Felony Disenfranchisement

By: Leslie Tartt

To: Senator Cory Booker

From: Leslie Tartt

Subject: Felony Disenfranchisement

Executive Summary

• The Problem

• Background Information

The Problem

The problem we are going to present is the issue of felony disenfranchisement in the United States. Felony disenfranchisement is the suspension or elimination of voting rights due to a felony conviction. According to the Brennen Center for Justice website, “Millions of Americans are excluded from our democratic process on the basis of criminal disenfranchisement laws.” Felony disenfranchisement takes away one of the fundamental rights that makes an American a citizen on the basis of a criminal conviction. It also raises the question: should one still face the consequences for a crime they have already been incarcerated and released for?

In addition, 46 states, as well as Washington, D.C., disallow felons from voting while they are in prison, 29 states disallow felons from voting while they are on probation, and 14 states have even further restrictions, including disallowing voting for life after a felony conviction (“Felony” 61-62). States that prohibit felons from voting for life do so without consideration for the nature of the crime they committed. “A person convicted of perjury is disenfranchised for life just the same as someone convicted of murder.” (“Felony” 62). Furthermore, felony disenfranchisement disproportionately affects African Americans. “One in every 13 voting-age African Americans cannot vote, a disenfranchisement rate more than four

times greater than that of all other Americans.” (Kelley 1). For these reasons, felony disenfranchisement must either be resolved entirely or seriously revised/reformed.

Background Information

Senator Cory Booker, you are an advocate for criminal justice reform, so you are an excellent choice to present this problem to the supreme court. You have the credentials needed to take this issue to the supreme and have the justices take you seriously. In the past, you have criticized felony disenfranchisement in the Next Step Act. You also believe that it should be prohibited for federal employers and contractors to ask an applicant about their criminal history until the final stages of the interview process. Hence, those individuals with a criminal background have a better, more objective chance at “finding meaningful employment.” (“Booker”). To be successful, you need to always keep in mind “the goal” (Heinrichs 32) and ask yourself what you want as a result. It would be ideal if your audience is receptive, attentive, and likes and trusts you. In Thank You for Arguing (4th Edition): What Aristotle, Lincoln, and Homer Simpson Can Teach Us About the Art of Persuasion by Jay Heinrichs, an audience that is receptive, attentive, and likes and trusts you is referred to as “The Perfect Audience.” (75)

You will be the underdog in this situation as the court tends to rule in favor of felony disenfranchisement. For example, in Virginia, Governor Terry McAuliffe announced that he would restore voting rights to an estimated 206,000 citizens who had already completed their felony sentences. However, many Republican legislators took issue with McAuliffe’s plans, and the plan was taken to court. The Virginia Supreme Court ruled that the governor only has the power to restore rights on an individual basis, not to a group of people as a whole. In Richardson v. Ramirez, the California class-action suit, the California Supreme Court ruled that felony

disenfranchisement did violate the Equal Protection Clause of the 14th amendment. Still, the U.S. overruled the California Supreme Court because they saw felony disenfranchisement as “exempt from the inspection for other forms of voting restrictions.” (Mauer 19).

Basically, you will be fighting to reform something that the court felt didn’t need a reformation in the past. These two examples should not be used in your argument because that would mean using the past to try to influence the future. They would be effective if the goal were to blame someone for problems stemming from felony disenfranchisement because blame is most used when arguing about the past (Heinrichs 41). Furthermore, it would mean shining a light on the fact that if the justices rule in your favor this time, they will be contradicting their past rulings. You don’t want the justices thinking so deeply about the past because they will become harder to persuade. You want the justices to be in a state of cognitive ease, meaning that their brains will be on autopilot (Heinrichs 124), and therefore, persuasion becomes more effective.

For the Supreme Court to rule in your favor, you will have to convince five out of the nine justices that felony disenfranchisement requires some form of resolution. However, it is crucial to keep in mind that the justices all have their own set of predispositions that will affect their decisions and may be inclined to react to certain stimuli in a way that might control their decisions (Ulmer 584). The current justices are Sonya Sotomayor, Elena Kagan, John Roberts, Clarence Thomas, Stephen Breyer, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. The majority of the justices are conservatives, so they will be harder to convince. Still, it is important not to assume that the more liberal justices will automatically side with you. Moreover, a justice’s social background will affect their predispositions and what criteria they use to make their decisions (Ulmer 585). Your goal is to get the justices to reach a consensus, a

general agreement, in your favor (Heinrichs 24). Ulmer says, “Before the judge can proceed to a self-determined decision, he must examine and define the situation in which the decision is to be made, and given his definition, determine the principles that are applicable.” (589). You will be successful if you can persuade five of the justices despite their predispositions and get them to come to a consensus.

The Justices

President Barack Obama nominated Justice Sonya Sotomayor in 2009, and she is the most liberal justice on the bench. She is also the first Hispanic Supreme Court Justice to serve on the highest level of court (“Ballotpedia”). She will most likely be the most straightforward justice to convince, as she previously ruled in favor of those with criminal backgrounds. For instance, in the case of Malesko v. Correctional Services Corporations, she found in favor of the inmate who was suing the Correctional Services Corporations who ran the halfway house he resided in because they were making him climb five flights of stairs every day despite his pre-existing heart problems.

Justice Elena Kagan was nominated by President Barack Obama in 2010 and is on the court’s liberal bloc (“Ballotpedia”). She is the fourth most liberal justice. On the topic of felonies, Justice Kagan has previously been more understanding and flexible about what defines a felony. She is also said to have a more pragmatic approach to law. Notably, Justice Kagan noted that “a reckless offense cannot qualify as a ‘violent felony.’” (“Ballotpedia”) in the case of Borden v. The United States.

President George W. Bush nominated Justice John Roberts in 2005. He tends to vote with the conservative bloc of the court and is said to be a “practitioner of judicial restraint.” (“Ballotpedia”). Roberts' highest agreement rate is with Justice Kavanaugh, and his lowest

agreement rate is with Justice Sotomayor. He is the fifth most conservative justice. Previously, he ruled with the more liberal bloc of the court, meaning that he could be convinced to agree with views that usually differ from his own. For instance, Justice Roberts ruled with Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor in a five to four majority opinion in Department of Homeland Security v. Regents of the University of California, determining that the Department of Homeland Security’s (DHS) choice to terminate the Deferred Action for Childhood Arrivals (DACA) program did not follow the Administrative Procedure Act (APA).

President George W. Bush nominated Justice Clarence Thomas in 1991. He is the second black justice to ever sit on the Supreme Court. He is the most conservative court justice and is known to be a “judicial conservative adhering to the principle of originalism.” (“Ballotpedia”). He will be one of the most challenging justices to persuade. However, though rarely, he has ruled with the more liberal justices. For example, he led with the majority in the case of the Armed Career Criminal Act (ACCA), finding that the ACCA “elements clause encompasses a robbery offense that requires the defendant to overcome the victim’s resistance.” (“Ballotpedia”).

President Bill Clinton nominated Justice Stephen Breyer in 1994. He is the third most liberal justice and believes in a “living constitution.” The National Public Radio (NPR) said, “Breyer argued that the founders did want a living constitution; they wrote a Constitution they wanted to last for ages. The founders knew ‘perfectly well that conditions would change.’ The values don’t change. The circumstances do.” (“Ballotpedia”). He usually rules with the liberal bloc of the court. For example, Justice Breyer ruled that the abortion law in Louisiana was unconstitutional in the case June Medicial Services LLC v. Russo (“Ballotpedia”).

Justice Neil Gorsuch was nominated by President Donald Trump in 2017. Gorsuch is the third most conservative justice with his highest agreement rate with Justice Amy Barrett. He is a Constitutional originalist because he believes the Constitution should be interpreted as it was originally written (“Ballotpedia”). Justice Gorsuch occasionally rules with the more liberal side of the bloc. For instance, he headed in a five-to-four majority opinion in the case McGirt v. Oklahoma, ruling that under the Indian Major Crimes Act, lands reserved for the Creek Nation in Oklahoma constituted Indian Country. Therefore, the state of Oklahoma can not legally try a Creek citizen for criminal conduct in state court.

Justice Brett Kavanaugh was nominated by President Donald Trump in 2018. He is the fourth most conservative justice and has his highest agreement rate with Justice John Roberts. He will be one of the more difficult justices to convince. Justice Kavanaugh ruled with the majority in the case Barton v. Barr, which upheld the cancellation-of-removal eligibility that says those with green cards could be made inadmissible to the United States for an offense after the initial residency of seven years.

President Donald Trump nominated Justice Amy Coney Barrett in 2020 to take the place of the late Justice Ruth Bader Ginsberg. She has said that her judicial philosophy is that of an originalist who interprets the Constitution based on what the words meant to the individuals who wrote it (“Ballotpedia”). She also interprets a law according to the words on the page instead of what Congress may have intended when the law was passed (“Ballotpedia”). As a conservative justice, she will be less likely to rule in your favor. When dealing with the topic of the different types of felony disenfranchisement, Justice Barrett has ruled in favor of upholding the disenfranchisement. For example, in the case, Kanter v. Barr, Justice Barrett ruled that as a convicted felon, one was ineligible to possess a firearm.

Solutions and Approach

For the justices as a whole, you can use storytelling to inform them of the history of felony disenfranchisement to change your audience’s mood (Heinrichs 106). White supremacists used felony disenfranchisement to reduce the political power of Black men who had been enfranchised by the 15th amendment (Elliot et al. 15). According to Dissent Behavior and the Social Background of Supreme Court Justices by S. Sidney Ulmer, “A judge might in a given situation be moved to respond unfavorably to the stimulus ‘Negro litigant’ but be dissuaded from doing so in a context in which such a response would bring the charge of ‘racist.’” (584). Therefore, by using storytelling, you can persuade the justices, especially those of caucasian backgrounds, that if they rule in favor of felony disenfranchisement, they will be ruling in favor of a tool for white supremacy.

Furthermore, using the same concept by Ulmer, you can argue using ethos or “argument by character” (Heinrichs 56). For instance, “One in every 13 voting-age African American cannot vote, a disenfranchisement rate more than four times that of all other Americans.” (Kelley 1). Research showing that felony disenfranchisement is racist may appeal to the justice’s character. Especially Justices Sotomayor and Thomas because they are people of color. This also makes use of what Heinrichs calls “the advantageous,” which refers to basing your argument on what’s best for your audience (133).

Patriotism will be helpful with persuading the more conservative justices like Justices Thomas, Kavanaugh, and Gorsuch based on their beliefs and to “rouse your audience’s group feelings” (112) which will then hopefully lead to a consensus. For example, if you point out that “The United States stands alone among modern democracies in stripping voting rights from millions of citizens on the basis of criminal convictions.” (Kelley 1), the justices may be

persuaded to agree with you based on the idea of another country being more fair and free due to their patriotism. Further, persuasion isn’t about what you believe it’s about the beliefs and expectations of your audience (Heinrichs 73) and because of that, patriotism works so well.

You should use emulation to strengthen your argument by using role models your audience already supports and/or admires (114). You want to make the justices empathetic towards those disenfranchised. “Empathy entails experiencing other people’s feelings.” (104). If they understand how those affected by felony disenfranchisement feel, they will be more easily persuaded that the laws need reformation. For instance, in Racism and Felony Disenfranchisement: An Intertwined History by Erin Kelley, Kelley points out that the majority of disenfranchised voters are people living in communities who work, pay taxes, and raise families (1). If the justices feel like those disenfranchised are similar to themselves, they will be more understanding and more willing to consider the reformation of the felony disenfranchisement laws. Furthermore, emulation may persuade the justices because of their values. “Clearly, if you want to pack your own ethos with persuasive virtue, you need to determine your audience’s values and then appear to live up to them.” (Heinrichs 80)

In addition, using a limited amount of pathos can be very effective in persuading the justices. Pathos is “argument by emotion.” (Heinrichs 57). Using too much pathos in a professional setting such as the Supreme Court may have negative effects on your argument, but when used in the right place, pathos can push the justices to rule in your favor on the basis of their emotions because of their predispositions. For example, to invoke an emotional response, you could refer to felony disenfranchisement as “Civil Death.” (Mauer 14). Strong words like “civil” and “death” will invoke an emotional response in the justices especially because of their role in society. As Heinrichs put it, “Emotion comes from experience and expectation—what

your audience believes has happened, or will take place in the future. The more vividly you give the audience sensations of an experience, the greater the emotion you can arouse.” (105).

Conclusion

Utilizing all of these techniques should help you persuade the justices to rule in your favor and make them agree that felony disenfranchisement is an unfair process. Further, because of your activeness in the Criminal Justice Reform movement, you will have more credibility in court. It is imperative that you state the facts clearly and focus on appealing to each judge. You don’t have to convince all of them, but you need to persuade the majority. As mentioned before, you need to keep in mind your end goal: reform or remove felony disenfranchisement laws. However, most importantly, remember that in an argument, your true goal is to win over your audience (Heinrichs 28).