This is an excerpt from Chapter 4 of The Court v. The Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights, published today by Beacon Press and written by Washington Monthly Contributing Writer Joshua A. Douglas, a professor of law at the University of Kentucky J. David Rosenberg College of Law. The chapter “The Stigma of Felon Disenfranchisement” discusses a 1974 case in which the Supreme Court ruled that states can take away the right to vote from individuals convicted of a felony. –The Editors
Marty Glick was eager to chat, even if the topic was a lawsuit from almost five decades ago—and was a case he lost. Because, as he put it, he sort of won in the end. (Lawyers always think that!)
The year was 1974. Richardson v. Ramirez, which involved a challenge to the practice of felon disenfranchisement in California, had just reached the highest court in the land. The Supreme Court ultimately upheld the state’s law that allowed counties to disenfranchise individuals with a felony conviction, even after they have served their time and completed all aspects of their probation and parole. The Court based its ruling on an obscure, mostly forgotten three-word phrase, “or other crime,” in the Fourteenth Amendment. In the process, the Court allowed for the continued disenfranchisement of millions of otherwise eligible voters today.
I’m often asked why it’s constitutional for states to disenfranchise anyone with a felony conviction on their record. The term “felony” encompasses a lot of crimes—typically those punishable by imprisonment for more than one year—so these measures take away the right to vote for millions of people. Isn’t voting a fundamental right? Well, the answer is that the Supreme Court essentially blessed the practice five decades ago.
A Fight in a Restaurant in 1952
Abran Cruz Ramirez was 22 years old in 1952, living in Texas, when an argument at a restaurant changed his life. The record is not entirely clear on what happened that day, but the state charged him with “robbery by assault,” a felony. He represented himself in the criminal proceedings and pleaded guilty, apparently influenced by the advice of the judge. Ramirez served three months in prison and then successfully finished his parole by 1962. That is, he had fully completed his sentence ten years prior to the start of the case that bears his name.
Ramirez moved to California and settled in San Luis Obispo County, which is between Los Angeles and San Francisco. A farm worker, he was married and had five children. In February 1972, when he was in his 40s, Ramirez tried to register to vote in California, but the San Luis Obispo County clerk denied his registration on the basis of his Texas felony conviction from the early 1950s. At the time, California law allowed counties to disenfranchise any voter who had been convicted of an “infamous crime,” and the county clerk determined that “robbery by assault” qualified as “infamous.” As a result, Ramirez was denied the right to vote. He died on March 16, 2014, at 85, so I was sadly unable to interview him for this book. But his legacy lives on from the Supreme Court’s decision in the case that bears his name.
Ramirez was not the only plaintiff. Albert Sang Lee, of Salinas, California, was married with four children and was 54 years old at the time of this case. Lee was convicted of possession of heroin in 1955. He served two years in prison before successfully completing his parole in 1959. In 1972, 17 years after his conviction and 13 years after he had satisfied all terms of his sentence, the Monterey County clerk denied his voter registration application on the basis of his felony conviction. The third plaintiff, Lawrence Gill, was living in Stanislaus County, California, just east of San Jose, with his wife and their four children. He had three felonies on his record: second-degree burglary in both 1952 and
1967, and forgery in 1957. He told the courts that his crimes all revolved around his desire to find money to support his narcotics addiction. Gill finished his prison sentences and parole, cleaned up his life, and was working at a local winery. His felony convictions, however, made him ineligible to vote in Stanislaus County. Viola (“Vi”) Richardson, the Mendocino County clerk who intervened in the case to defend the California law, was the named defendant.
Beyond having their names on the case, the plaintiffs didn’t actually do much in this litigation. The main driver was an organization called California Rural Legal Assistance (CRLA). CRLA began the litigation, found the plaintiffs, and took the case all the way to the U.S. Supreme Court. Unlike Burdick—a 1992 case which involved an individual who was upset at Hawaii’s voting rules and decided to bring suit—the Ramirez case was an organizational effort that is an example of what civil rights lawyers call “cause” litigation or a “test case.” Reform advocates saw a problem, created a legal strategy, and then identified affected people to be the plaintiffs. Marty Glick was one such advocate and served as the main lawyer.
Glick has spent his entire career fighting for civil rights. He’s one of those lawyers whom you don’t hear much about but who has been in the trenches supporting minority voting rights and other civil rights causes for decades. After graduating from Ohio State College of Law, Glick joined the Civil Rights Division of the Department of Justice, where he sued localities in the South that were denying Black people the right to vote. He then moved to California—mostly for the weather, he said—and joined CRLA. Much of his work for CRLA involved helping migrant farmers secure the right to vote; in one case, he won a legal ruling to strike down California’s English literacy test as a requirement for voting. He co-wrote a book, The Soledad Children, that recounts a legal challenge he filed against California’s discriminatory use of English-only IQ tests, which had resulted in the placement of thousands of Spanish-speaking children into classes for the “Educable Mentally Retarded.” The successful litigation undid this policy, leading to better education for thousands of children.
CRLA provides free legal and lobbying services to low-income individuals in rural California. Glick served as its litigation director and eventually became its executive director. The Ramirez case came about through the work of CRLA field offices and the lawyers in the organization. Essentially, the group was thinking about ways to give a larger voice to California’s marginalized communities.
They realized that the state’s felon disenfranchisement rule deprived many people of their power to affect change within the government. They also thought that California’s practice—which allowed counties to decide for themselves which crimes were “infamous” and therefore qualified for disenfranchisement—was fundamentally unfair. A person convicted of a felony might be eligible to vote in one county but not in another, depending on the whims of the county clerks and their own definitions of what constituted an “infamous crime.”
The lawyers decided to challenge the law. Of course, they needed plaintiffs, so the field offices put the word out, especially in Spanish-speaking communities, seeking individuals who had been denied their right to vote. They were searching for a range of people—with long-ago and more recent convictions and from various parts of the state—all of whom had completed their sentences and successfully reentered society. Abran Ramirez, Albert Lee, and Lawrence Gill fit the bill perfectly.
The Supreme Court’s Broad View of “Other Crime”
Sometimes, bad lawyers still win their cases. Justice Lewis Powell took notes as he listened to the lawyers present their arguments to the Court; regarding the California county’s lawyer, he jotted down, “Incompetent lawyer who didn’t earn his transportation fare to attend their argument.” Ouch!
How did the state and county end up winning, with the Court upholding California’s felon disenfranchisement provision? There’s an old adage that “hard cases make bad law.” This case, however, should have been easy. On the one hand, the California Supreme Court had noted that recent U.S. Supreme Court cases elevated the importance of the right to vote and required states to offer a precise justification for a law that impacts someone’s exercise of the franchise. On the other hand, the state officials argued here that the opaque language of the Fourteenth Amendment’s Section 2, which allows for disenfranchisement for “other crime,” gives wide leeway for states to disenfranchise those convicted of a felony for the rest of their lives.
A narrow, originalist reading of the “participation in rebellion, or other crime” language would recognize that those who wrote that language were responding to the aftermath of the Civil War. To understand this constitutional text, the Court looked to the Reconstruction Acts, which were the federal statutes dictating the conditions under which the former Confederate states would be readmitted to the Union and again enjoy congressional representation. Those laws provided that the Confederate states must adopt a state constitution that granted voting rights to “male citizens of said State, 21 years old and upward, of whatever race, color, or previous condition,” but provided an important caveat: “except such as may be disfranchised for participation in the rebellion or for felony at common law.”
Thus, “other crime” in the Fourteenth Amendment was tied to the rebellion and was understood in conjunction with “felony at common law” from the Reconstruction Acts. Franita Tolson, the dean and Carl Mason Franklin Chair in Law at the University of Southern California Gould School of Law, showed through her scholarship on the Fourteenth Amendment, however, the Court “ignored the [Reconstruction] Acts’ textual limitation that disenfranchisement be only for felonies at common law.” What was a “felony at common law”? Here’s Professor Tolson again: “A felony at common law was a serious crime punishable, in some cases, by death. The nine traditional common law felonies under English law were murder, robbery, manslaughter, rape, sodomy, larceny, arson, mayhem, and burglary.”
Those who ratified the Fourteenth Amendment never intended it to serve as a blanket allowance for lifetime disenfranchisement for anyone convicted of any felony. They were instead focused on those who had rebelled against the Union and, perhaps, other serious criminals. The whole point of Section 2 of the Fourteenth Amendment wasn’t to disenfranchise people; it was to secure voting rights for formerly enslaved individuals—to enfranchise Black people and make them full citizens.
As Justice Thurgood Marshall wrote in his dissent in Ramirez, “Section 2 provides a special remedy—reduced representation—to cure a particular form of electoral abuse—the disenfranchisement” of Black voters. The Court’s textual argument, to use the “other crime” language to uphold felon disenfranchisement, was therefore misplaced. The Court improperly construed Section 2 of the Fourteenth Amendment to allow states to disenfranchise anyone convicted of a felony. The right to vote, as protected within the Fourteenth Amendment’s Equal Protection Clause of Section 1, now had a significant limitation from Section 2: a state can decide that felons are not lawful voters.
The Court also distinguished recent cases in which it had promoted the equality principle inherent in democratic participation: those cases didn’t involve felons and were, therefore, apparently irrelevant. The Court essentially just ignored that case law. Instead, the Court said that “the exclusion of felons from the vote has an affirmative sanction in Section 2 of the Fourteenth Amendment.” The Constitution itself, the Court found, has a built-in allowance for felon disenfranchisement.
Fortunately, all was not lost on the issue. The Court explained that states themselves could repeal their felon disenfranchisement provisions. The Constitution permits felon disenfranchisement but does not require it. That’s exactly what happened in California a few months after the Court decided Ramirez in 1974: the state’s voters approved a state constitutional amendment to give back the right to vote to anyone who had completed
their sentence. In the end, Marty Glick said, they kind of won—at least for California voters. The lawsuit helped to push the issue of felon disenfranchisement to the forefront of the public’s mind. Of course, Glick still acknowledges that they lost in a big way. Instead
of approaching the case with the fundamental right to vote at the forefront, the Court found a way “to dredge out” a phrase from century-old, never-before-used language to endorse the disenfranchisement of otherwise-eligible voters. It was an early indication that the Court was turning away from the primacy of voters in our democratic system and instead deferring to states in their election rules.
Imagine how different our politics might look had the Court come out the other way in Ramirez and limited felon disenfranchisement to only those convicted of “other crimes” that were related to rebellion or a serious violation of the public trust. For one, over 5 million more individuals would be allowed to vote. They would have a voice in our democracy. Some elections even might have turned out differently. Consider the razor-thin margin between George W. Bush and Al Gore in Florida’s 2000 presidential election. Bush won by just 537 votes out of over 5.8 million cast, and with Florida came the presidency.
That year, Florida disenfranchised around 827,000 individuals on the basis of a felony conviction. Although people with felonies on their records are not monolithic and do not all vote the same way, it’s at least plausible to think that more would have voted for Gore than for Bush. After all, felon disenfranchisement disproportionately harms racial minorities, who also tend to skew Democratic. Two political scientists calculated that if disenfranchised individuals had “participated in the election at our estimated rate of Florida turnout (27.2 percent) and Democratic preference (68.9 percent), Gore would have carried the state by more than 80,000 votes.” Bush’s victory in 2000 had immeasurable consequences for our country, from the war in Iraq to education policy and the No Child Left Behind Act to a failure to address climate change. The point is not that Gore would have been a better president; who knows what travails his presidency would have faced. It’s that Gore probably should have won the presidency—if all voters had been allowed to vote.
