The entire system of denying voting rights based on criminal activity is arbitrary, since it's only felons who are so disenfranchised. But that doesn't matter. The Fourteenth Amendment explicitly provides for disenfranchisement based on criminal activity.
Actually the
But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.
bit in the
14[sup]th[/sup] Amendment does NOT "explicitly provides for disenfranchisement based on criminal activity" but rather it "explicitly provides" for the reduction in representation in the House of Representatives in proportion to the percentage of people who have been denied the right to vote.
The interesting thing about the sloppy wording of the 14
[sup]th[/sup] is that it only refers to "male citizens".
One of the things about legal interpretation is that later legislation takes precedence over prior legislation. That means that if, for example, there is a provision in the 15
[sup]th[/sup] Amendment which conflicts with a provision in the, for example, 14
[sup]th[/sup] Amendment, then it is the provisions of the 15
[sup]th[/sup] Amendment which are operational and NOT the provisions of the 14
[sup]th[/sup] Amendment.
However, having just looked at the provisions of the 14
[sup]th[/sup] Amendment again, I wonder if the "representation reduction" provisions are actually applied when determining the number of seats in the House of Representatives and, if so how. I can see two different ways to apply that "representation reduction" and those are:
- the total number of seats allocated to a State would be determined on the basis of comparing ONLY the people who were NOT denied the right to vote
- i.e. (and I'll just use three states to keep the example simple) if all three states have a population of !,000,000, while "State A" has 100,000 "Felons Not Permitted To Vote", "State B" has 300,000 "FNPTV", and "State C" has 500,000 "FNPTV" and if there were 300 seats in the national legislature authorized, then "State A" would receive 129 seats. "State B" would receive 100 seats, and "State C" would receive 71 seats)
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and
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- the total number of seats would be divided by 3 so that each State was entitled to a MAXIMUM of 1/3rd of the seats but with the number of actual seats allotted reduced proportionately and only a fraction actually permitted to be filled.
- i.e. (and I'll just use three states to keep the example simple) if all three states have a population of !,000,000, while "State A" has 100,000 "Felons Not Permitted To Vote", "State B" has 300,000 "FNPTV", and "State C" has 500,000 "FNPTV" and if there were 300 seats in the national legislature authorized, then "State A" would receive (100 x 0.9) 90 seats, "State B" would receive (100 x 0.7) 70 seats, and "State C" would receive (100 x 0.5) 50 seats.
When you take a look at the statistics of "
Number of People by State Who Cannot Vote Due to a Felony Conviction", I get the sneaking feeling that NEITHER of the two above are actually applied and that the representation of the several states is based on total population WITHOUT regard to the 14
[sup]th[/sup] Amendment.
That would mean that either
- just about every federal election since the passage of the 15[sup]th[/sup] Amendment has been invalidly conducted;
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or
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- whatever "constitutional validity" there ever was for the disenfranchisement of felons has been long since spent.