Discriminatory Intent Requirement: The “Separate but Equal” Doctrine of the Twenty-first Century?–A Critical Examination of Felon Disenfranchisement Laws and Related Government Practices in the United States

Cecilia Zhang Stiber, Discriminatory Intent Requirement: The “Separate but Equal” Doctrine of the Twenty-first Century?–A Critical Examination of Felon Disenfranchisement Laws and Related Government Practices in the United States, 41 Gonz. L. Rev. 347 (2006).

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How far has America come from the days of poll taxes, grandfather clauses, and literacy requirements? Recent statistics are quite telling:

1.4 million African American men, or 13 percent of the black adult male population, are disenfranchised, reflecting a rate of disenfranchisement that is seven times the national average. More than one-third (36 percent) of the total disenfranchised population are black men.

Ten states disenfranchise more than one in five adult black men; in eight of these states, one in four black men is permanently disenfranchised.

In Florida and Alabama, ‘more than 30 percent of all African American men have lost their rights to vote forever.’

These are the results produced by an American society 134 years after ratifying the Fifteenth Amendment to its Constitution, which accorded voting rights to all United States citizens regardless of “race, color, or previous condition of servitude.”

Proponents of felon disenfranchisement laws believe that voting is not a fundamental right – it is a privilege. Roger Clegg, a supporter of felony disenfranchisement, maintains that society is not required to ignore someone’s criminal record once he gets out of prison, especially when the record undermines the ex-prisoner’s trustworthiness and loyalty, two characteristics required of voters. Christopher P. Manfredi, another proponent, also suggests that protecting the integrity of a liberal democracy preserves and promotes the civic virtues on which democracy depends. Thus, disenfranchising ex-felons serves the principle objective of a democratic regime “by suspending the right to vote of individuals who have manifestly demonstrated that they lack those virtues, while simultaneously reinforcing the principle that citizenship entails responsibilities and duties as well as rights and privileges.” However, to many legal scholars, practitioners, and civil rights activists, these results are unacceptable. To the average American, these results should cause shock and outrage…. Read More

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