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Voter ID has been the hot button issue for voting rights for the last few years, but another big voting rights issue is the disenfranchisement of convicted felons. Sa'ad el-Amin filed a challenge to Virginia's felony disenfranchisement laws in July of 2012. I realize that the case is a bit old, but I hadn't seen another entry on this topic yet. I'm uncertain of the disposition of the challenge since the latest news I can find came from March of 2013, when the District Court for the Eastern District of Virginia decided that the case could move forward. I assume that the case is moving forward, but if anyone has any more current information I'd love to hear where the case is in the trial process. More below the fold.

Sa'ad el-Amin pleaded guilty to conspiracy to attempt to evade his taxes in 2003. He was sentenced to 37 months imprisonment and 3 years of supervision upon release. He completed his sentence and was informed that he had been removed from the voting rolls because of his conviction. Virginia is one of only four states that disenfranchises felons for life, absent an application granted by the Governor, who has complete discretion on whether to grant or deny an application. Sa'ad el-Amin's challenge alleges that the felony disenfranchisement provisions of the state code were enacted with the intent to disenfranchise African-Americans in violation of the 15th Amendment. There are two important issues that could impede Mr. Amin's challenge.

The first issue is that the Supreme Court has already sanctioned the disenfranchisement of felons in Richardson v. Ramirez. This is likely to less of an issue in Mr. Amin's case because the Richardson case was based on an equal protection challenge under the 14th Amendment while Mr. Amin's challenge is based on the 15th Amendment's prohibition on discriminatory disenfranchisement. The equal protection challenge could still be an important aspect of the challenge to the Governor's absolute discretion on whether to reinstate an individual's voting rights. However, this would only matter if Mr. Amin could get the court's dismissal of this count reversed. Based on the facts, this seems unlikely.

The second major issue is the difficulty of proving racial animus. The Supreme Court has overturned on felon disenfranchisement statute, though it didn't get around to this until 1985. The Court, in Hunter v. Underwood noted that

“Various minor nonfelony offenses such as presenting a worthless check and petty larceny fall within the sweep of §182, while more serious nonfelony offenses such as second-degree manslaughter, assault on a police officer, mailing pornography, and aiding the escape of a misdemeanant do not because they are neither enumerated in §182 nor considered crimes involving moral turpitude.”
The peculiar list of offenses and testimony that ten times as many African-American voters were disenfranchised led the Court to invalidate the statute. This precedent is not exceedingly helpful to Mr. Amin because the list of disenfranchising felonies in Virginia is very inclusive. There is no peculiar list of offenses, though violent and non-violent felons are disenfranchised for different periods of time. While African-American's are disenfranchised at a higher rate due to this law, it will be difficult to demonstrate that this is do to discrimination with regard to voting rights. Instead, it would appear more likely to be discrimination in the criminal justice system as a whole.

Mr. Amin has stated that a proponent of the felon disenfranchisement provisions of the Virginia Constitution introduced it at the 1901 convention by stating it would “eliminate the darkey as a political factor in this state in less than five years.” This is similar to a felon disenfranchisement provision in the Mississippi Constitution which was overturned by the Mississippi Supreme Court in 1896. In that case, the constitutional convention record showed that the delegates felt the disenfranchisement provision was "within the field of permissible action under the limitations imposed by the federal constitution," because

"restrained by the federal constitution from discriminating against the negro race, the convention discriminated against its characteristics and the offenses to which its weaker members were prone.”
A similar challenge to a Florida provision was also successful. The explicit racial considerations in these two cases led states in the Jim Crow south to overturn their own constitutional provisions, so a similar argument could probably serve Mr. Amin well. However, challenges to felon disenfranchisement provisions through the courts have been largely unsuccessful.  This should be an interesting case to follow once more information comes to light.

Originally posted to Oisin on Mon Aug 04, 2014 at 11:20 AM PDT.

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