RICHARDSON v. RAMIREZ(1974)

No. 72-1589

Argued: January 15, 1974Decided: June 24, 1974

After the three individual respondents, who had been convicted of felonies and had completed their sentences and paroles, were refused registration to vote in three different California counties respectively because of their felony convictions, they brought a class petition, on behalf of themselves and all other ex-felons similarly situated, for a writ of mandate in the California Supreme Court, naming as defendants the Secretary of State and the three county election officials who had denied them registration “individually and as representatives of the class of all other” county election officials in the State, and challenging the constitutionality of respondents’ disenfranchisement on the ground, inter alia, that provisions of the California Constitution and the implementing statutes that disenfranchised ex-felons denied them equal protection. The three county officials named as defendants decided not to contest the action and told the court they would henceforth register to vote ex-felons, including respondents, whose sentences and paroles had expired. Prior to the return date of the writ, the court added to the named defendants (instead of allowing her to intervene) another county election official (petitioner here) who was the defendant in a similar action by an ex-felon pending in the State Court of Appeal. After holding that the three first-named county officials’ acquiescence did not render the case moot, the California Supreme Court went on to hold that the constitutional and statutory provisions in question, as applied to ex-felons whose sentences and paroles had expired, violated the Equal Protection Clause of the Fourteenth Amendment, but did not issue the peremptory writ. Held:

1. In view of its unusual procedural history in the Supreme Court of California, the case is not moot. Pp. 34-40.

[418 U.S. 24, 25]

State (who did not join in the petition to this Court) was still a party defendant who had answered the complaint, indicates that the court considered the suit to be not only on behalf of the three named plaintiffs, but also on behalf of all ex-felons in California similarly situated, and also that the court regarded petitioner’s opponent in the Court of Appeal suit, both as an unnamed member of the class of ex-felons referred to in the complaint and as one of a class actually seeking to register in petitioner’s county, as a party to the Supreme Court action. Pp. 38-40.

(b) Being rendered in a class action in which relief in the nature of declaratory relief was granted, the decision below is not only binding on petitioner and thus dispositive of her other suit, but also decides the federal constitutional question presented for the unnamed members of the classes represented below by petitioner and respondents, whose continuing controversy in the State Supreme Court still continues in this Court. Brockington v. Rhodes, 396 U.S. 41 , distinguished. P. 40.

2. California, in disenfranchising convicted felons who have completed their sentences and paroles, does not violate the Equal Protection Clause. Pp. 41-56.

(a) The understanding of the framers of the Fourteenth Amendment, as reflected in the express language of 2 of the Amendment, which exempts from the sanction of reduced congressional representation resulting from the denial of citizens’ right to vote, the denial of such right for “participation in rebellion, or other crime,” and in the historical and judicial interpretation of the Amendment’s applicability to state laws disenfranchising felons, is of controlling significance in distinguishing such laws from those other state limitations on the franchise that this Court has held invalid under the Equal Protection Clause. Pp. 54-55.

(b) Section 1 of the Fourteenth Amendment, which contains the Equal Protection Clause, in dealing with voting rights as it does, could not have been meant to bar outright a form of disenfranchisement that was expressly exempted from the less drastic sanction of reduced representation that 2 imposed for other forms of disenfranchisement. P. 55.

[418 U.S. 24, 26]

as any of the other sections, and how it became part of the Amendment is less important than what it says and what it means. P. 55.

9 Cal. 3d 199, 507 P.2d 1345, reversed and remanded.

REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, WHITE, BLACKMUN, and POWELL, JJ., joined. DOUGLAS, J., filed a dissenting statement, post, p. 86. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined and in Part I-A of which DOUGLAS, J., joined, post, p. 56.

Duncan M. James argued the cause and filed briefs for petitioner.

Martin R. Glick argued the cause for respondents. With him on the brief were Gene Livingston and Burton D. Fretz. Daniel Hays Lowenstein filed a brief for respondent Brown, Secretary of State of California. *

[ Footnote * ] Evelle J. Younger, Attorney General, Iver E. Skjeie, Assistant Attorney General, and George J. Roth, Deputy Attorney General, filed a brief for the State of California as amicus curiae urging reversal.

Briefs of amici curiae urging affirmance were filed by Chesterfield Smith and Daniel L. Skoler for the American Bar Assn., and by Philip L. Goar, A. L. Wirin, and Fred Okrand for the American Civil Liberties Union of Southern California.

MR. JUSTICE REHNQUIST delivered the opinion of the Court.

The three individual respondents in this case were convicted of felonies and have completed the service of their respective sentences and paroles. They filed a petition for a writ of mandate in the Supreme Court of California to compel California county election officials to register them as voters. 1 They claimed, on behalf of [418 U.S. 24, 27] themselves and others similarly situated, that application to them of the provisions of the California Constitution and implementing statutes which disenfranchised persons convicted of an “infamous crime” denied them the right to equal protection of the laws under the Federal Constitution. The Supreme Court of California held that “as applied to all ex-felons whose terms of incarceration and parole have expired, the provisions of article II and article XX, section 11, of the California Constitution denying the right of suffrage to persons convicted of crime, together with the several sections of the Elections Code implementing that disqualification . . ., violate the equal protection clause of the Fourteenth Amendment.” Ramirez v. Brown, 9 Cal. 3d 199, 216-217, 507 P.2d 1345, 1357 (1973). We granted certiorari, 414 U.S. 816 (1973).

Article XX, 11, of the California Constitution has provided since its adoption in 1879 that “[l]aws shall be made” to exclude from voting persons convicted of bribery, perjury, forgery, malfeasance in office, “or other high crimes.” At the time respondents were refused registration, former Art. II, 1, of the California Constitution provided in part that “no alien ineligible to citizenship, no idiot, no insane person, no person convicted of any infamous crime, no person hereafter convicted of the embezzlement or misappropriation of public money, and no person who shall not be able to read the Constitution in the English language and write his or her name, shall ever exercise the privileges of an elector [418 U.S. 24, 28] in this State.” 2 Sections 310 and 321 of the California Elections Code provide that an affidavit of registration shall show whether the affiant has been convicted of “a felony which disqualifies [him] from voting.” 3 Sections 383, 389, and 390 direct the county clerk to cancel the registration of all voters who have been convicted of “any infamous crime or of the embezzlement or misappropriation of any public money.” 4 Sections 14240 and [418 U.S. 24, 29] 14246 permit a voter’s qualifications to be challenged on the ground that he has been convicted of “a felony” or of “the embezzlement or misappropriation of public money.” 5 California provides by statute for restoration of the right to vote to persons convicted of crime either [418 U.S. 24, 30] by court order after the completion of probation, 6 or, if a prison term was served, by executive pardon after completion of rehabilitation proceedings. 7 California also provides a procedure by which a person refused [418 U.S. 24, 31] registration may obtain judicial review of his disqualification. 8

Each of the individual respondents was convicted of one or more felonies, and served some time in jail or prison followed by a successfully terminated parole. Respondent Ramirez was convicted in Texas; respondents Lee and Gill were convicted in California. When Ramirez applied to register to vote in San Luis Obispo County, the County Clerk refused to allow him to register. The Monterey County Clerk refused registration to respondent Lee, and the Stanislaus County Registrar of [418 U.S. 24, 32] Voters (hereafter also included in references to clerks) refused registration to respondent Gill. All three respondents were refused registration because of their felony convictions. 9

In May 1972 respondents filed a petition for a writ of mandate in the Supreme Court of California, invoking its original jurisdiction. 10 They named as defendants 11 below the three election officials of San Luis Obispo, [418 U.S. 24, 33] Monterey, and Stanislaus Counties who had refused to allow them to register, “individually and as representatives of the class of all other County Clerks and Registrars of Voters who have the duty of determining for their respective counties whether any ex-felon will be denied the right to vote.” The petition for a writ of mandate challenged the constitutionality of respondents’ exclusion from the voting rolls on two grounds. First, it was contended that California’s denial of the franchise to the class of ex-felons could no longer withstand scrutiny under the Equal Protection Clause of the Fourteenth Amendment. Relying on the Court’s recent voting-rights cases, respondents argued that a compelling state interest must be found to justify exclusion of a class from the franchise, and that California could assert no such interest with respect to ex-felons. Second, respondents contended that application of the challenged California constitutional and statutory provisions by election officials of the State’s 58 counties was so lacking in uniformity as to deny them due process and “geographical . . . equal protection.” They appended a report by respondent California Secretary of State, and the questionnaires returned by county election officials on which it was based. The report concluded that there was wide variation in the county election officials’ interpretation of the challenged voting exclusions. 12 The Supreme [418 U.S. 24, 34] Court of California upheld the first contention and therefore did not reach the second one.

I

Before reaching respondents’ constitutional challenge, the Supreme Court of California considered whether a decision reached by the three county clerks not to contest the action, together with their representation to the court that they would henceforth permit all ex-felons whose terms of incarceration and parole had expired to register and vote, rendered this case moot. That court decided that it did not. The acquiescence of the three officials was in no way binding on election officials of the other 55 California counties in which respondents might choose to reside, and it was undisputed that there were many ex-felons among the residents of those counties who had been or would be refused registration on the ground challenged. Because the case posed a question of broad public interest, which was likely to recur and which should receive a statewide resolution, the court exercised its “inherent discretion to resolve the issue, `even though an event occurring during its pendency would normally render the matter moot.’ . . . This rule is particularly applicable to challenges to the validity of election laws.” 9 Cal. 3d, at 203, 507 P.2d, at 1347. In addition to California cases, the court cited Roe v. Wade, 410 U.S. 113 (1973), and Goosby v. Osser, 409 U.S. 512 (1973). [418 U.S. 24, 35]

As a practical matter, there can be no doubt that there is a spirited dispute between the parties in this Court as to the constitutionality of the California provisions disenfranchising ex-felons. Even though the Supreme Court of California did not in fact issue a permanent writ of mandate, and therefore its judgment is in effect a declaratory judgment, an action for such relief may stem from a controversy that is “definite and concrete, touching the legal relations of parties having adverse legal interests.” Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 240 -241 (1937). By reason of the special relationship of the public officials in a State to the court of last resort of that State, the decision of the Supreme Court of California, if left standing, leaves them permanently bound by its conclusion on a matter of federal constitutional law. Cf. North Dakota Pharmacy Bd. v. Snyder’s Stores, 414 U.S. 156 (1973).

This case in some respects presents stronger arguments for concluding that a live case or controversy remains than in other election cases in which we have addressed the question of mootness. Unlike Moore v. Ogilvie, 394 U.S. 814 (1969), in which the particular candidacy was not apt to be revived in a future election, or Hall v. Beals, 396 U.S. 45 (1969), in which the voters who had been disenfranchised because of a residence requirement would not have suffered the same fate under the amended statute, respondents here are indefinitely disenfranchised by the provisions of California law which they challenge. While the situation in Moore v. Ogilvie, supra, was described as “`capable of repetition, yet evading review,'” 394 U.S., at 816 , that involved here can best be described, in view of the Supreme Court of California’s decision against the state officials and their obligation to follow the law as laid down by that court, as “incapable of repetition,” and therefore evading review. There are thus the strongest sorts of practical arguments, as well as the language [418 U.S. 24, 36] of Moore v. Ogilvie, supra, which militate against a conclusion of mootness in this case.

But purely practical considerations have never been thought to be controlling by themselves on the issue of mootness in this Court. While the Supreme Court of California may choose to adjudicate a controversy simply because of its public importance, and the desirability of a statewide decision, we are limited by the case-or-controversy requirement of Art. III to adjudication of actual disputes between adverse parties.

The mootness problem here arises because, as it noted, the Supreme Court of California was assured by the three county clerks who were named as defendants that the three named plaintiffs would be allowed to register and vote. The three named plaintiffs resided respectively in the California counties of San Luis Obispo, Monterey, and Stanislaus, and the county clerks of those counties who were named as defendants neither defended the action in the Supreme Court of California nor sought review here. Petitioner here is the County Clerk of Mendocino County, who though of course bound by the judgment of the Supreme Court of California, since she was made a party to that action, has no concrete dispute with voters who reside in other counties. Thus if the case were limited to the named parties alone, it could be persuasively argued that there was no present dispute on the issue of the right to register between the three named individual respondents in this Court and the one named petitioner here.

We think, however, that the unusual procedural history of the case in the Supreme Court of California leads to the conclusion that the litigation before us is not moot. The individual named plaintiffs brought their action in the Supreme Court of California on behalf of themselves and all other ex-felons similarly situated, and not simply [418 U.S. 24, 37] those ex-felons residing in the counties in which the named plaintiffs resided. While only the county clerks of Stanislaus, Monterey, and San Luis Obispo were named parties defendant, they were designated in the original complaint filed in the Supreme Court of California “as representatives of the class of all other County Clerks.” The California Secretary of State was likewise named a party defendant. On the basis of this complaint, the Supreme Court of California issued an alternative writ of mandate directed to the three named county clerks “individually and as representatives of the class of all other County Clerks and Registrars of Voters,” directing them to register to vote not simply the three named plaintiffs, but “all ex-felons whose term of incarceration and parole have expired and who upon application demonstrate that they are otherwise fully qualified to vote,” or in the alternative to show cause why they had not done so upon the return date of the writ. Thus, while the Supreme Court of California did not in so many words say that it was permitting respondents to proceed by way of a “class action,” the fact that the court’s process recited that the named clerks were subject to it “individually and as representatives of the class of all other County Clerks and Registrars of Voters,” and the fact that the beneficiaries of that process were not merely the named plaintiffs but “all ex-felons whose term of incarceration and parole [had] expired . . .” indicates that the court treated the action as one brought for the benefit of the class described in the petition for the writ of mandate.

Petitioner Viola Richardson, the County Clerk of Mendocino County, filed a complaint in intervention in the action in the Supreme Court of California, alleging that the suit as framed by the named plaintiffs was collusive, in that neither the three named county clerks nor the Secretary of State could be expected to contest the claims [418 U.S. 24, 38] of plaintiffs. Petitioner Viola Richardson further alleged in her complaint of intervention that she was a party to a lawsuit brought against her by an ex-felon (also named Richardson) who had sought to register in Mendocino County, had been denied the right, and whose suit seeking to establish the right was then pending in the State Court of Appeal.

The county clerks actually named as defendants in the mandate action each obeyed the alternative writ issued by the Supreme Court of California, and did not contest the named plaintiffs’ legal claim that they had a right to vote secured by the Equal Protection Clause of the Fourteenth Amendment which overrode the contrary provisions of the California Constitution. The Secretary of State appeared in the action and generally denied the named plaintiffs’ essential claims.

The Supreme Court of California, prior to the return date of the writ, issued an order denying petitioner Richardson’s motion to intervene, but instead ordered her added to the named defendants in the action along with the three other named county clerks and the Secretary of State. This action in the Supreme Court of California, coming as it did after the acquiescence of the named clerks in the counties in which the named plaintiffs resided, and yet at a time when the Secretary of State was still a party defendant who had answered the complaint, clearly indicates to us that that court considered the action to be not only on behalf of the three named plaintiffs, but also on behalf of all ex-felons in California similarly situated. We are reinforced in this conclusion by the language quoted above from the alternative writ of mandate issued by the Supreme Court of California. Had the Supreme Court of California based its action on petitioner Richardson’s claim that the suit was collusive, and that it might become a binding precedent in [418 U.S. 24, 39] her litigation then pending in the State Court of Appeal, it would seem to have been sufficient to grant the motion to intervene. But the court’s action adding petitioner Richardson as a named defendant would appear to have been based on its conclusion that at least some members of the class represented by the plaintiffs in fact resided in Mendocino County, and were there seeking to exercise their right to vote. In reaching such a conclusion, of course, the Supreme Court of California had before it petitioner Richardson’s allegation that at least her opponent in the litigation pending in the Court of Appeal was not merely seeking to register to vote in Mendocino County, but had brought a lawsuit to enforce his claim.

At the time petitioner Richardson was added as a party defendant, the three named plaintiffs had obtained the relief which they sought, whereas the remaining members of the class, including petitioner Richardson’s opponent in the Court of Appeal litigation, had not. We have held that in the federal system one may not represent a class of which he is not a part, Bailey v. Patterson, 369 U.S. 31, 32 -33 (1962), and if this action had arisen in the federal courts there would be serious doubt as to whether it could have proceeded as a class action on behalf of the class of ex-felons denied the right to register after the three named plaintiffs had been granted that right. Indiana Employment Security Div. v. Burney, 409 U.S. 540 (1973). But California is at liberty to prescribe its own rules for class actions, subject only to whether limits may be imposed by the United States Constitution, and we interpret its action in adding petitioner Richardson as a defendant to mean that it regarded her opponent in the Court of Appeal litigation, both as an unnamed member of the class of ex-felons referred to in the mandate complaint, and as one of a class actually seeking to register in Mendocino County, [418 U.S. 24, 40] as a party to the action in the Supreme Court of California, albeit an unnamed one.

In Brockington v. Rhodes, 396 U.S. 41 (1969), we emphasized in finding the case moot that appellant’s “suit did not purport to be a class action, and he sought no declaratory relief.” Id., at 42. We said:

“[I]n view of the limited nature of the relief sought, we think the case is moot because the congressional election is over. The appellant did not allege that he intended to run for office in any future election. He did not attempt to maintain a class action on behalf of himself and other putative independent candidates, present or future. He did not sue for himself and others similarly situated as independent voters, as he might have under Ohio law. . . . He did not seek a declaratory judgment, although that avenue too was open to him. . . .” Id., at 43.

Here, unlike Brockington, there was a class action, and relief in the nature of declaratory relief was granted. The decision below is not only binding on petitioner Richardson, and thus dispositive of her other Court of Appeal litigation, but also decides the federal constitutional question presented for the unnamed members of the classes represented below by petitioner and respondents, whose continuing controversy led the Supreme Court of California to conclude that this case was not moot.

The briefs of the parties before us indicate that the adverse alignment in the Supreme Court of California continues in this Court, and we therefore hold the case is not moot. 13 [418 U.S. 24, 41]

II

Unlike most claims under the Equal Protection Clause, for the decision of which we have only the language of the Clause itself as it is embodied in the Fourteenth [418 U.S. 24, 42] Amendment, respondents’ claim implicates not merely the language of the Equal Protection Clause of 1 of the Fourteenth Amendment, but also the provisions of the less familiar 2 of the Amendment:

[418 U.S. 24, 43]

of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.” (Emphasis supplied.)

Petitioner contends that the italicized language of 2 expressly exempts from the sanction of that section disenfranchisement grounded on prior conviction of a felony. She goes on to argue that those who framed and adopted the Fourteenth Amendment could not have intended to prohibit outright in 1 of that Amendment that which was expressly exempted from the lesser sanction of reduced representation imposed by 2 of the Amendment. This argument seems to us a persuasive one unless it can be shown that the language of 2, “except for participation in rebellion, or other crime,” was intended to have a different meaning than would appear from its face.

The problem of interpreting the “intention” of a constitutional provision is, as countless cases of this Court recognize, a difficult one. Not only are there deliberations of congressional committees and floor debates in the House and Senate, but an amendment must thereafter be ratified by the necessary number of States. The legislative history bearing on the meaning of the relevant language of 2 is scant indeed; the framers of the Amendment were primarily concerned with the effect of reduced representation upon the States, rather than with the two forms of disenfranchisement which were exempted from that consequence by the language with which we are concerned here. Nonetheless, what legislative history there is indicates that this language was intended by Congress to mean what it says.

A predecessor of 2 was contained in an earlier draft of the proposed amendment, which passed the House of Representatives, but was defeated in the Senate early in 1866. The Joint Committee of Fifteen on Reconstruction [418 U.S. 24, 44] then reconvened, and for a short period in April 1866, revised and redrafted what ultimately became the Fourteenth Amendment. The Journal of that Committee’s proceedings shows only what motions were made and how the various members of the Committee voted on the motions; it does not indicate the nature or content of any of the discussion in the Committee. While the Journal thus enables us to trace the evolution of the draft language in the Committee, it throws only indirect light on the intention or purpose of those who drafted 2. See B. Kendrick, Journal of the Joint Committee of Fifteen on Reconstruction 104-120 (1914).

We do know that the particular language of 2 upon which petitioner relies was first proposed by Senator Williams of Oregon to a meeting of the Joint Committee on April 28, 1866. Senator Williams moved to strike out what had been 3 of the earlier version of the draft, and to insert in place thereof the following:

“Representatives shall be apportioned among the several states which may be included within this Union according to their respective numbers, counting the whole number of persons in each State excluding Indians not taxed. But whenever in any State the elective franchise shall be denied to any portion of its male citizens, not less than twenty-one years of age, or in any way abridged, except for participation in rebellion or other crime, the basis of representation in such State shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens not less than twenty-one years of age.” Id., at 102.

The Joint Committee approved this proposal by a lopsided margin, and the draft Amendment was reported to the House floor with no change in the language of 2. [418 U.S. 24, 45]

Throughout the floor debates in both the House and the Senate, in which numerous changes of language in 2 were proposed, the language “except for participation in rebellion, or other crime” was never altered. The language of 2 attracted a good deal of interest during the debates, but most of the discussion was devoted to its foreseeable consequences in both the Northern and Southern States, and to arguments as to its necessity or wisdom. What little comment there was on the phrase in question here supports a plain reading of it.

Congressman Bingham of Ohio, who was one of the principal architects of the Fourteenth Amendment and an influential member of the Committee of Fifteen, commented with respect to 2 as follows during the floor debates in the House:

“The second section of the amendment simply provides for the equalization of representation among all the States of the Union, North, South, East, and West. It makes no discrimination. New York has a colored population of fifty thousand. By this section, if that great State discriminates against her colored population as to the elective franchise, (except in cases of crime,) she loses to that extent her representative power in Congress. So also will it be with every other State.” Cong. Globe, 39th Cong., 1st Sess., 2543 (1866).

Two other Representatives who spoke to the question made similar comments. Representative Eliot of Massachusetts commented in support of the enactment of 2 as follows:

[418 U.S. 24, 46]

participation in rebellion or other crime, it is to be hoped that political interests may work in the line of justice, and that the end will be the impartial enfranchisement of all citizens not disqualified by crime.” Id., at 2511.

Representative Eckley of Ohio made this observation:

“Under a congressional act persons convicted of a crime against the laws of the United States, the penalty for which is imprisonment in the penitentiary, are now and always have been disfranchised, and a pardon did not restore them unless the warrant of pardon so provided.

“. . . But suppose the mass of the people of a State are pirates, counterfeiters, or other criminals, would gentlemen be willing to repeal the laws now in force in order to give them an opportunity to land their piratical crafts and come on shore to assist in the election of a President or members of Congress because they are numerous? And let it be borne in mind that these latter offenses are only crimes committed against property; that of treason is against the nation, against the whole people – the highest known to the law.” Id., at 2535.

The debates in the Senate did not cover the subject as exhaustively as did the debates in the House, apparently because many of the critical decisions were made by the Republican Senators in an unreported series of caucuses off the floor. Senator Saulsbury of Delaware, a Democrat who was not included in the majority caucus, observed:

[418 U.S. 24, 47]

for several days in reference to these amendments, and have held some four or five caucuses on the subject.” Id., at 2869.

Nonetheless, the occasional comments of Senators on the language in question indicate an understanding similar to that of the House members. Senator Johnson of Maryland, one of the principal opponents of the Fourteenth Amendment, made this argument:

“Now it is proposed to deny the right to be represented of a part, simply because they are not permitted to exercise the right of voting. You do not put them upon the footing of aliens, upon the footing of rebels, upon the footing of minors, upon the footing of the females, upon the footing of those who may have committed crimes of the most heinous character. Murderers, robbers, houseburners, counterfeiters of the public securities of the United States, all who may have committed any crime, at any time, against the laws of the United States or the laws of a particular State, are to be included within the basis; but the poor black man, unless he is permitted to vote, is not to be represented, and is to have no interest in the Government.” Id., at 3029.

Senator Henderson of Missouri, speaking in favor of the version of 2 which had been reported by the Joint Committee in April, as opposed to the earlier provision of the proposal which had been defeated in the Senate, said this:

[418 U.S. 24, 48]

an educational test and yet retained their power in Congress. Under this they cannot. For all practical purposes, under the former proposition loss of representation followed the disfranchisement of the negro only; under this it follows the disfranchisement of white and black, unless excluded on account of `rebellion or other crime.'” Id., at 3033.

Further light is shed on the understanding of those who framed and ratified the Fourteenth Amendment, and thus on the meaning of 2, by the fact that at the time of the adoption of the Amendment, 29 States had provisions in their constitutions which prohibited, or authorized the legislature to prohibit, exercise of the franchise by persons convicted of felonies or infamous crimes. 14

More impressive than the mere existence of the state constitutional provisions disenfranchising felons at the time of the adoption of the Fourteenth Amendment is the congressional treatment of States readmitted to the Union following the Civil War. For every State thus readmitted, affirmative congressional action in the form of an enabling act was taken, and as a part of the [418 U.S. 24, 49] readmission process the State seeking readmission was required to submit for the approval of the Congress its proposed state constitution. In March 1867, before any State was readmitted, Congress passed “An act to provide for the more efficient Government of the Rebel States,” the so-called Reconstruction Act. Act of Mar. 2, 1867, c. 153, 14 Stat. 428. Section 5 of the Reconstruction Act established conditions on which the former Confederate States would be readmitted to representation in Congress. It provided:

[418 U.S. 24, 50]

of the United States, said State shall be declared entitled to representation in Congress, and senators and representatives shall be admitted therefrom on their taking the oath prescribed by law, and then and thereafter the preceding sections of this act shall be inoperative in said State . . . .” (Emphasis supplied.)

Section 5 was introduced as a Senate amendment to the House bill, which was concerned only with the establishment of military government in the former Confederate States. Cong. Globe, 39th Cong., 2d Sess., 1360-1361 (1867). The legislative history of the Reconstruction Act was recounted by Senator Henderson of Missouri, who ultimately voted for it:

“As the bill originally came from the House it was a bald and naked proposition to establish without limitation of power or the time of its duration a purely military government for the ten States now unrepresented. This, in my judgment, was a most dangerous experiment. . . .

[418 U.S. 24, 51]

part of the Constitution of the United States, then military law should cease and the States should be admitted, provided that Congress even then should see fit to receive them.” Id., at 1641.

A series of enabling acts in 1868 and 1870 admitted those States to representation in Congress. The Act admitting Arkansas, the first State to be so admitted, attached a condition to its admission. Act of June 22, 1868, c. 69, 15 Stat. 72. That Act provided:

“WHEREAS the people of Arkansas, in pursuance of the provisions of an act entitled `An act for the more efficient government of the rebel States,’ passed March second, eighteen hundred and sixty-seven, and the act supplementary thereto, have framed and adopted a constitution of State government, which is republican, and the legislature of said State has duly ratified the amendment to the Constitution of the United States proposed by the Thirty-ninth Congress, and known as article fourteen: Therefore,

[418 U.S. 24, 52]

The phrase “under laws equally applicable to all the inhabitants of said State” was introduced as an amendment to the House bill by Senator Drake of Missouri. Cong. Globe, 40th Cong., 2d Sess., 2600 (1868). Senator Drake’s explanation of his reason for introducing his amendment is illuminating. He expressed concern that without that restriction, Arkansas might misuse the exception for felons to disenfranchise Negroes:

“There is still another objection to the condition as expressed in the bill, and that is in the exception as to the punishment for crime. The bill authorizes men to be deprived of the right to vote `as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted.’ There is one fundamental defect in that, and that is that there is no requirement that the laws under which men shall be duly convicted of these crimes shall be equally applicable to all the inhabitants of the State. It is a very easy thing in a State to make one set of laws applicable to white men, and another set of laws applicable to colored men.” Ibid.

The same “fundamental condition” as was imposed by the act readmitting Arkansas was also, with only slight variations in language, imposed by the Act readmitting North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida, enacted three days later. Act of June 25, 1868, c. 70, 15 Stat. 73. That condition was again imposed by the Acts readmitting Virginia, Mississippi, Texas, and Georgia early in 1870. Act of Jan. 26, 1870, c. 10, 16 Stat. 62; Act of Feb. 1, 1870, c. 12, 16 Stat. 63; Act of Feb. 23, 1870, c. 19, 16 Stat. 67; Act of Mar. 30, 1870, c. 39, 16 Stat. 80; Act of July 15, 1870, c. 299, 16 Stat. 363. [418 U.S. 24, 53]

This convincing evidence of the historical understanding of the Fourteenth Amendment is confirmed by the decisions of this Court which have discussed the constitutionality of provisions disenfranchising felons. Although the Court has never given plenary consideration to the precise question of whether a State may constitutionally exclude some or all convicted felons from the franchise, we have indicated approval of such exclusions on a number of occasions. In two cases decided toward the end of the last century, the Court approved exclusions of bigamists and polygamists from the franchise under territorial laws of Utah and Idaho. Murphy v. Ramsey, 114 U.S. 15 (1885); Davis v. Beason, 133 U.S. 333 (1890). Much more recently we have strongly suggested in dicta that exclusion of convicted felons from the franchise violates no constitutional provision. In Lassiter v. Northampton County Board of Elections, 360 U.S. 45 (1959), where we upheld North Carolina’s imposition of a literacy requirement for voting, the Court said, id., at 51:

“Residence requirements, age, previous criminal record (Davis v. Beason, 133 U.S. 333, 345 -347) are obvious examples indicating factors which a State may take into consideration in determining the qualifications of voters.”

Still more recently, we have summarily affirmed two decisions of three-judge District Courts rejecting constitutional challenges to state laws disenfranchising convicted felons. Fincher v. Scott, 352 F. Supp. 117 (MDNC 1972), aff’d, 411 U.S. 961 (1973); Beacham v. Braterman, 300 F. Supp. 182 (SD Fla.). aff’d, 396 U.S. 12 (1969). Both District Courts relied on Green v. Board of Elections, 380 F.2d 445 (1967), cert. denied, 389 U.S. 1048 (1968), where the Court of Appeals for the [418 U.S. 24, 54] Second Circuit held that a challenge to New York’s exclusion of convicted felons from the vote did not require the convening of a three-judge district court.

Despite this settled historical and judicial understanding of the Fourteenth Amendment’s effect on state laws disenfranchising convicted felons, respondents argue that our recent decisions invalidating other state-imposed restrictions on the franchise as violative of the Equal Protection Clause require us to invalidate the disenfranchisement of felons as well. They rely on such cases as Dunn v. Blumstein, 405 U.S. 330 (1972), Bullock v. Carter, 405 U.S. 134 (1972), Kramer v. Union Free School District, 395 U.S. 621 (1969), and Cipriano v. City of Houma, 395 U.S. 701 (1969), to support the conclusions of the Supreme Court of California that a State must show a “compelling state interest” to justify exclusion of ex-felons from the franchise and that California has not done so here.

As we have seen, however, the exclusion of felons from the vote has an affirmative sanction in 2 of the Fourteenth Amendment, a sanction which was not present in the case of the other restrictions on the franchise which were invalidated in the cases on which respondents rely. We hold that the understanding of those who adopted the Fourteenth Amendment, as reflected in the express language of 2 and in the historical and judicial interpretation of the Amendment’s applicability to state laws disenfranchising felons, is of controlling significance in distinguishing such laws from those other state limitations on the franchise which have been held invalid under the Equal Protection Clause by this Court. We do not think that the Court’s refusal to accept Mr. Justice Harlan’s position in his dissents in Reynolds v. Sims, 377 U.S. 533, 589 (1964), and Carrington v. Rash, 380 U.S. 89, 97 (1965), that 2 is the only part of the Amendment [418 U.S. 24, 55] dealing with voting rights, dictates an opposite result. We need not go nearly so far as Mr. Justice Harlan would to reach our conclusion, for we may rest on the demonstrably sound proposition that 1, in dealing with voting rights as it does, could not have been meant to bar outright a form of disenfranchisement which was expressly exempted from the less drastic sanction of reduced representation which 2 imposed for other forms of disenfranchisement. Nor can we accept respondents’ argument that because 2 was made part of the Amendment “`largely through the accident of political exigency rather than through the relation which it bore to the other sections of the Amendment,'” we must not look to it for guidance in interpreting 1. It is as much a part of the Amendment as any of the other sections, and how it became a part of the Amendment is less important than what it says and what it means.

Pressed upon us by the respondents, and by amici curiae, are contentions that these notions are outmoded, and that the more modern view is that it is essential to the process of rehabilitating the ex-felon that he be returned to his role in society as a fully participating citizen when he has completed the serving of his term. We would by no means discount these arguments if addressed to the legislative forum which may properly weigh and balance them against those advanced in support of California’s present constitutional provisions. But it is not for us to choose one set of values over the other. If respondents are correct, and the view which they advocate is indeed the more enlightened and sensible one, presumably the people of the State of California will ultimately come around to that view. And if they do not do so, their failure is some evidence, at least, of the fact that there are two sides to the argument. [418 U.S. 24, 56]

We therefore hold that the Supreme Court of California erred in concluding that California may no longer, consistent with the Equal Protection Clause of the Fourteenth Amendment, exclude from the franchise convicted felons who have completed their sentences and paroles. The California court did not reach respondents’ alternative contention that there was such a total lack of uniformity in county election officials’ enforcement of the challenged state laws as to work a separate denial of equal protection, and we believe that it should have an opportunity to consider the claim before we address ourselves to it. Accordingly, we reverse and remand for further proceedings not inconsistent with this opinion.

LawCare Nigeria

No. 72-1589

Argued: January 15, 1974Decided: June 24, 1974

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No. 72-1589

Argued: January 15, 1974Decided: June 24, 1974

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