The Supreme Court: A Threat to Felons' Voting Rights

Maybe you've had the thought that felon disenfranchisement is something that the Supreme Court should surely weigh in on. After all, plenty of the great blows for racial justice in U.S. history have been struck by its highest court.

But as we noted earlier today, the Supreme Court has just received word of a development that makes it less likely for the moment that it will do so. And as it turns out, that's a good thing — it will leave hope for another day.

The letter the Supreme Court received today from the Massachusetts Attorney General's office alerted the justices to the potential dissolution of a split between appeals courts on whether depriving felons of voting rights violates federal law. The Boston-based First Circuit, New York-based Second Circuit, and Atlanta-based Eleventh Circuit Courts of Appeals have all upheld laws depriving felons of the right to vote. Twice, though — most recently in January — the San Francisco-based Ninth Circuit Court of Appeals has determined that felon disenfranchisement violates the Voting Rights Act, which prohibits laws that disproportionately deprive minorities of the right to vote. When the circuits disagree — called a "circuit split" — it often prompts the Supreme Court to step in and resolve that difference. But that might not be necessary, as the Ninth Circuit may be backing away from upholding felons' constitutional rights.

Earlier this week, the Ninth Circuit decided to get the whole gang together and re-hear the felons' voting rights case, initially considered by only three circuit judges. This kind of re-hearing is fairly common and gives 11 circuit judges the opportunity to reconsider decisions made by three-judge panels. It only occurs, however, when a majority of the circuit's judges vote to re-hear a particular case. So the fact that the Ninth Circuit is reviewing a decision that they have already made twice might signal that they'll reverse that decision — and uphold felon disenfranchisement laws over felons' and civil rights advocates' objections.

That would be a blessing, actually. But it would only benefit reform advocates if the Ninth Circuit moves before the Supreme Court makes its decision on whether to review the case. Why? Let me explain.

The facts have not changed: felon disenfranchisement laws remain racially discriminatory and unjust. Criminal justice advocates should continue to push for repeal of these Jim Crow-era laws, which bar 13% of black men from participating in our democracy.

So why not encourage the Supreme Court to take this issue up and reverse the circuits that have upheld felon disenfranchisement? Umm, have you seen the Supreme Court lately? This conservative, activist Court has granted corporations First Amendment rights and opened the floodgates to corporate money in elections. The current justices upheld federal abortion restrictions virtually identical to those determined unconstitutional before Chief Justice Roberts and Justice Alito took their seats on the bench. And, perhaps most on point, the Roberts Court has flashed signs of its hostility to voting rights — a hostility that seems bound to bubble into its majority decisions.

In short, this is not the kind of Court that would see the wisdom in striking racially discriminatory laws disenfranchising prisoners from the books. Yes, the Ninth Circuit's reconsideration and potential reversal of its decision to uphold felons' voting rights would be sad. But it would also leave open the opportunity for felon reenfranchisement through the courts within our lifetimes — something a decision by the Roberts Court would likely snatch from our grasp.

Photo Credit: keith bacongco