This may come as a surprise to some, but our United States Constitution does not protect the right of all citizens to vote, but rather the right of all qualified citizens to vote.

Article I, Section 4, Clause 1 of the United States Constitution requires:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

As such, state legislatures are given the power and authority to set the time, place, and manner of elections; however, the Constitution does explicitly prohibit discrimination (Amendments XV, XIX, and XXVI) in granting the franchise based on a person’s race, sex, or age.

Amendment XV to the Constitution provides:

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

Amendment XIX states:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.

Congress shall have power to enforce this article by appropriate legislation.

Amendment XXVI:

Section 1. The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.

Section 2. The Congress shall have the power to enforce this article by appropriate legislation.

Notwithstanding, States and other governments can and do disfranchise individuals and groups of citizens. It would appear, if there is no provable bias, it is Constitutional, despite the guarantee of “equal protection” provided by Amendment XIV :

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Case in point is the disfranchisement due to criminal conviction. According to Wikipedia, there are thirteen U.S. states which deny the right to vote to those serving time for felony conviction; however, the disfranchisement is for the length of incarceration. Texas has a similar law that extends the suspension of the right to vote for a period of two years after release from custody. Thirteen other U. S. states permanently deny the right to vote with Arizona and Maryland imposing perpetual disfranchisement after two convictions. Only two states, Maine and Vermont allow prison inmates to vote unless disfranchisement is meted out as a separate punishment.

Since 1868 Florida has had a lifetime voting ban for felons.

In the case of Johnson v. Bush, 2005 U.S. App. LEXIS 5945, 18 Fla. L. Weekly Fed. C 406 (11th Cir. Fla. Apr 12, 2005) eight Florida citizens, representing a class of over 613,000 Florida citizens who have fully served sentences of incarceration, probation, or parole on felony convictions, challenged the Florida Constitutional provision barring convicted felons from voting in the State of Florida.

The case synopsis is as follows:

Plaintiffs contend that this provision violates Section 2 of the Voting Rights Act, as well as the 14th and 15th Amendments to the United States Constitution. Plaintiffs contend that: the original provision, enacted in 1868, was motivated by a discriminatory purpose to disenfranchise African-Americans; this provision was reenacted in 1968 with no explanation provided, maintaining the original taint of discriminatory purpose in the 1868 enactment; the disproportionate effect on African Americans; and, the fact that African Americans are less likely to have their rights restored.

On November 14, 2005, the United States Supreme Court, without comment or published decision, rejected the appeal of Florida felons seeking to regain their right to vote, thereby affirming the April 12, 2005 en banc decision of the United States Court of Appeals for the Eleventh Circuit in the Johnson case.

That court’s findings have been summarized:

The Court conceded the fact that some provisions of the 1868 Constitution were discriminatorily motivated, but this did not mean all provisions were. The Court, however, went on to state that there was no direct evidence of discriminatory motivation behind the provision in question. Additionally, in 1968, amendments to the Florida Constitution were considered and debated in a deliberative process, and amendments to the provision in question were changed to only include felons, whereas in the past people convicted of misdemeanors were also disenfranchised. No evidence of racial animus was provided, a valid reason for the provision was found, and as such the provision was found to be constitutional. Finally, the Court held that the legislative history behind Section 2 of the Voting Rights Act indicates that, while the section was intended to prevent discrimination in elections, it was never intended to affect a State’s ability to disenfranchise persons convicted of felonies.

Per se, the issue of convicted felons losing their right to vote while incarcerated and during their period of probation is of little interest to me; however, I am not of the opinion the loss of franchisement should be permanent once one has served the requisite time and complied with all probationary matters. Further, I have no problem with some State-instituted process whereby a convicted felon is required to apply for re-institution of the right to vote.

What I find provocative about this topic is the assertion by the plaintiffs in the Johnson case that 10 percent of African-American adults in the state are prohibited from voting under the ban and this percentage does not include those presently incarcerated.

This is further apparent in the Petition for Writ of Certiorari filed by the Johnson plaintiffs with the United States Supreme Court:

Questions Presented

1. Is a permanent felony disenfranchisement provision - like all other voting qualifications subject to challenge under Section 2 of the Voting Rights Act on the ground it results in denial of the right to vote on account of race?

2. When a provision as enacted by a state for the purpose of disqualifying otherwise eligible black voters, and it has disenfranchised blacks at twice the rate of others for more that one hundred years, does the state bear the evidentiary burdens of production and persuasion in proving it reenacted the provision for an independent, nondiscriminatory reason sufficient to purge its unconstitutional taint?

As stated above, it would appear, if there is no provable bias, disfranchisement is Constitutional, despite the guarantee of “equal protection” provided by Amendment XIV.

The implications of this extend beyond race, sex, and age.