The Boundary Problem of Rights Restoration

Abstract

By conditioning the restoration of felons’ political rights on the repayment of legal financial obligations, states have kept millions of potential voters from participating politically—profoundly altering the shape of the American electorate. Courts have upheld the practice by treating the conferral of political rights to non-members of the political community as an exercise of legislative grace subject to few constraints. 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 a first-order question overlooked by both sides: how should the juridical status of a disenfranchised citizen’s “lost” rights be understood? The conventional position, which I call the “expulsion” view, imagines that a sentence of disenfranchisement casts a citizen outside the democratic community, thereby voiding all prospective constitutional interests predicated on political membership. However, disenfranchisement is better characterized as the subordination—not the wholesale elimination—of a citizen’s constitutional interests in voting or otherwise participating politically, just as incarceration suppresses but does not eliminate a person’s constitutional interest in physical liberty. From this it follows that disenfranchised citizens retain a stake in political participation and suffer cognizable harm when return to full political membership is inflected by wealth status. Redescribing the disenfranchisement-to-restoration process in this way aligns with the Richardson Court’s reading of Section 2 of the Fourteenth Amendment and sharpens the constitutional symmetry between fee-based restoration and paradigmatic forms of wealth discrimination like poll taxes. 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 currently underway outside the courts.