Buying Your Vote Back

In many states, convicted felons lose the right to vote, at least temporarily. In Tennessee, restoration of a felon’s voting rights is conditioned upon payment of court-ordered victim restitution and child support obligations. Is this unconstitutional? A divided panel of the U.S. Court of Appeals for the Sixth Circuit thinks not. In Johnson v. Bredesen, Judge Cook, joined by district judge Ludington (sitting by designation) rejected claims that the Tennessee requirement violates the 14 Amendment’s Equal Protection Clause, the 24th Amendment, and the Ex Post Facto and Privileges or Immunities Clauses of the United States and Tennessee Constitutions. Judge Moore penned a 39-page dissent which begins:

A state under current law may curtail a felon’s right to vote, or even forever deny it, but once a state enacts a process by which a felon may regain suffrage, that process must comport with the demands of the Constitution. Contrary to the majority’s conclusion, I would hold that Tennessee Code § 40-29-202(b) and (c) violate the Equal Protection Clause of the U.S. Constitution and the Ex Post Facto Clause of the Tennessee Constitution. I further believe that the Plaintiffs have alleged sufficient factual matter to state a claim for relief under the Twenty-Fourth Amendment to the U.S. Constitution such that dismissal on the pleadings was improper. For the following reasons, I must respectfully dissent.

Tennessee Code § 2-19-143 and § 40-20-112 disenfranchise all persons who have been convicted of “infamous” crimes, i.e., felonies. Those felons denied the right to vote are “eligible to apply for a voter registration card and have the right of suffrage restored” if they receive a pardon, are discharged from custody after serving the maximum sentence imposed, or are granted a final discharge from supervision by the relevant county, state, or federal authority. Tenn. Code Ann. § 40-29-202(a)(1)–(3) (2006).  Notwithstanding this provision, however, there are two pecuniary preconditions to reenfranchisement: “[A] person shall not be eligible to apply for a voter registration card and have the right of suffrage restored, unless the person has paid all restitution to the victim or victims of the offense ordered by the court as part of the sentence,” id. § 40-29- 202(b), and “unless the person is current in all child support obligations,” id. § 40-29- 202(c). Prior to 2006, felons adjudged to have committed infamous crimes were eligible to vote upon the completion of their sentences despite any outstanding financial obligations.

In the instant case, the Plaintiffs are individuals who have completed the imprisonment associated with the felonies for which the State was authorized to abridge their right to vote. Yet because of their inability to pay outstanding restitution and/or child-support arrears, the State continues to deny them the right of suffrage to which they otherwise would be entitled automatically were the law the same now as it was at the time of their convictions and initial disenfranchisement. It is indisputable that the Plaintiffs are now unable to access the ballot box simply because they are too poor to pay.