What’s the largest group of Americans who can still be systematically barred from voting, including many for the rest of their lives?
If you guessed those Americans who have been convicted of felonies, you guessed correctly. But you still may not appreciate just how large and impactful the number is.
The most recent estimate is that 4.6 million Americans, close to 2% of our nation’s population—a population larger than half the states in the nation—can not vote because of their felony status. In some states (Tennessee, Mississippi and Alabama), the total is as high as 8% of the population. And the number of disenfranchised is so high in some states (and so disproportionately impacts Black Americans), estimates are that it’s altered the outcome of at least seven U.S. Senate seats since 1978, not to mention the outcome of the Presidency in 2000 (in Florida, more than 800,000 Floridians were barred from voting in the razor-thin. Bush-Gore election).
Here’s a graph (from The Sentencing Project) tracking the totals (we’ll walk through more below):
I hope these numbers grab your attention.
But participants in my Voting Rights Academy have also learned how difficult it is for voting exclusions to pass the sky-high scrutiny that emerged after Harper and Kramer—where the government’s justification must be narrowly tailored to serve a compelling state interest.
So how, you might be asking, does this enormous blanket exclusion of those with felony records survive that strict scrutiny?
Simple: the Supreme Court ruled that felony voting bans don’t have to face strict scrutiny at all. The Court’s use of a long-lost Constitutional clause to reach that conclusion remains controversial to this day. It’s a perfect example of how a contested legal interpretation of just a few words and arcane history can impact millions of Americans today, along with questions as pivotal as who leads our country.
Class 8 of my Voting Rights Academy is about that decision and its enormous impact on voting and politics in America:
Ramirez v. Richardson
Before we get to those nationwide and profound stakes, let’s travel back in time to a restaurant in Texas, in the 1950s, where a brawl broke out. At least that was the account of a 23-year farmworker named Adran Ramirez, who said he got into a fight in that Texas restaurant, which led to his arrest. Not represented by an attorney, he pleaded guilty to the crime of “robbery by assault,” and served three months in a Texas jail before being released on parole, a condition he was later released from after ten years.
Eleven years after that, then in his early 40s, married, a father of five, and 1,500 miles away, Adran Ramirez attempted to register to vote in San Luis Obispo County, California (on the coast, north of Santa Barbara). And that was when those three months in jail from his restaurant brawl all those years ago came back to haunt him.
Ramirez was denied registration due to a California law barring those convicted of certain “high crimes” from voting. Ramirez and two other California residents, also denied registration, sued to restore their voting rights. The three ultimately won at the California Supreme Court, which ruled that their exclusion violated the Equal Protection Clause.
The US Supreme Court took the case in 1973.
XIV Amendment, Section 2: Is This Really What They Meant To Do?
So how did California make its case to the US Supreme Court that the law disenfranchising Ramirez survived strict scrutiny?
It didn’t…because the Court said it didn’t have to….
Keep reading with a 7-day free trial
Subscribe to Pepperspectives to keep reading this post and get 7 days of free access to the full post archives.