-felons the right to vote. Whatever special considerations

may exist for felons still under sentence, both the Consti-

tutional priority for protection of voting rights and the

language of the Equal Protection Clause warrant no ex-

ception for discharged ex-offender citizens.

Given the legitimacy of applying these Equal Protection

standards, it appears clear that blanket restrictions disen-

franchising all former felons are neither “necessary” nor

“non-burdensome” methods of insuring the state’s compel-

ling interest in preservation of the integrity of the electoral

process and the representative government framework of

which it is an integral part. Indeed, in light of the cur-

rent character of our election systems, contemporary ballot

ing and voter registration machinery, and penal sanctions

available for unlawful interference with the electoral and

governmental processes, blanket disenfranchisement for

felony violations would have difficulty meeting the “ra-

tional relationship” test which previously applied (ie., up

to 1969) in determining the Constitutional appropriateness

of voting restrictions. In asserting this infirmity for broad

“felony”, “high crime”, “infamous crime” disqualifications,

amicus expresses no judgment on whether laws disenfran-

chising ex-offenders for specific enumerated crimes related

to the electoral or governmental process (e.g., vote fraud,

5

bribery of officials, violence against or intimidation of

candidates) would be Constitutional.

It has been asserted that ex-felon disenfranchisement may

stand on a different Constitutional footing than other voter

restrictions by virtue of special language in Section 2 of

the Fourteenth Amendment. Section 2 reduces the basis

of Congressional representation in states which deny the

right to vote to male citizens “except for participation in

rebellion, or other crime”. The argument is that Section 1

(equal protection) could not have been intended to outlaw

a discrimination which Settion 2 (reduced representation

penalty) expressiy allows. This reasoning seems unsupported

by either the language of the exception or its limited legis-

lative history.

The legislative history of this Reconstruction measure

offers no substantiation of an intent to establish a tradi-

tional felon disenfranchisement qualification in Section 2.

-If anything, it suggests a desire to validate disenfranchise-

ment of those who participated in the rebellion or in re-

lated disloyal or seditious conduct. The phrase “or other

crime”, if literally interpreted to preclude Equal Protection

scrutiny, would permit the untenable conclusion that a

state could Constitutionally disenfranchise individuals even

for such minor criminal misbehavior as traffic violations,

petty gambling, etc. This Court cannot avoid interpreta-

tion of the “other crime” exception and should do so, in

amicus’ view, (i) in terms of the disloyal behavior rationale

that seemed to motivate the phrase’s coupling with “‘parti-

cipation in rebellion” and (ii) without precluding Equal Pro-

tection examination of state ex-offender disenfranchisement

laws.

6

Finally, the Court will need to consider its recent memo

randum affirmances of disenfranchisement measures in North

Carolina and Florida which were broadly applicable to

felons, and Petitioner's assertion (grounded in Green ».

Board of Elections) that the propriety of excluding felons

from the franchise has been frequently articulated by this

Court “as an example of what states may properly do”.

While the Florida and North Carolina decisions do indeed

suggest an immunity from current Equal Protection stand-

ards for felon disenfranchisement, they should not be con-

sidered controlling. They did not involve full and reasoned

analysis by this Court, and are distinguishable from the in-

stant case. (One involved an incarcerated felon and the

other applied the “rational relationship” test). The asser

tion that this Court has assumed the Constitutional legiti-

macy of offender disenfranchisement in numerous opinions

is not well founded, since it is based on dicta and factual

situations which are not pertinent to or consistent with

today’s tests of the Constitutional legitimacy of voter re

striction measures.

For the Court to affirm a Fourteenth Amendment pro

hibition against blanket ex-felon disenfranchisement measure

will do no harm to state interests in effective correctional

administration. Such disenfranchisement cannot be shown

to serve any significant rehabilitative purpose. Indeed, it

has been the near unanimous position of correctional ad-

ministrators, study commissions, law reform codes, and stv

dents of penology that restoration of offender civil rights

serves the commitment to offender rehabilitation and rei

tegration that is now a basic tenet of every state correc:

tional system.

7

ARGUMENT

I. CALIFORNIA'S DISENFRANCHISEMENT OF FOR-

MER FELONS IS NOT NECESSARY TO PROMOTE

A COMPELLING STATE INTEREST AND THERE-

FORE DENIES EQUAL PROTECTION OF THE LAWS

. There is no right more basic to our democratic form of

government than the sight to vote. Indeed, this Court has

recognized that voting is perhaps the one right most funda-

mental to our system.! “Other rights, even the most basic,

are illusory if the right to vote is undermined”. Wesberry

v, Sanders, 376 U.S. 1, 17 (1964). Because the provisions

of California law challenged herein? deprive a class of

| The fundamental nature of the right to vote has been expressed

by the Court in numerous voting cases. Dunn v. Blumstein, 405 US.

330 (1972) (invalidating Tennessee’s one year residency requirement);

Bullock v. Carter, 405 U.S. 134 (1972) (invalidating a Texas primary

filing fee system); Phoenix v. Kolodziejski, 399 U.S. 204 (1970) (pro- -

vision limiting the vote on city general obligation bonds to lind- _

owners held unconstitutional); Evans v. Cornmman, 398 U.S. 419

(1970) (invalidating a regulation limiting the vote on local revenue

bonds to property taxpayers); Kramer v. Union Free School Dis-

trict, 395 U.S. 621 (1969) (regulation limiting voting in school

board elections to property owners, parents of school children and

those leasing property in school district held unconstitutional);

Harper v. Virginia State Board of Elections, 383 US. 663 (1966) -

(invalidating poll tax); Currington v. Rash, 380 U.S. 89 (1965) (re-

striction of voting privilege of certain military personnel held un-

constitutional). See also the reapportionment cases, Reynolds v.

Sims, 377 U.S. 533 (1964), and Baker v. Carr, 369 US. 186 (1962).

2 California Constitution, Art. Il, Section 3 and Art. XX, Sec.

11 with implementing legislation. These sections, respectively, man-

date legislation to exclude persons convicted of “infamous crimes”

or “high crimes” from the franchise. re een

continued

citizens of this most fundamental of rights, their operation

must withstand scrutiny under the Equal Protection Clause

of the Fourteenth Amendment.

In Dunn y. Blumstein, 405 U.S. 330, 337 (1972), this

Court set forth the standard of review to be applied under

the Fourteenth Amendment when testing the validity of

state-imposed voting restrictions:

. if a challenged statute grants the right

to vote to some citizens and denies the fran-

chise to others, the Court must determine

whether the exclusions are necessary to pro-

mote a compelling state interest.”

In enunciating this stringent test for reviewing voter

classifications in Dunn, the Court went beyond the then

existing standard-which required the showing of a “rational

relationship” between the classification and a legitimate

2 (continued) certain enumerated offenses, e.g., misappropriation

of public money, bribery, malfeasance in office, but the basic felony (in-

famous/high crime) exclusion is at issue in this case since the crimes of all

individual respondents fell in this classification (ie. robbery, burglary,

drug use) and the class action was brought on behalf of disenfran-

chised felons generally. In Otswka v. Hite, 64 Cal. 2d 596, 414

P.2d 412 (1966), the California Supreme Court construed the fore-

going provisions as requiring an inquiry into the nature of the crime

and, on that basis, determining whether the offender “may be reason

ably deemed to constitute a threat to the integrity of the elective

process.” There was no attempt to delimit the meaning of “high

crimes” or “infamous crimes” to specific felonies. The same court

found this limitation of the disenfranchisement provisions inadequate

under new equal protection standards and, in substance, reversed the

Otsuka decision in the case at bar.

9

state purpose. ? in 20 doing, it:was. following the logical

course charted by previous cases dealing with the election-

process in general and voting in particular. ‘

The concept that a state no longer may invoke even a

“compelling interest” to limit the right to vote without

examining the necessity of the method used, was earlier

established in Kramer v. Union Free School District, 395

U.S. 621 (1969):

“For assuming, arguendo, that New York

legitimately might limit the franchise in

these school district elections to those

‘primarily interested in school affairs’,

close scrutiny of the §2021 classification

demonstrates that they do not accomplish

this purpose with sufficient precision to

justify denying appellant the franchise . . .

In other words, the classifications must be

tailored so that the exclusion of appellant

and members of his class is necessary to

achieve the articulated state goal.” Jd.

at 632.

3 See Lassiter v. Northampton County Board of Elections, 360

US. 45 (1959), wherein the Court upheld a North Carolina literacy

test because it found a relationship between the test and the state’s

interest in promotion of the intelligent use of the ballot. See also

Breedlove v. Suttles, 302 U.S. 277 (1937), overruled by Harper v.

Virginia State Board of Elections, 383 US. 663 (1966); and Pope

». Williams, 193 U.S. 621 (1904).

4 See n. 1, supra. See generally, Developments in the Law —

Equal Protection, 82 Harv. L. Rev. 1065 (1969).

a

10

Dunn, which involved a Tennessee statute that required

an eligible voter to be a state resident for one year or a

county resident for 90 days, simply adopted, then, the

Kramer standards of “necessity” and of statutory “‘pre-

cision” for the questioned classification. Significantly,

Dunn also held that where fundamental rights are in-

volved, states should pursue less rather than more burden.

some ways of protecting the government interests involved.

It is against this exacting equal protection standard that

the California Supreme Court in this case measured that

State’s constitutional and legislative prohibitions authorizing

disenfranchising of former felons.

Petitioner, and the cases upon which she relies, argue

that restricting the right of former offenders to vote is

necessary, as it must be under Dunn, in order to maintain

the integrity of the electoral process. Apart from assertion

of the historic exclusion of felons from the franchise under

old “civil death” concepts, substantive justification seems t

turn on the reasonableness of the state’s judgment that

5 405 US. 330, 343 (1972). The Dunn Court in discussing les

restrictive alternatives, indicated that “Tennessee has at its disposal

a variety of criminal laws which are more than adequate to detect

and deter whatever fraud may be feared.” /d. at 353.

6 Fincher ». Scott, 352 FSupp. 117 (M.D.N.C, 1972) aff'd men

411 U.S. 961 (1973); Kronlund v, Honstein, 327 F Supp. 71 (ND.

Ga. 1971); Beacham v. Braterman, 300 F Supp. 182 (S.D. Fla.

1969), aff'd mem., 396 U.S. 12 (1969); Green v. Board of Election

of the City of New York, 380 F.2d 445 (2d Cir. 1967), cert. den,

389 U.S. 1048 (1968); all applying the “rational relationship” test

rather than the more exacting “necessary to a compelling interest”

test enunciated in Dunn v. Blumstein, supra, and Kramer v. Union

Free School District, supra.

—

11

perpetrators of serious offenses, given the heavy incidence

of recidivism and organized crime now prevalent, should

not be in the position to vote for public officials. Such

voting is said to be particularly harmful with respect to

officials such as legislators, judges, and prosecutors who

will make or enforce the very laws under which the ex-

felon’s subsequent crimes may be tried. See Green v.

Board of Elections, 380 F.2d 445 (1967), cert. den., 398

U.S. 1048 (1968).©° Furthermore, in the words of the Peti-

tioner, if former offenders were permitted to vote:

“| California would be in precisely the

position of allowing ex-felons to vote for

and conceivably be elected, if otherwise

qualified, to the office of legislator, sheriff,

district attorney, or judge. This situation

would be intolerable.” Petitioner's Brief

at 10.

This potential harm from ex-offender enfranchisement is

asserted because, under California legislation, a person can

run for and be elected to any office for which he is an

eligible voter. ”

Several presumptions are implicit in the foregoing asser-

tions. First is the presumption that former offenders as

a group make poor or illegally motivated voters, and, as

voters, would have a significant impact on the election

results for legislators, judges, and prosecutors; second, that

they are more likely candidates for commission of election

6.5 But see E. du Fresne and W. du Fresne, The Case for Allowing

“Convicted Mafiosi to Vote for Judges:” Beyond Green v. Board of Elec-

tions of New York City, 19 DePaul L. Rev. 112 (1969).

7 Cal. Govt. Code 8275 (West 1966).

ie =

12

fraud offenses; and, third, that released offenders, if elected

to office, would make untrustworthy public servants. As

to the last, the question of disqualification of former felons

to hold public office is an issue distinct from the voting

rights question presented in this case. The State of Cali-

fornia is not without means to provide separate standards

and eligibility requirements as to the rights of ex-offenders

to hold public office. While these too may be called to

pass Constitutional muster, it is quite possible that dif-

ferent standards, methods, and results would emerge in

balancing state and citizen interests.

As to the other justifications, no empirical evidence has

been shown, nor indeed can it be, that “‘catch alls” em-

bracing the wide variety of offender types and behaviors

embraced in “felon” or “infamous crime” classifications

are necessary or, indeed, reasonably calculated to forestall

against the propensity of some offenders to abuse the

franchise or recidivate to illegal acts which undermine the

governmental process. Although these concerns seem to

pertain to protection of thg “purity of the ballot box,”

the 9th Circuit in Dillenburg v. Kramer, 469 F.2d 1222,

1224-25 (1972), has, like the Supreme Court of California,

expressed its difficulty in discerning the nature of the in-

terest served:

“, . « Search for modern reasons to sustain the

old governmental disenfranchisement prerogative

has usually ended with a general pronouncement

that a state has an interest in preventing persons

who have been convicted of serious crimes from

participating in the electoral process (e.g., Green

v. Board of Elections of City of New York (2d

Cir. 1967) 380 F.2d 445, 451, cert. denied,

389 U.S. 1048, 88 S.Ct. 768, 19 L.Bd.2d 840)

¥

13

or a quasi-metaphysical invocation that the

interest is preservation of the “purity of the

ballot box”. (£g., Washington v. State

(1884) 75 Ala. 582, the venerable sire of

abundant progeny; cf. Kronlund v. Honstein

(N.D. Ga. 1971) 327 F.Supp. 71, 73.)

“Few decisions have penetrated the disen-

franchisement classification to ascertain

whether the offenses that restrict or destroy

voting rights have anything ‘to do with the

integrity of the electoral process or whether

there is any constitutionally valid distinction

between the class of offenses that disen-

franchise and the class of offenses that do

not. When the facade of the classification

has been pierced, the disenfranchising laws

have fared ill. (Eg., Stephens v. Yeomans,

D.N.J. 3-judge court 1970) 327 F.Supp.

1182; Otsuka v. Hite, (1966) 64 Cal. 2d

596, 51 Cal. Rptr. 284, 414 P.2d 412).”

Nor is it Respondent's burden to rebut these presumptions.

This Court, in dealing with statutory presumptions in the

past, has indicated that governmental authority imposing

the presumption must establish its validity by showing

that “the presumed fact is more likely to flow from the

proved fact on which it is made to depend”. Leary vy.

United States, 395 U.S. 6, 36 (1969). Yet, Petitioner

has failed to establish, by empirical proof or otherwise,

any rational connection between the fact of felony convic-

tion and commission of election fraud or other crimes

destructive of the governmental process. Rather, the pre-

sumption that former felons will be likely candidates for

14

election offenses punishes the ex-offender in advance,

without credible evidence to support such probability.

Further, even assuming that a correlation between con-

viction and election crimes could be shown, states have

at their disposal “less drastic means” than disenfranchise-

ment of all felons to protect their interests. Virtually

every state has a variety of criminal statutes dealing with

election code offenses. As the California Supreme Court

has stated in this case, “the voting and counting process

is now thoroughly hemmed in by control mechanisms at

every stage so that deliberate irregularities, if present to-

day, are rare and have negligible effects on election re-

sults...” Ramirez v. Brown, 9 Cal.3d 199, 215 (1973).

The California Court also observed:

“In sum, it may have been feasible in 1850

to influence the outcome of an election by

rounding up the impecunious and the thirsty,

furnishing them with free liquor, premarked

ballots, and transportation to the polls; to do

so in 1973, if possible at all, would require the

coordinated skills of a vast squad of computer

technicians.” Jd. at 214.

Finally, the proffered explanations for disenfranchisement

fail to account for (i) the absence of former felon disen-

franchisement provisions in many states, (ii) the ability

of states to impose as severe and comprehensive a set

of criminal snactions as may be desired to protect

against damage to or corruption of the electoral or

political process, and (iii) the existence in several states

of election code provisions, which are misdemeanors

Me

1S

and which do not impose the consequence of disenfran-

chisement.*® These alternatives, already employed by

states no less concerned than California with safeguarding

their electoral processes, suggest that viable and less drastic

means do indeed exist for protecting state interests.

The classification involved in the instant case is devoid

of relationship to the crime or public dangers protected

against. Neither is it based on any qualities of the of-

fender; rather, “it rests solely on the nature of the

punishment that can be given for an offense”. Dillenburg

», Kramer, supra, at 1225. Therefore, it cannot be said

that the state has tailored its classification with sufficient

precision to meet the exacting standard of the Equal Pro-

tection Clause. Just as “wealth, like race, creed or color,

is not germane to one’s ability to participate intelligently

in the electoral process”, Harper v. Virginia Board of Elec-

tions, 383 U.S. 663, 667 (1966), neither can the fact of

prior felony conviction, standing alone, be justified as a

total bar to the exercise of this most fundamental right.

g.

8 See, eg., Wash. Rev. Code §29.85.050 (fraudulently misleading

voters in marking ballots); Wash. Rev. Code §29.85.060 (voter coer-

cion by election official); Wash. Rev. Code §29.85.020 (tampering

with ballots by election officer), cited in Dillenburg v. Kramer, 469

F.2d 1222, n. 6 (1972). Indeed, this is true in California itself

where “. . . at least 60 additional acts are punished as misdemeanors

in 40 separate sections.” Ramirez v. Brown, supra at 215.

16

ll. SECTION 2 OF THE FOURTEENTH AMENDMENT IS

NOT AN INDEPENDENT GRANT OF AUTHORITY

TO STATES TO DISENFRANCHISE FORMER OF.

FENDERS

Although a blanket prohibition on voting by ex-offenders

should fail under the Equal Protection Clause, both the

Petitioner and the State of California argue that Sec-

tion 2 of the Fourteenth Amendment expressly reserves

to states the power to withhold the franchise from former

offenders. Section 2 provides in pertinent part:

“, . . But when the right to vote is denied

to any of the male inhabitants of such State,

being twenty-one years of age, and citizens

of the United States, or any way abridged,

except for participation in rebellion, or other

crime, the basis of representation therein

shall be reduced . . .” (Emphasis added)

A. Neither the language of Section 2 nor its

legislative history support the view that it was

meant to establish a discrimination not suscepti-

ble to equal protection scrutiny

The proviso “except for participation in rebellion, or

other crime” is part of a general penalty clause and must

be read in that context. Section 2 penalizes, by reduced

representation in the House of Representatives, states which

deny the: vote to eligible persons, It also provides that

states which deny the vote to persons who have participated

9 Petitioner's Brief at 20.

10 Brief of State of California as Amicus Curiae at 13.

17

in “rebellion, or other crime” will not be so penalized.

Only by reading into Section 2 an intent not evident

from the words themselves may one conclude that states

are affirmatively authorized to exclude former offenders

from exercising the franchise.

To accord the phrase “or other crime” the meaning

ascribed by Petitioner would suggest that states might

deny the vote to individuals convicted of such misdemean-

ors as traffic offenses, trespass and littering ordinances,

minor vandalism and similar infractions. (Unlike the Fifth

Amendment reference to “infamous crimes”, the Section

2 reference to “other crime” is not in any way limited.) "'

Such reasoning, of course, would produce an overbroad and

irrational result. This result can be avoided but it makes

clear the need to go beyond a literal reading of the “other

crime” phraseology as an affirmative authorization.

Even if this Court were to conclude that Section 2 is an

affirmative grant of authority to exclude criminals from

the franchise, rather than an exception from a penalty

provision, the issue of extent and duration of such disen-

franchisement would remain. Where different sections of

a constitutional provision are enacted contemporaneously,

as with Sections 1 and 2 of the Fourteenth Amendment,

the favored course is to interpret such provisions so that

they may be-read together harmoniously and without giv-

ing such force to one that it excludes the other. In

the instant case, such a reading is not only possible, but

it produces, in the view of amicus, a more logical and

1] Black's Law Dictionary 444 (4th ed. 1951). In technical usage,

the general term “crime” includes misdemeanors.

1216 Am. Jur.2d Constitutional Law 66, 67, 76 (1964) and

cases cited therein.

Constitutionally secure result. This course was followed

in Stephens v. Yeomans, 327 F.Supp. 1182 (D.N.J. 1970),

There the court found (at p. 1186):

“.. . [The phrase “participation in rebellion or

other crime] is an express exception or proviso in

section 2, which in its general terms imposes a

penalty on those states which disenfranchised for

reasons other than rebellion or crime. Since it is

now clear that the entire section 2 imposes no

limitation on section 1, it can hardly be argued

that the exception or proviso in section 2 was in-

tended to impose such a limitation. We

conclude, therefore, that the New Jersey

statute which disenfranchises plaintiff

must be judged by the exacting equal

protection standards laid down by the

Supreme Court in the voter disqualifica-

tion cases referred to hereinabove.”

Put to that test, disenfranchisement of persons guilty of

minor violations, or the continuance of a valid disenfran-

chisement beyond the full term of a felon’s sentence,

should fail. It is difficult to regard this as anything but

an unnecessarily drastic means of protecting a compelling

state interest, even under the old “rational relationship”

test.

The full intent of Section 2 is not revealed from its

language and resort to legislative history is therefore neces-

sary. The historical record on enactment of the Fourteenth

Amendment shows that early drafts of Section 2 contained

no language concerning exceptions to the penalty for a

state’s disenfranchisement of qualified voters. Such drafts

19

initially imposed the penalty only with respect to denial

of the vote on grounds of race or color. When the Amend-

ment was later broadened to impose the penalty on states

which abridged the franchise on any grounds, the exception

relating to participation in rebellion was added. Nowhere

is there clear indication of what the words “or other

crime” were to mean. Indeed, theyonly indicator is the

common practice at the time, by the drafters and others,

to equate “crime” with misconduct which might reasonably

be expected of Confederates in the wake of defeat by the

North. This explains why the phrase “or other crime”

follows close on the heels of the word “rebellion.”

“Furthermore, the crucial words ‘or other crimes’

are utterly devoid of independent legislative in-

tent, and take on historical meaning only as part

of the phrase ‘participation in rebellion, or other

crime.’ Proposed § 2 (H.R. 51, 39th Cong.,

Sess. (1866)) was sent to a Joint Committee with

the phrase ‘participation in rebellion." CONG. —

GLOBE, 39th Cong., Ist Sess. 1289 (1866). It

is clear that the thrust of this language was to

limit governmental activity ‘by former rebels.

See H.R. Rep. 30, 39th Cong., Ist Sess. 14,

15 (1866). ‘The final version of the bill (H.R.

127, 39th Cong., Ist Sess. (1866)), however,

was reported out six weeks later with the lan-

guage ‘or other crime’ tacked on. There is

no apparent legislative intent for this addition,

and it makes sense only as giving the states a

broader weapon to use against former Confed-

erates.” 9

13 Note, Restoring the Ex-Offender's Right to Vote: Background

and Developments, 11 Am. Cr. L. Rev. 720, 746 n. 158 (1973).

20

It seems, therefore, that the operative intent, if any, in

use of the phrase “other crime” was to validate disenfran-

chisement of Confederate officials and sympathizers for a

variety of offenses and outlawed political activities related

to the rebellion, ie. violations which the phrase “partici-

pation in rebellion” might not technically encompass. An

interpretation of this kind would comport with the recog-

nized “ejusdim generis” concept under which general

words and phrases (“or other crime”) following words of

specific meaning (“rebellion”) are not construed in their

widest extent but rather within the same general class or

category as the specific reference.

B. Prior judicial interpretations of the effect of sec-

tion 2 on offender voting restrictions were not

well reasoned, are distinguishable from this case,

and should not be deemed binding.

The assertion that Section 2 may be read to exclude

former offenders from the right to vote is not without

precedent. The cases on which Petitioner relies generally

support this interpretation and two of them have been

affirmed by this Court in response to its obligatory appel-

late jurisdiction.“ Fincher v. Scott, 352 F.Supp. 117

(M.D.N.C, 1972), aff'd mem., 411 U.S. 961 (1973), and

Beacham v. Braterman, 300 F.Supp. 182 (S.D. Ga. 1969),

aff'd mem., 396 U.S. 12 (1969).

14 «4 summary affirmance without opinion in a case within the

Supreme Court's obligatory appellate jurisdiction has very little pre-

cedential significance. (Frankfurter & Landis, ‘The Business of the

Supreme Court at October Term 1929’ (1930) 44 Harv.L.Rev. 1, 14.

See also Serrano v. Priest (1971) 5 Cal.3d 584, 616-617, 96 Cal.Rptr.

601, 624, 487 P.2d 1241.)” Dillenburg v. Kramer, supra at 1225.

21

In Fincher, North Carolina's constitutional and statutory

disenfranchising prisoners were upheld. The

lower court found that Section 1 of the Fourteenth Amend-

ment must be read in light of Section 2 which “expressly

allows the exclusion of felons from the franchise.” See

also, Green v. Board of Elections, supra, and Beacham v.

Braterman, supra.

However, well reasoned and contrary authority exists,

whose analysis of current equal protection standards and

the realities of ex-felon/electoral system relationships have

not been adequately answered. See the decision of the

California Supreme Court in this case, Ramirez v. Brown,

supra; Stephens v. Yeomans, 327 F.Supp. 1182 (D.N.J.

1970); Dillenburg v. Kramer, supra.

Initially, it should be noted that neither Fincher or Beach-

am, nor Green (which appears to be the intellectual well-

spring of the other cases) received plenary consideration by

this Court. Thus, they may be regarded as having “‘little

precedential significance,” Dillenburg v. Kramer, supra at

1225. Further, none of these cases, as well as others re-

lied on by Petitioner, is as broad as Petitioner asserts.

Fincher dealt only with the right to vote of an incarcer-

ated felon, 5 whereas the present case involves the voting

tights of persons who have completed their sentence,

whether on probation or in confinement and subsequently

on parole. Insofar as it examined disenfranchisement di-

rectly, rather than the more extensively discussed pardon

power of the Florida Governor, Beacham cited and relied

1S Jurisdictional Statement, Fincher ¥. Scott, supra at 6, 7, 18,

20. Conversation with Norman B. Smith, counsel for Fincher, De-

cember 17, 1973.

ay

only on Green. Similarly, Green is distinguishable from

the instant case. First, and most significantly, it relied

on the rational relationship test which no longer suffices

to justify voting restrictions imposed on special classes

or groups of citizens. Further, the precise question be-

fore the Second Circuit was procedural, concerning the

criteria for convening a three-judge court to determine

the constitutionality of certain New York disenfranchise-

ment statutes. Moreover, the plaintiff in Green had been

convicted of the type of offense which, a century earlier,

would have been characterized as rebellious or seditious

behavior under Section 2.

Beyond these differences, examination reveals that the

lower court opinions in these cases offer little analysis as

to why their reading of Section 2 was proper. Indeed,

such analysis reveals that there are alternative readings

which achieve a fair and just result, and which comport

with the rules of Constitutional construction.

In Fincher v. Scott, supra, the cursory treatment accord

ed Section 2 may be laid to that Court’s willingness to

accept, at face value, the meaning given to the proviso

“except for participation in rebellion, or other crime”

almost ninety-nine years earlier in United States v. An-

thony, 24 Fed. Cas. No. 14,459, p. 829 (C.C.N.D.N.Y.

1873) (criminal proceeding involving the defense of an

asserted Constitutional right to vote for women citizens).

However, in Anthony, the court discussed the meaning of

Section 2 in even more summary fashion than Fincher,

using it only to demonstrate that the Section assumed the

right of states to deny the vote to certain classes of citi-

zens:

22

23

“This view is assumed in the second section of

the fourteenth amendment which enacts, that, if

the right to vote for federal officers is denied by

any state to any of the male inhabitants of such

state, except for crime, the basis of representa-

tion of such state shall be reduced in a propor-

tion specified. Not only does this section assume

that the right of male inhabitants to vote was

the especial object of its protection, but it as-

sumes and admits the right of a state notwith-

standing the existence of that clause under

which the defendant claims to the contrary, to

deny to classes or portions of the male inhabi-

tants the right to vote which is allowed to other

male inhabitants. The regulation of the suffrage

is thereby conceded to the states as a state’s

right.” United States v, Anthony, supra at

831. (Emphasis added)

Likewise, in Green v. Board of Elections, supra, analysis

of Section 2 is absent.

In sum, the exact meaning of the proviso in question

has never been considered by the courts which purported

to construe its meaning. Rather, the exclusionary interpre-

tation was assumed without the scrutiny of legislative his-

tory and contextual significance merited by an issue of

this magnitude.

24

Ill. ACTIONS TAKEN BY THOSE CONCERNED WITH

CRIMINAL JUSTICE, RECENT STATE LEGISLATIVE

ACTIVITY, AND POSITIONS ADOPTED BY GROUPS

The Constitution is a living document that, historically,

has enabled this Court to maintain a proper balance be-

tween fundamental changes in our society and its institu-

tions, and traditional legal concepts. Nowhere has this

flexibility been more consistently demonstrated than in

the context of voting rights.

“. . . the Equal Protection Clause is not

shackled to the political theory of a particu-

lar era. In determining what lines are un-

constitutionally discriminatory, we have

never been confined to historic notions of

equality . . . Notions of what constitutes

equal treatment for purposes of the Equal

Protection clause do change.” Harper y.

Virginia Board of Elections, supra at 669.

Thus, when faced with state classifications that seek to

disenfranchise selected groups of citizens, it becomes cru-

cial that this Court examine the rationale behind the ex- _

clusion, and whether the rationale retains validity in modem

society.

In its origins, penology stressed the need to impose severe

physical penalties on lawbreakers. Severe penalties were

deemed necessary for society to achieve retribution for

the wrongful act and to deter others from committing

25

gmilat offenses." So also was the imposition of various

civil disabilities, collectively known as “civil death” pro-

visions, thought to be an effective means of punishment.

These theories of crime and punishment were carried

over to this country with the colonists, and although our

Constitution prohibited certain of the more drastic penalties

for commission of crime, '” the penalty of “civil death”

persisted. The penal philosophy which gave life to such

onerous sanctions remained virtually unchallenged until the

last half of the nineteenth century when a meeting of the

National Congress on Penitentiary and Reformatory Disci-

pline (now the American Correctional Association) adopted

an historic Declaration of Principles. It was asserted among

other things that:

“The supreme aim of prison discipline is the

reformation of criminals, not the infliction of

they had to be widely observed, the only limiting factor being the

— Babington, The Power to Silence, 164

|

17 See, Art. Ill, 83 of the United States Constitution (specifically

prohibiting forfeiture and corruption of blood except during the life

of a person convicted of treason), and the Eighth Amendment (pro-

hibiting infliction of punishments which are “cruel and unusual'*).

18 are. III of the Declaration of Principles (1870), reprinted Ameri-

can Bar Association and Council of State Governments, Compendium

of Model Correctional Legislation and Standards, X65 (1972).

26

Gradually, increasingly numbers of experts and admin-

istrators in the field of corrections have embraced this

policy as the most promising means of dealing with crime

and reducing recidivism. Today such acceptance is

almost universal. The underlying philosophy has also

been endorsed by the nation’s highest elected officials:

“Locking a convict up is not enough. We must

also offer him the keys of education, of re-

habilitation, of useful training, of hope — the

keys he must have to open the gates to a life

of freedom and dignity.” ”

The emphasis of our nation’s correctional programs like

wise reflects the view that, while punishment may be a

necessary evil of the correctional process, the goal of re-

habilitation of offenders should be paramount. The wide

range of programs and methods of treatment now flour

ishing either within, or as an adjunct to, the correctional

process, bears witness to this view. Although problems

of implementation and inadequate resources are quite real,

vocational training, counselling, and treatment for alcohol

and drug addiction are today considered an integral part

of the prison regimen. Similarly, increased reliance on

community correctional programs such as halfway houses,

work release programs and probation and parole signals a

19 « ‘The ultimate goal of corrections under any theory is

to make the community safer by reducing the incidence of crime.

Rehabilitation of offenders to prevent their return to crime is in

general the most promising way to achieve this end.” President's

Commission on Law Enforcement and Administration of Justice,

Task Force Report: Corrections, 16 (1967).

20 Remarks of President Richard M. Nixon, First National Con-

ference on Corrections, Williamsburg, Va., December 6, 1971.

27

dramatic departure from past willingness to segregate even

harmless offenders from society-at-large. 7" There have been

similar conclusion:

“Loss of citizenship rights — the right to vote,

hold public office, and serve on juries — inhibits

reformative efforts. If corrections is to reinte-

grate an offender into free society, the offender

must retain all attributes of citizenship. In addi-

tion, his respect for law and the legal system

may well depend, in some measure, on his ability

to participate in that system. Mandatory denials

of that participation serve no legitimate public

interest.” Report on Corrections, 593 (1973).

28

Other groups intrinsically concerned with electoral and

‘governmental processes, such as the National Democratic

Party? and the California League of Women Voters, 3

have specifically adopted as policy the position that re

strictions on the right to vote of former offenders

should be abolished. The President's Commission on

Law Enforcement and Administration of Justice was no

less explicit in its 1967 appeal for restoration of the fran.

chise to former offenders.

“There seems to be no justification for per-

manently depriving all convicted felons of

the vote, as the laws in most states provide.

The convicted person may have no strong

personal interest in voting, but to be de-

prived of the right to representation in a

democratic society is an important symbol.

Moreover, rehabilitation might be furthered

by encouraging convicted persons to par-

ticipate in society by exercising the vote,” 24

Further, various model acts and suggested legislation pro-

pose abolition of restrictions on ex-offenders’ voting rights.

The American Bar Association has approved legislation de-

veloped by the National Conference of Commissioners on

Uniform State Laws which would restore an offender's

22 In its Party Platform: 1972, the Democratic Party endorsed

“. + « restoration of civil rights to ex-convicts after completion of

their sentences, including the right to vote.”

23. . . the right to vote should be restored to ex-felons,”* Cal

ifornia League of Women Voters, Policy Statement, February 16,

1972. ;

24 President's Commission on Law Enforcement and Administre.

tion of Justice, Task Force Report: Corrections, 90 (1967).

29

right to vote upon his discharge from sentence or if placed

on probation or parole. Uniform Act on the Status of Con-

yicted Persons, $2, 3 (1965). A similar position was in-

corporated by the American Law Institute in the Model

Penal Code:

“8306.3 Notwithstanding any other provision

of law, a person who is convicted of a crime

shall be disqualified (1) from voting in a pri-

mary or election if and only so long as he is

committed under a sentence of imprisonment.”

Legislatures in a growing number of states have recognized

the wisdom of this view and have been moving to elimi-

nate voting restrictions placed on ex-felons. Four states—

Arkansas, Maine, Michigan, and Tennessee—now have no

restrictions while others provide for automatic restoration

of voting rights. Such actions reflect a trend that is

unmistakable.

25 See Appendix A of this brief for state law disenfranchisement

provisions. See Appendix B of this brief for provisions respecting

re-enfranchisement. Nineteen states automatically restore civil rights

upon termination of imprisonment, parole or probation while five

more states and the District of Columbia restore rights after a fixed

period of time. Restoring the Ex-Offender’s Right to Vote: Back-

ground and Development, 11 Am. Crim. L. Rev. 721, 758 and

n. 215, et seq. California’s procedure (Petitioner's brief at pp. 21-

24 and Appendix A thereof) is more cumbersome, requiring an appli-

cation, a judicial proceeding, and a discretionary determination based

on no more explicit standard than “rehabilitation and fitness to ex-

ercise all of the civil and political rights of citizenship.”

26 The National Advisory Commission on Criminal Justice Stan-

dards and Goals has called for all states to enact by 1975 legislation

removing all mandatory restrictions on ex-offender civil and political

tights, including the right to vote and hold public office. Report on

Corrections, Standard 16.17 (1973).

30

The purpose of corrections has shifted from one of

thoughtless retaliation to that of attempting to prepare

the offender for lawful participation in society. How-

ever, at the same time that millions of dollars are being spent

to implement this program, with unprecedented commit-

ment of federal, state, and local resources to that end,

laws grounded in the antiquities of penology conflict with

today’s goals of rehabilitation and reintegration. If the

strength of democratic government is truly drawn from

its collective citizenry, surely those who have endured its

sanctions deserve also to participate in its most valued

entitlements. As de Tocqueville once noted:

“There is no more invariable rule in the his-

tory of society: the further electoral rights

are extended the greater is the need for ex-

tending them; for after each concession the

strength of democracy increases, and its de-

mands increase with its strength.” Democracy

in America, 57 (Knopf 1956).

————

31

CONCLUSION

For the above reasons, the American Bar Association

respectfully urges this Court to affirm the decision of

the Supreme Court of California.

Respectfully submitted,

CERTIFICATE OF SERVICE

I, Chesterfield Smith, attorney for amicus, hereby certify

that 3 copies of this brief were duly served upon attorneys

for both parties by mail service, postage pre-paid.

Chesterfield Smith

.

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THe AMERICAN CriminaL Law REVIEW

TABLE II

STATE PROVISIONS FoR RESTORATION OF VoTING RIGHTS

Restorinc RiGcut To VOTE

Restoring Rickt To VOTE

Se

40

766 THE AMLRICAN Criminal Law Review {Vol. 11:72)

NOoTEs TO TABLES

713 ALaska Const. art. V, § 2 (felonies involving moral turpitude); ALAasxa Srar. iN

15.05.030 (1971): Aniz. Consr. art. VIL. § 2; Anu. Rev, Stat. ANN. $$ 16-101, 16-92)

(Supp. 1972-1973); Ark. Cosy. amend. 8, art. 3, § 1 (enabling provision); 16-150,

Conn, Gen, Stat. ANN. § 9-46 (1967) (except the crime of non-support); Dev. Const.

art. V, $ 2 (accompanied by an enabling clause which permits the General Assembly io

@isenfranchixe as punishment for crime); D.C. Cone ANN, $ 1-1102 (Supp. 1973);

Pia. Const. art. VI. § 4; Pia. Stat. ANN. § 97.041 (Supp. 1973); Hawan Consr. ant,

H, § 2 (Supp. 1971); Hawan Rev. Srar. § 716-2 (Supp. 1971); Toano Const. art.

VI, $ 3 (Supp. 1972): foano Cone § 34-403 (Supp. 1972); Int. Const. art. 3, § 2:

IN. Stat. ANN. § 29-5964 (1964 Replacement); Kan. Const. art. 5, $2; Ky. Consr. 5

145; La. Const. art. VII, $ 1; La. Consr. art. VIII, § 6: La. Rev. Star. tit. 15. § 572)

(Supp. 1971); Minn. Const. art. 7, § 2; Mo. Const. art. 8 3 2; Mo. Rev. Star. §

111.021 (Supp. 1973); Mo. Rev. Srar. $ 113.040 (1966); Monr. Const. art. IX, § 2;

Mont. Rev. Cove § 23-2701 (Supp. 1971); Nes. Const. art. VI, $ 2; Nes. Rev. Srar,

§ 29-112 (1964): Nev. Const. art. I. § 1; N.M. Consr. art. VII, § 1; NM. Srar,

ANN. § 40A~29-14 (1964); N.Y. Evecrion Law $$ 152, 462 (McKinney Supp. 1972.

1973); N.C. Const. art. Vi, $ 2(3):; N.D. Const. art. Vv. $ 127; N.D. Cent. Cone §

16-01-04 (1971 Replacement); Ono Rev. Cont ANN, § 2961.01 (1954): Oxia. Const,

art. TI, $1 (“subject to such exceptions as the legislature may prescribe"); S.D. Coxst,

art. VII, § 8; Tex. Cons. art. 6. § 1; Tex. Evectrion Cone art. 5.01 (1967 rev. ed.);

Va. Const, art. Il, $ 1; Va. Cope ANN. § 24.1-42 (Supp. 1972); W. Va. Const. art.

IV, $ 1; W. Va. Cope Ann. § 3-1-13 (1971); Wiese. Consr. art. TIT, $ 2; Wise. Stat;

ANN. § 6.03 (1967); Wyo. Strat. § 6-4 (1959). Ue

6 Ata. Const. § 182; Ata. Cove tit. 17. § 15 (1958); Cat. Const. art..11, § t:

bigamy, living

+.» @Ry person

Cook. tit. 17, § 15 (198) (same in substance jon); Car.

embezzlement, misappropriation of public money); Cat. Const. ant.

perjury, forgery, malfeasance in

$ 228, 232 (1970) (duelling); Conn,

high misdemeanors as

Rev. Stat. § 432.350 (1969) (state official

who receives a bribe); Ky. Rev. Svar. § 436.230 (1969) (bribery); Mp. Rev, Stat. ANN,

art. 33, § 3-4, as amended ch. 667 (Laws of M

41

1973) __Restoainoe Richt To VoTE 767

§ 559.470 (1953) (murder and other felonies involving physi-

cal assault): 1973) (“any person who shall be convicted

of arson, burglary,

colt, filly, mu

designate”); N.Y. Const. art. If,

: RL. Const. amend. 24, $ 4 (bribery); S.C. Const. art.

obtaining goods or money under false

61 (1962) (dueling); Tex. _ art. 16, § 2 (“bribery. perjury. b

"): Wis. CONST. art. III, § 6 (bribery, larceny); Wes. Stat. Ann, § 6.03

(1967) (bribery). .

21? Ata. Const. $ 182; Ata. Cove tit. 17, § 15 (1958); Dev. Const. art. V, § 7; Det.

Cone Ann. tit, 15, § 1701 (Non-cum. Supp. 1972); Toano Const. art. VI, § 3 (Supp.

: Inano Cove § 34-403 (Supp. 1972): Tu. ANN. Stat. ch. 46, § 29A—S (CSmith-

Hurd Supp. 1972) (if sentenced to penitentiary); IND. Stat.

29-5965 (1969 Replacement): Iowa Cone § 51.16 (1949); Ky. Const. § 145: Ky. Rev.

. $8 124.180, 124.190, 160.991 (1971); Me. Const, art. IX (enabling provision);

Mp. Rev. Stat. ANN, art. 33 §$ 3-4, as amended, ch. 667, (Laws of Md. of 1972); Mass.

Const. amend. art. Hl; Mass. Gen, Laws ch. 51, § I (Supp. 1973); Mass. Gen. Laws

ch. 55, $37 (1958); Mo. Const, art. 8, $ 2; Mo. Rev. Stat. $ 111.021 (Supp. 1973);

Mo. Rev. Srar. $$ 113.040, 129.420. 129.490, 129.500, 129.920 (1966); N.H. Const.

pt. I, art. 11; N.Y. Erection Law § 152 (McKinney Supp. 1972-1973); N.D. Cent.

Cons § 12-11-06 (1960): Pa. Const. art. VII, § 7 (only disenfranchises for the election

in which crime committed); Pa. Star. Ann. tit, 25, § 3552 (1963) (only disenfranchises

for four years); S.C. Const. art. Il, § 6; S.C. Cone Ann. § 23-62 (Supp. 1971); Utan

Const. art. TV, § 6 Vr. Constr. ch. Il, § Si: W. Va. Const. art. IV, § 1; W.-

Va. Cone ANN. § 31-13 (1971); Wes. Const. art. ITI, § 6 (enabling provision); Wis.

Stat. Ann. § 6.03 (1967).

220 Acasxa Stat. § 11.05.070 (1970); Aniz. Rev. Stat. ANN. $ 13-1653; Car. Pena

Coos § 2600 (1970); Coro. Const. art. VII, § 10; Coro. Rev. Stat. Ann, § 49-3-2

(Perm. Cum. Supp. 1971); Dex. Cone Ann. tit. 11, § 4347 (Supp. 1970); Fra. Stat.

Ann. § 97.041 (Supp. 1973): lun. Const. art. 3, § 2; Ino. Stat. Ann. § 29-4804 (1969

Replacement): Ky. Const. $ 145; La. Const. art. VII, § 6; La. Rev. Sra. tit. 18,

#8 42, 270.210 (1969); Mucn. Const. art. II. $ 2; Mo. Const.art. 8, § 2; Mo. Rev. Star.

$ 111.021 (Supp. 1973); Mo. Rev, Srat, § 113.040 (1966); Mo. Rev. Strat. § 222.010

(1962); N.H. Rev. Star. 607-A (Supp. 1972); NJ. Rev. Stat. Ann, $ 19:4-1 (Supp.

1972-1973); Oxta. Srar. ANN, tit. 21, § 65 (1968); One. Rev. Stat. § 137.240 (1969

Replacement); S.D. Coos § 23-48-35 (1967); Uta Cone ANN. $ 76-1-36 (1953).

1 Arasxa Stat. $ 15.05.030 (1971); Ga. Const. § 2-801; Int. Stat. Ann. ch. 46

$ 3-5 (Smith-Hurd Supp. 1972): Kan. Stat. Ann. § 21-4615 (Supp. 1972); La. Const.

art. VIL, § 1; La. Rev. Svat. § 18: 42 (1969); La Rev. Strat. § 18: 270.210

(Supp. 1972); Mo. Rev. Srat. § 560.610 (Supp. 1973): N.C. Gen. Srat. § 163-55

(1972); One. Const. art. TI, § 3; R.1. Gen. Laws Ann. § 13-6-2 (1969) Reenactment ).

Ata Const. § 182; Ata. Cove tit. 17, § 15 (1958); Ani. Const, art. VII, § 2;

Anz. Rev, Stat. ANN, $ 16-101 (Supp. 1972-1973); Ga. Const. § 2-801; Tpano Const.

art. VI, $3 (Supp. 1972): loawo Cooe § 34-403 (Supp. 1972); Kan. Const. art. 5, §

42

768 THe AMERICAN CRIMINAL Law REVIEW (Vol. 11:72

2; Ky. Consr. § 145; Mien. Consr, art. 7, $2; New. Const. art. VI; Nev. Consr. an.

Tl, § 1; N.H. Const. pt. 1, art. 11; N.D. Const. art. V, § 127; ND. Cent. Cove § 16.

01-04 (1971 Replacement); S.D. Const. art. Vil, § 8; Uran Consr. art. IV, § 6: W.

Va. Const, art. IV, § 1; W. Va. Cove Ann. § 3-1-1213 (1971); Wis. Consr. art. ii, ¢

2; Wis. Srav. Ann. § 6.03 (1967).

1971); Fa. Stat. ANN, § 940.08

tence or after having been granted

Hawan Rev. Srar. § 716-5 (Supp.

release from confinement); Nes. Rev. Sra. § 29-112.01 (1964

judgment when sentence is other than confinement); Nes. Rev. Star. § 29-2264 (Cum.

(Supp. 1972) (upon “discharge after completion of service of his sentence or after

service under probation or parole"); NJ. Rev. Stat. Ann. § 19:4-1 (Supp. 1972-1973)

discharge); 51 Or. W. Va. Att'y Gen. 182 (1965) (construing W. Va. Const. IV, § 1

Rot to prohibit a convicted person from voting after completion of sentence); Wis. Stat.

Ann. § 57.078 (Supp. 1972-1973) (by serving out term of imprisonment or otherwise

satisfying the judgment against him); Wvo. Stat. Ann. § 7-311 (1957) (certificate of

discharge restores all rights).

43

1973} Restorino Ricut To VOTE 769

Det. Const. art. V, § 7; Det. Cone ANN, tit. 15, § 1701 (Supp. 1970) (10 years

after conviction and sentence for election crimes); lowa Cove § $1.16 (1949) (judges

and clerks convicted of election offenses are disenfranchised years); Ky, Rev.

Srar. $$ 160.991, 432.350 (1971); Mo. Riv. Star. $ 129.920 (1966) (10 year disen-

franchisement for “corrupt registration” of voters).

#8 Avasxa Const. art. 11, § 21; AvasKa Stat. $ 33.20.070 (1971); Ariz. Const. art.

V, $ 5; Aniz. Rev. Star. ANN. § 34-443 (1956); An. Const. art. 6. § 18; Ark. Start. ANN.

$ 12-300(m) (1968); Can. Const. art. V, $ 8 (no pardon may be granted to anyone

twice convicted of a felony except on recommendation of California Supreme Court,

four judges concurring); Cat. Penat Cone $8 4852.17, 4853 (West 1970); Coro. Const.

art. IV, $8; Dew. Const, art. VU, $1 (upon recommendation of Board of Pardons);

Fa. Const. art. 4, § 8 (1968 Revision) (with approval of three members of cabinet);

Fa. Stat. ANN. § 940.01 (Supp. 1973) (with approval of three members of cabinet);

Hawan Const, art. IV, § 5 (Supp. 1971); Ipano Cove § 20-240 (Supp. 1972); Int.

Srat. ANN. ch. 108, § 49 (1952); IND. Const. art. V, $ 17; lowa Const. art. 4, § 16;

Jowa Cove ANN, § 248.12 (1969); Kan. Const. art. 1, $ 7; Kan, Svat. ANN. § 22-3701

(Supp. 1972); Ky. Const. $$ 77, 145; La. Const. art. 5, § 10 (upon written recom-

mendation of lieutenant governor. attorney general, or presiding judge of court of coa-

_ yietion; written recommendation requirement waived for first felony offenders); Me.

Const. art. V, $ 11 (“with the advice and consent of the Council. . . .”); Mo. Const.

art. Il, $ 20; Mo. Rev. Stat. ANN, art. 41, § 118 (1971); Mo. Rev. Stat. ANN. art. 33,

3-4, as amended, ch. 667 Laws of Md. of 1972; Mass. Const. pt. 2, ch. 2, § 1, art. 7

(with advice of council; general court may prescribe pardon terms in felony cases);

. Mass. Gen. Laws ch. 127, § 152 (Supp. 1973) (public hearing required in felony cases);

Micu. Const. art. V, § 14; Munn. Const. art. V, § 4 (in conjunction with Board of

Pardons); Mo, Const. art. 4, § 7; Mo. Rev. Stat. § 222.030 (1962); Mo. Rev. Stat.

§ 560.610 (Supp. 1973); Mont. Consr. art. VII. § 9 (advised by Board of Pardons);

Nev. Const. art. V, § 13; Nev. Const. art V, § 14 (in conjunction with Attorney Gen-

eral and justices of Supreme Court); NJ. Rev. Stat. ANN. § 2A:167-S (1971); N.M.

Const. art. V, $ 6; N.M. Stat. ANN. §§ 40A-29-14, 21 (1964); N.Y. Const. art. 4,

§ 4; N.C. Const. art. III, § 5(6); N.D. Const. art. HT, $ 76 (in conjunction with Board

of Pardon); Onto Const. art. III, § 11; Oxta. Const. art. 6, $ 10 (upon recommenda-

tion of majority of Pardon and Parole Board); Oxia. Srat. ANN, tit. 57, $8 332, 345

(1969); Ore. Const. art. V, § 14; Pa. Const. art. IV, $ 9 (only upon recommendation

in writing of majority of Board of Pardons); Pa. Stat. ANN. tit. 19, § 893 (1964) (ful-

fillment of sentence equivalent to pardon); R.I. Const. amend. 2 (with advice and con-

sent of Senate); S.D. Consr. art. IV, $ 5; SD. Cone § 23-591 (1967) (“only upon

recommendation in writing of the board of pardons and paroles"); Tenn. Const. art.

3, § 6; Tenn. Cont. ANN. § 40-3501 (1955); TEx. Const. art. 4, § 11 (upon written

recommendation of majority of Board of Pardons and Paroles): Tex. Coos Crim. Proc.

art. 48.01 (1966 Revision) (upon written recommendation of majority of Board

Pardons and Paroles); Vr. Const. ch. II, § 20; Va. Const. art. V, $ 12; Was. Const.

art. 3, $9 9, 11; Was. Rev. Cove ANN, $$ 9.95.160, 9.96.010 (1963); W. Va. Const.

art. Vil, § 11; W. Va. Cove ANN. § S-1-16 (1971); Wis. Const. art. 5, $ 6; Wyo.

Const. art. 4, § $; Wro. Stat. ANN. § 7-386 (1959).

27 Ava. Const. amend. 38: Ata. Cone tit. 42, § 1 (1958) (by State Board of Pardons

and Paroles); Antz. Rev. Stat. ANN, $$ 13-1742 to 1745 (Supp. 1972-1973) (within

judicial discretion); Cat. Penat Cone § 1203.4 (West 1970); Conn. Gen. Stat. ANN.

#8 9-47, 48 (by Commission on Forfeited Rights); D.C. Cone ANN. § 1-220 (Supp. V.

1972) (by Commissioners of the District of Columbia); Fra. Srat. ANN. $ 940.05 (Supp.

1973) (by Board of Pardons); Ga. Const. § 2-301! (by State Board of Pardons and

Paroles); Ga. Coot ANN. § 27-2701 (1972 Revision) (by State Board of Pardons and

Paroles): Ga. Cone ANN. § 77-528 (1964 Revision) (describes effect of pardon); Inano

Consr. art. IV, $ 7 (by Board of Paroles); Mrss. Const. art. 12, $ 253 (by the legis-

%

44

770 Tue American Caiminat Law REVIEW [Vol. 11:72}

lature); Miss. Cope § 2503.5 (1957) (if honorably discharged from certain military

service); Mo. Rev. Star. § 216.355 (1962) (by Board of Probation): Nee. Const. an.

IV, $13 (by Board of Pardons); Nes. Rev. Star. $ 29-112 (1964) (by Board of Par.

dons); Nev. Rev. Star. § 213.155 (1968) (Parole Board may restore citizenship upon

expiration of parole); N.I1. Const. pt. 1, art. 11 (by Supreme Court); N.D. Cent. Cove

$$ 12-SS5-05, 12-55-24 (1960) (by Board of Pardons); R.I. Const. amend. 25, § 4

[shall] be permitted to exercise [the franchise] until he be expressly restored thereto by

act of the general assembly”); S.C. Const. art. IV, § 11 (by Probation, Parole and

Board); Tenn. Cone Ann. § 40-3701 (1955) (by the Circuit Court): Urax

art. VII, § 12 (by Board of Pardons); Uran Cons ANN. § 77-62-3 (1953)

of Board of Pardons).

Hy