Washington Law Review


In the past three years, members of Congress unsuccessfully introduced a series of federal voting rights legislation, most recently the Freedom to Vote Act. One goal of the legislation is to abolish felony disenfranchisement. Felony disenfranchisement is the practice of revoking a citizen’s right to vote due to a prior felony conviction. The Freedom to Vote Act aims to restore voting rights for every citizen who has completed their prison sentence. A ban on felony disenfranchisement would be historic, as the practice stretches back to ancient Greece and Rome. Moreover, the United States Supreme Court consistently upholds the practice by placing great weight on the Fourteenth Amendment’s allowance of disenfranchisement for “rebellion, or other crimes.”

The modern practice of felony disenfranchisement disproportionately impacts communities of color and recently prohibited over five million Americans from voting in the 2020 national election. This Comment analyzes the two most prominent constitutional arguments for Congress’s power to abolish felony disenfranchisement. Ultimately, this Comment concludes that neither the Fourteenth Amendment nor the Elections Clause is an appropriate basis for ending felony disenfranchisement. However, this Comment introduces three alternative constitutional arguments for Congress to end felony disenfranchisement.

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