Ballots and Bullets: The Exceptional History of the Right to Vote

Abstract

Part I of this article, which formed the basis for the 2002 William Howard Taft Lecture in Constitutional Law, focuses on the way in which the right to vote is a striking counterexample to the general proposition that civil rights and civil liberties contract during wartime. Looking at issues ranging from the abandonment of wealth requirements and poll taxes to the enfranchisement of blacks, women, and 18 to 21 year-olds, I show how war influences the scope of the franchise in several related but distinct ways. First, and most significantly, it has helped to determine who is entitled to vote. Sometimes, this flows from a direct equation of responsibilities and rights: those who fight, or contribute to the war effort, acquire a moral claim to full participation in self-government. Sometimes, the connection is more instrumental: in order to mobilize the necessary support for a war, the franchise has been extended to groups that were previously excluded. And sometimes, the connection has reflected war aims: wars fought to make the world safe for democracy abroad raise questions about democracy at home. Second, war has influenced how voting is conducted; absentee voting provides a paradigmatic example. Finally, Carrington v. Rash suggests that the intersection of military service and voting rights contributed in an important, and perhaps unnoticed, way to the development of heightened scrutiny for voting rights claims. Part II of the article turns to another connection between ballots and bullets. Today, the largest - and growing - group of American citizens who remain disenfranchised are people convicted of crimes. Courts have consistently rejected challenges to felon disenfranchisement based on the equal protection clause or the Voting Rights Act. I suggest an alternative claim, at least with respect to lifetime disqualification of persons who have otherwise finished serving their sentences: the cruel and unusual punishment clause of the Eighth Amendment. Doctrinal shifts since the Supreme Court last addressed the issue show that disenfranchisement is in fact punitive and not merely regulatory. Lifetime disenfranchisement as a punishment is grossly disproportionate to the gravity of the offenses for which it often imposed. Using the framework articulated last Term by the Supreme Court in Atkins v. Virginia, I argue that lifetime disenfranchisement does not comport with contemporary standards. Both the magnitude and direction of recent legislation undermines the use of lifetime disenfranchisement. National public opinion has shifted. Finally, consensus within the world community is uniformly against lifetime disenfranchisement. Whatever the merit of the arguments for disqualifying persons who are incarcerated or otherwise under supervision, they cannot justify permanent, lifetime disenfranchisement of all persons convicted of a felony.