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June 24, 2014

Sen. Paul's Effort to Force Ex-felon Voting Rights May Contradict Federalism


Sen. Rand Paul, a Kentucky Republican, expects to introduce legislation this week to restore the voting rights of non-violent offenders in federal elections after they have served their time.

According to a report in the Louisville, KY, Courier-Journal, Paul has been unable to get state lawmakers to take this step and so plans to do it at the federal level.

That could be a problem for the self-proclaimed Tenth Amendment supporter.  As conservative civil rights expert Roger Clegg points out in National Review, “Congress has no authority to pass such legislation, and if Senator Paul proposes it, I am sorry to say that he has shown himself to be someone who does not take the Constitution seriously.”

Clegg continues: “The Constitution gives the states the authority to determine who can vote in elections, so long as they do so in a way that does not violate some other provision of the Constitution (for example, gender discrimination in voting).  But there is no credible argument that disenfranchising felons violates the Constitution; indeed, the Constitution itself (in Section 2 of the Fourteenth Amendment) expressly contemplates the disenfranchisement of felons.”

There has been a growing movement among conservatives to rethink the criminal justice system and penalties for non-violent offenders, especially those convicted of purchasing small amounts of illegal drugs.  That’s a debate worth having, but it doesn’t mean that Congress has the constitutional authority to do anything about it.

Nor does the issue appear to be a political crisis.  According to the National Conference of State Legislatures:

  • 38 states and DC allow most ex-felons to automatically gain the right to vote upon the completion of their sentence.
  • In some states, ex-felons must wait for a period after the completion of their sentence before rights can be restored, and in others, including Kentucky, ex-felons must apply to have voting rights restored.

It may be that restoring ex-felons’ voting rights is an issue whose time has come.  But if that’s the case, states should do it—and apparently the large majority have.  Pushing federal legislation because you don’t like how fast the states are moving is not a constitutional solution. 


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