Note | Criminal Law
Guilty Beyond a Reasonable Vote: Challenging Felony Disenfranchisement Under Section 2 of the Voting Rights Act
by Jonathan Kwortek*

From Vol. 93, No. 4 (September 2020)
93 S. Cal. L. Rev. 849 (2020)

Keywords: Felon Disenfranchisement, the Voting Rights Act

This Note argues that the Court requires a showing of disparate impact for section 2 claims—purposeful race discrimination is not the standard. This Note posits that, following the 1982 amendments to the VRA (“1982 amendment”), the court should use a Results Test (to assess such claims), which connects the challenged voting procedure to the social and historical conditions affecting minority opportunities to participate in the political process.

Section II.A examines the historical origins of felon disenfranchisement laws in the United States as well as the broader trend of racial disenfranchisement after the Civil War. Section II.B details the legal background of the VRA and congressional amendments. Section II.B subsequently argues the standard for discrimination is disparate impact under section 2 due to the 1982 amendment, which the Supreme Court affirmed through the seminal case Thornburg v. Gingles.17 The final portions of Part II cover felony disenfranchisement challenges under the Fourteenth Amendment, comparing two cases—Richardson v. Ramirez and Hunter v. Underwood.18 Part II concludes by focusing on the inconsistent application of the VRA to felon disenfranchisement statutes by federal courts.

Section III.A posits that, despite a circuit division on the issue, convicted felons have standing to bring section 2 challenges of felony disenfranchisement statutes before the courts. Section III.B suggests a proper application of the Results Test to felon disenfranchisement statutes. The Note focuses on the disparate impact the criminal justice system has on minority civil rights, in Section III.B.1, and the use of racial campaign tactics through “tough on crime” policies, in Section III.B.2.


*. Senior Editor, Southern California Law Review, Volume 93; J.D. Candidate 2020, University
of Southern California Gould School of Law. Thank you to Professor Jody Armour for his encouragement, support, and guidance during the research and drafting of this Note. Further, thank you to the editors at the Southern California Law Review for their hard work at every level of review.