Frank Askin: Rehnquist's legacy still haunts those who finish their prison sentence yet still can't vote

[Frank Askin is professor of law at Rutgers University School of Law-Newark and a general counsel of the American Civil Liberties Union. He is the author of Defending Rights: A Life in Law and Politics (1997).]

It is refreshing to see that the unsavory history of our late Chief Justice William Rehnquist is at last getting a fresh examination as a consequence of the release of FBI files in January under the Freedom of Information Act.

It is particularly noteworthy that the files reveal how Rehnquist’s friends at the FBI (read J. Edgar Hoover) tried to protect Rehnquist at his 1986 Senate confirmation hearings for chief justice from allegations that as a young Republican lawyer in Phoenix he worked to keep Hispanic voters from casting ballots. The allegation about Rehnquist’s conduct is not new, but the fact that the FBI tried to intimidate witnesses into not testifying about it is.

The new revelations show just how courageous former Assistant U.S. Attorney James Brosnahan was when he stepped forward to tell the Senate Judiciary Committee how he confronted Rehnquist at a Phoenix polling place in 1962. Brosnahan testified that he warned Rehnquist that voter intimidation was a violation of federal law.

Noting that Rehnquist had denied the allegations in his own testimony, Brosnahan told the senators, “This does not comport with my recollection of the events I witnessed in 1962, when Mr. Rehnquist served as a challenger.”


But it is important to keep in mind that this is not ancient history. After the Senate went ahead and confirmed him as a justice in 1971, Rehnquist crafted a doctrine that to this day bars some 5 million Americans, disproportionately African-American and Hispanic, from voting.

It was Rehnquist’s opinion in 1974, in Richardson v. Ramirez, that has allowed 48 of our 50 states and the District of Columbia to bar anyone convicted of a crime from voting. Thirty-five of those states continue the practice even after the offender has completed his sentence.

It was Rehnquist’s cynical sleight of hand in Ramirez that reinterpreted Section 2 of the 14th Amendment, adopted right after the Civil War. Rehnquist transformed it from a prohibition on states’ barring ex-slaves from voting into an authorization to do so — so long as the states first arrested them and convicted them of a crime.

The language of Section 2 of the 14th Amendment is straightforward. It provides that any state prohibiting ex-slaves from voting would have its congressional representation proportionately reduced. It also had an exception “for participation in rebellion or other crime.” Despite the fact that practically no blacks were permitted to vote in the former Confederate states for the next 100 years, no state ever lost a single seat in Congress.

But in Ramirez, Rehnquist found a use for Section 2. He ruled that it was an affirmative authorization for the states to disfranchise blacks — and anyone else — so long as the states first convicted them of a crime. Thus, he said, the proviso in Section 2, intended to reduce a state’s representation in Congress, also provided the states an exception from Section 1 of the 14th Amendment, which forbids any state from denying any group the equal protection of the laws.

As Justice Thurgood Marshall said in dissent in Ramirez, this was in direct disregard of the “historical purpose” of the Section 2 proviso, which was to “put Southern States to a choice — enfranchise Negro voters or lose congressional representation.” ...

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Vernon Clayson - 3/4/2007

The subject of this article is beyond nonsense, no felon enters into a crime concerned that if apprehended he will be unable to vote. No incarcerated felon concerns himself for a second that he will be unable to vote when he is released. No felon upon his release from incarceration thinks he must rush to register so he can vote. No felon believes that a big part of his rehabilitation is getting to a polling place. To conclude my thoughts on this read the foregoing and insert recidivist where I have used the word felon.

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