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Ninth Circuit Upholds Arizona’s Felon Disenfranchisement Law

by David M. Reutter

The Ninth Circuit Court of Appeals held on May 27, 2010 that Arizona’s felon disenfranchisement law does not violate the Fourteenth Amendment. The law is based on Arizona’s Constitution, which provides that anyone convicted of treason or a felony may not vote unless their civil rights are restored.

The appellate court rejected the plaintiffs’ argument that § 2 of the Fourteenth Amendment of the U.S. Constitution, which allows disenfranchisement for “participation in rebellion, or other crime,” should be read as rebellion or other common-law felonies. The Court of Appeals held that persons subject to felon disenfranchisement must face the long shadow of Richardson v. Ramirez, 418 U.S. 24 (1974), which held that barring felons from voting is an affirmative sanction under the Fourteenth Amendment.

Next, the Ninth Circuit rejected the argument that “crime,” at the time of the Fourteenth Amendment’s drafting, was commonly understood as being restricted to common-law felonies. The Court of Appeals found no historical support for that assertion. Moreover, the Court wrote that the “better reference point for determining whether a crime is serious is to look at how the crime is designated by the modern-day legislature that proscribed it, rather than indulging the anachronisms of the common law.”

The appellate court also refused to accept the proposition that the Fourteenth Amendment’s disenfranchisement sanction should be read to conform to provisions of the Reconstruction and Enabling Acts. In addition to declining to alter the current meaning of “other crime,” the Ninth Circuit held there is no constitutional violation in requiring felons to pay fines and restitution before regaining their civil rights. See: Harvey v. Brewer, 605 F.3d 1067 (9th Cir. 2010).

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Related legal case

Harvey v. Brewer