• The Heritage Network
    • Resize:
    • A
    • A
    • A
  • Donate
  • The ‘‘Right” to Vote of Felons and Noncitizens According to Activist Judges

    As we head into Election Day tomorrow, we should note that there were two decisions last week in federal courts of appeal that directly impact on the right to a secure and fair election, one good and one bad.

    In Johnson v. Tennessee, a three-judge panel of the U.S. Sixth Circuit Court of Appeals upheld the right of the State of Tennessee to condition restoration of the voting rights of convicted felons on payment of restitution and child support obligations.  The decision was two to one and it will probably come as no surprise that the dissenting judge who believed that these felons had an imaginary constitutional right to ignore court orders and restitution requirements was a Clinton appointee.

    Three felons had filed suit claiming that Tennessee was violating their constitutional right to vote.  But the Fourteenth Amendment specifically grants states the ability to abridge the right to vote for “participation in rebellion, or other crime.”  Like 48 other states (with the exception of Vermont and Maine), Tennessee bars felons from voting until their voting rights have been restored.  Felons can start voting again in Tennessee as soon as they complete their sentences pursuant to a proper showing that they have paid all of the victim restitution ordered by a court, as well as child support.  As the two federal judges opined in upholding this requirement, Tennessee possesses valid interests in promoting payment of child support, requiring criminals to fulfill their sentences, and encouraging compliance with court orders.  This lawsuit was just another of a long series of suits filed against felon disenfranchisement laws that have, so far unsuccessfully, sought to override states’ constitutional authority in this area through what amount to largely frivolous constitutional and statutory claims.  The dissenting judge in this case even likened requiring payment by felons of restitution and child support to a poll tax in violation of the Twenty Fourth Amendment!

    The bad decision last week was not surprisingly out of the Ninth Circuit, the most overturned federal appeals court in the nation.  In Gonzalez v. Arizona, a three judge panel overturned Arizona’s 2004 law that requires anyone registering to vote to provide proof of citizenship, a common sense requirement that should be adopted by every state.  The court held that this requirement violates the National Voter Registration Act (better known as Motor Voter).

    This decision was also two to one, with retired Supreme Court Justice Sandra Day O’Connor unfortunately sitting by designation and continuing her largely unbroken string of bad decisions.  However, there was an absolutely stinging dissent written by Chief Judge Alex Kozinski.  As Kozinski cogently pointed out, a prior panel of the Ninth Circuit in this very case had already held that Motor Voter “plainly allow[s] states, at least to some extent, to require their citizens to present evidence of citizenship when registering to vote.”  That makes it the law of the circuit and the law of this case and O’Connor and her fellow activist judge were bound by that prior, published opinion.  As Kozinski said, “The majority refuses to accept the consequences of this reality.”

    The claim that Motor Voter prohibits a state like Arizona from requiring proof of citizenship has no basis in the legislation or its history.  Motor Voter does not supersede Arizona’s law and as Kozinski says, “To get its way, the majority invents a broad rule of same-subject matter preemption.”  There is no conflict between Motor Voter and the state law requirement and there is no question that this case was wrongly decided.

    It is a pretty good bet that this decision will be overturned on appeal.  Fortunately, now that Justice O’Connor is no longer on the Supreme Court, there are actually higher courts than can overrule her bad judgment and her willingness to ignore the law to achieve the policy outcomes she favors (Ed Whelen actually makes a strong argument that “O’Connor has not been a federal judge since Justice Alito’s confirmation in January 2006 and has not been constitutionally eligible to take part in the many federal appellate panels on which she has sat since that time.”).

    Posted in Ongoing Priorities [slideshow_deploy]

    7 Responses to The ‘‘Right” to Vote of Felons and Noncitizens According to Activist Judges

    1. Peter, Portland, Ore says:

      This is an outrage. What then does it mean to be a "citizen" of this country? The insult is in the decision's flaunting of law (more Constiutional "penumbras and emanations"?), to those who struggled to become citizens in this land of Liberty and to the very meaning of that citizenship. As Conservatives (and Libertarians) our tolerance and patience are high–that is, until activist and so-called progressive juidges step on the fabric of our nation and our liberty.

    2. Pingback: Must Know Headlines 11.02.2010 — ExposeTheMedia.com



    4. Buck Crosby Hubert , says:

      This is why we need a constitutional litmus test for American judges , and impeachment of activist judges should be a common occurrence .We also need to legislate against the practice of social justice instead of equal justice , only equal justice is constitutional and acceptable . Ignorant judges are more responsible than sleazy lawyers and corrupt cops for our failing justice system

    5. Barry S, says:

      As long as the underlying theme in this nation is based in which way the political wind blows, decisions will not be made based on the rule of law. It is inconceivable that our system allows and even encourages such bad decisions and that we, the citizens, have nothing to say about it. We can't vote these radical judges out and as long as we keep voting for career politicians such as Obama, Jerry Brown, Barbara Boxer and Nancy Pelosi, we taxpayers will continue to be punished with even higher taxes, more rampant government, endless regulations that choke what was once a thriving business atmosphere that was the envy of the world, higher unemployment and a promise for recurring economic crises. The state and federal governments are run like lunatic asylums with the patients holding the keys. God help us.

    6. ThomNJ says:

      Judges and politicians are diluting the meaning and the bvalue of American citizenship. I am livid with the idocy of the judiciary on many of these cases. Fundamentally, a really terrible decision was made years ago in allowing a citizen of this land to possess citizenship somewhere else. This dual citizenship idea needs to be killed. I believe it is quite impossible to be loyal to two countries at the same time, especially when some of these dual citizenship countries seem to have diamterically opposed goals to those of America. One should choose and not abuse the rights, and I have spoken to those who have dual citizenship – they certainly do abuse this.

    7. HDPILOT,MESA AZ says:

      The first case I agree with.I am a convicted felon I have been out of trouble for a very long time.I have had the same job for over four years in water treatment construction.My love for construction helps the communities function and last I checked the government still takes taxes from me just as they do everyone else but I dont have a say.MMM taxation without representation.I guess its ok to take all my rights away unless it dips into sams pocket.OH and if I needed it would I recieve assistance nope,The past which by the way i did my time completed all factors of my sentence many years ago still haunts me today.I try to remember americas history lets see we came here got the natives intoxicated one of my past troubles and then we stole their world and destroyed it another past difficulty.But dont let one individual do the same thing our forefathers did.I understand there is no excuse for my actions but there are much more dangerous people than one like myself we should spend our energy and tax dollars on.Or heres a thought use that money to feed americans that need it right now. sorry for the ramble FRUSTRATED TAX PAYING AMERICAN

    Comments are subject to approval and moderation. We remind everyone that The Heritage Foundation promotes a civil society where ideas and debate flourish. Please be respectful of each other and the subjects of any criticism. While we may not always agree on policy, we should all agree that being appropriately informed is everyone's intention visiting this site. Profanity, lewdness, personal attacks, and other forms of incivility will not be tolerated. Please keep your thoughts brief and avoid ALL CAPS. While we respect your first amendment rights, we are obligated to our readers to maintain these standards. Thanks for joining the conversation.

    Big Government Is NOT the Answer

    Your tax dollars are being spent on programs that we really don't need.

    I Agree I Disagree ×

    Get Heritage In Your Inbox — FREE!

    Heritage Foundation e-mails keep you updated on the ongoing policy battles in Washington and around the country.