Felon Re-Enfranchisement and the Problem of “Lost” Rights

Abstract

By conditioning the restoration of political rights on financial repayment, states have prevented hundreds of thousands of citizens with felony convictions from participating politically—profoundly altering the shape of the American electorate. Courts have upheld the practice by treating restoration as an exercise of legislative grace to nonmembers of the political community. Critics argue that the practice conditions political participation on wealth status and is therefore subject to heightened review.

This Essay traces the disagreement back to an overlooked first-order question: how should the juridical status of a disenfranchised citizen’s “lost” rights be understood? The conventional position assumes that disenfranchisement casts a citizen outside the democratic community, thereby voiding all constitutional claims to political participation. But for doctrinal and democratic-theoretical reasons, disenfranchisement is better understood as the subordination—not the revocation—of political rights and interests, just as punishment suppresses but does not eliminate an individual’s constitutional interests in physical liberty or other civil liberties. From this it follows that disenfranchised citizens retain a stake in political inclusion that cannot be conditioned on wealth status.

Redescribing the disenfranchisement-to-restoration process in this way aligns with the Supreme Court’s reading of Section 2 of the Fourteenth Amendment in Richardson v. Ramirez and sharpens the constitutional symmetry between financially conditioned restoration and the paradigmatic poll tax. By framing re-enfranchisement as a constitutional default and drawing attention to disenfranchised citizens’ enduring claim to political presence, this account may also be of use in popular restoration efforts outside the courts.