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Brigham Young University Prelaw Review

Keywords

felony disenfranchisement, voting rights, intent, discriminatory intent, Richardson V. Ramirez, Hunter v. Underwood, Farrakhan v. Gregoire, Fourteenth Amendment

Abstract

Felony disenfranchisement, or barring convicted felons from voting, is a punishment used in almost every state. Although states differ in their severity of felony disenfranchisement, these laws resulted in 5.1 million Americans being unable to participate in the 2020 national election. The Supreme Court found in Hunter v. Underwood that felony disenfranchisement laws would violate the Equal Protection Clause of the Fourteenth Amendment if they contained “both [an] impermissible racial motivation and racially discriminatory impact.” Recent scholarship has found felony disenfranchisement to disproportionately affect marginalized racial groups. As such, it becomes the burden of felony disenfranchisement constitutional challenges to prove racial intent, a process that has been markedly difficult. This paper argues that felony disenfranchisement’s constitutionality should be determined using a more comprehensive racial intent qualification that accounts for not only explicit intent, but also an expanded definition of intent: lethargic intent.

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