[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]


 
                   DEMOCRACY RESTORATION ACT OF 2009 

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON THE CONSTITUTION, 
                   CIVIL RIGHTS, AND CIVIL LIBERTIES

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                                   ON

                               H.R. 3335

                               __________

                             MARCH 16, 2010

                               __________

                           Serial No. 111-84

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov

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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee               STEVE KING, Iowa
HENRY C. ``HANK'' JOHNSON, Jr.,      TRENT FRANKS, Arizona
  Georgia                            LOUIE GOHMERT, Texas
PEDRO PIERLUISI, Puerto Rico         JIM JORDAN, Ohio
MIKE QUIGLEY, Illinois               TED POE, Texas
JUDY CHU, California                 JASON CHAFFETZ, Utah
LUIS V. GUTIERREZ, Illinois          TOM ROONEY, Florida
TAMMY BALDWIN, Wisconsin             GREGG HARPER, Mississippi
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York
[Vacant]

       Perry Apelbaum, Majority Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel
                                 ------                                

  Subcommittee on the Constitution, Civil Rights, and Civil Liberties

                   JERROLD NADLER, New York, Chairman

MELVIN L. WATT, North Carolina       F. JAMES SENSENBRENNER, Jr., 
ROBERT C. ``BOBBY'' SCOTT, Virginia  Wisconsin
WILLIAM D. DELAHUNT, Massachusetts   TOM ROONEY, Florida
HENRY C. ``HANK'' JOHNSON, Jr.,      STEVE KING, Iowa
  Georgia                            TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan          JIM JORDAN, Ohio
STEVE COHEN, Tennessee
SHEILA JACKSON LEE, Texas
JUDY CHU, California

                     David Lachmann, Chief of Staff

                    Paul B. Taylor, Minority Counsel





















                            C O N T E N T S

                              ----------                              

                             MARCH 16, 2010

                                                                   Page

                                THE BILL

H.R. 3335, the ``Democracy Restoration Act of 2009''.............     3

                           OPENING STATEMENTS

The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and acting Chairman, 
  Subcommittee on the Constitution, Civil Rights, and Civil 
  Liberties......................................................     1
The Honorable F. James Sensenbrenner, Jr., a Representative in 
  Congress from the State of Wisconsin, and Ranking Member, 
  Subcommittee on the Constitution, Civil Rights, and Civil 
  Liberties......................................................    14
The Honorable Steve Cohen, Jr., a Representative in Congress from 
  the State of Tennessee, and Member, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................    15

                               WITNESSES

Mr. Hilary O. Shelton, Director, NAACP Washington Bureau, 
  Washington, DC
  Oral Testimony.................................................    17
  Prepared Statement.............................................    20
Mr. Roger Clegg, President and General Counsel, Center for Equal 
  Opportunity, Falls Church, VA
  Oral Testimony.................................................    23
  Prepared Statement.............................................    25
Mr. Burt Neuborne, Inez Milholland Professor of Civil Liberties, 
  New York University School of Law, New York, NY
  Oral Testimony.................................................    37
  Prepared Statement.............................................    39
Mr. Hans A. von Spakovsky, Senior Legal Fellow, The Heritage 
  Foundation, Washington, DC
  Oral Testimony.................................................    50
  Prepared Statement.............................................    52
Mr. Carl Wicklund, Executive Director, American Probation and 
  Parole Association, Lexington, KY
  Oral Testimony.................................................    59
  Prepared Statement.............................................    61
Mr. Ion Sancho, Supervisor of Elections Leon County, Tallahassee, 
  FL
  Oral Testimony.................................................    65
  Prepared Statement.............................................    68
Mr. Andres Idarraga, Central Falls, RI
  Oral Testimony.................................................    71
  Prepared Statement.............................................    74

                                APPENDIX

Material Submitted for the Hearing Record........................   105


                   DEMOCRACY RESTORATION ACT OF 2009

                              ----------                              


                        TUESDAY, MARCH 16, 2010

              House of Representatives,    
              Subcommittee on the Constitution,    
                 Civil Rights, and Civil Liberties,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 2:06 p.m., in 
room 2141, Rayburn House Office Building, the Honorable Robert 
C. ``Bobby'' Scott, acting Chairman of the Subcommittee 
presiding.
    Present: Representatives Scott, Conyers, Watt, Cohen, 
Jackson Lee, Chu, Sensenbrenner, and Franks.
    Staff present: (Majority) Keenan Keller, Counsel; David 
Lachman, Subcommittee Chief of Staff; and (Minority) Paul 
Taylor, Minority Counsel.
    Mr. Scott. The Subcommittee will come to order.
    Today, the Subcommittee examines one of the cornerstones of 
our democracy, the right to vote in a free and fair election. 
That right is denied an estimated 5.3 million Americans because 
of felony convictions. As many as four million of these have 
already completed their sentences.
    Chairman Conyers of the full Committee has introduced 
legislation to deal with that problem. H.R. 3335, the 
``Democracy Restoration Act of 2009,'' of which I am a proud 
sponsor, would restore the franchise of people who have paid 
their debt to society.
    Disenfranchisement has real consequences. Although this 
Committee has been in the forefront of efforts to reintegrate 
ex-offenders into society, these disenfranchisement laws stand 
as a major impediment to that important goal.
    Excluding people who have paid their debts to society from 
the mainstream of our Nation serves no useful purpose, but it 
does undermine the legitimacy of our elections and runs against 
our goals of returning people to the community and helping them 
leave behind the wrongdoing of their past.
    In the last Congress, President Bush signed the Second 
Chance Act. It represents a bipartisan recognition that we must 
do more to reintegrate ex-offenders into the community. Voting 
rights legislation is an important step in that direction.
    This Committee was also the driving force behind the 
extension of the Voting Rights Act, which stands as a crowning 
achievement in this Nation's march to full participation in our 
democracy. Unfortunately, we still have work to do. Not only 
are ex-offenders disenfranchised, but efforts to purge ex-
offenders from the rolls have resulted in thousands of 
qualified voters losing their right to vote.
    Confusion over these laws--for example, whether they apply 
to people on probation or parole, or whether misdemeanors may 
be involved--and criminal penalties for people who get it wrong 
intimidates people with every right to vote from exercising 
that right.
    Disenfranchisement of ex-offenders has a disproportionate 
impact on minority communities. Nationwide, 13 percent of 
African Americans have lost their right to vote, and that is 
seven times the national average. In eight States, more than 15 
percent of African Americans cannot vote due to felony 
convictions, and in three of those States, more than 20 percent 
of the African American voting age population has lost the 
right to vote.
    These statistics have consequences far beyond the rights of 
the disenfranchised individual. It can marginalize the entire 
community. In fact, many elections are decided by the margin of 
who is disenfranchised.
    The voice of these communities and our system of self-
government are diminished. The entire community is 
disenfranchised. And, in fact, they also prevent those who are 
disenfranchised from having a voice in policies that led to the 
disenfranchisement. By not being able to vote, they have no 
voice in democracy.
    They have no vote in the appropriations and how we 
appropriate money for education, for example. They have no vote 
in criminal justice laws, and no voice in the selection of the 
police, prosecutors and judges. And in fact, in many areas, 
there is a political imperative to use disenfranchisement to 
win elections.
    And so, we need to make sure that everyone has the right to 
vote, so that everyone's voice is heard.
    States have begun to recognize the injustice of the ex-
offender disenfranchisement. Since 1997, 19 States have 
expanded voter eligibility for ex-offenders.
    These reforms have restored the franchise to over 750,000 
citizens. Republican governors in Louisiana, Florida and Rhode 
Island, as well as Democratic governors in Iowa, Maryland, 
North Carolina and Washington State have worked to advance the 
reform of ex-offender franchises.
    Now, we know that, from a Federal point of view, this is a 
complicated, constitutionally complicated matter, because the 
Constitution specifically allows States to disenfranchise 
voters. But under the Voting Rights Act, even legal procedures 
can be proscribed, if they are utilized in an intentionally 
discriminatory way, or in a way that has a discriminatory 
effect.
    So, we are going to see what the options are. Even though 
this may be legal, we may be able to restore some rights.
    So, today, we are joined by a distinguished panel of 
witnesses, and I look forward to their testimony, and now 
recognize the former Chair of the full Committee, the gentleman 
from Wisconsin, Mr. Sensenbrenner.
    [The bill, H.R. 3335, follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
                              ----------                              

    Mr. Sensenbrenner. Thanks very much, Mr. Chairman.
    A core provision of this bill provides the States can only 
deny felons currently serving their sentences the right to 
vote, and that ex-felons, along with all people who are subject 
to parole or probation, must be allowed to vote, the laws of 
their States to the contrary notwithstanding.
    This legislation would thereby void the laws in 48 out of 
50 States, as well as the District of Columbia, that forbids 
felons from voting in varying degrees. Those States include my 
own State of Wisconsin, where people lose their voting rights 
if they are incarcerated, or on parole, or on probation.
    As former Judge Henry Friendly said, someone who ``breaks 
the law may fairly be thought to have abandoned the right to 
participate in making them, and that it scarcely can be deemed 
unreasonable for a State that the perpetrators of serious 
crimes shall not take part in electing the legislators who make 
the laws, the executives who enforce them and the prosecutors 
who must try them for further violation, or the judges who are 
to consider their cases.''
    When the 11th Circuit, speaking en banc, upheld Florida's 
felon voting roll, it said that felon disenfranchisement laws 
are deeply rooted in this Nation's history. Between 1776 and 
1821, 11 States disenfranchised persons convicted of serious 
crimes. And by the time of the Civil War, more than two dozen 
out of the then 34 States had enacted similar laws.
    By the time the 14th Amendment was adopted, 29 States had 
long since established felon disenfranchisement laws.
    This long history clearly refutes any suggestion that those 
laws were racially motivated. As the en banc 11th Circuit 
observed, at that time, the right to vote was not extended to 
African Americans. And therefore, they could not have been the 
targets of any felon disenfranchisement law.
    Indeed, the 14th Amendment itself explicitly permits States 
to adopt such laws. The framers of the Civil War amendment 
expressly included in Section 1 of the 14th Amendment terms 
that provide for a State's denial of voting rights ``for 
participation in rebellion or other crime,'' and made clear 
that such laws could not serve as the basis for reducing their 
representation in Congress.
    As the Supreme Court held in Richardson v. Ramirez, Section 
2 is an affirmative sanction by the Constitution of the 
exclusion of felons from the vote, including felons like the 
plaintiff in that case, who had finished their sentences. And a 
unanimous Warren era court decision recognized that a criminal 
record is one of the factors which a State may take into 
consideration in determining the qualifications of voters.
    As the 6th Circuit has said, felons are not disenfranchised 
because of an immutable characteristic such as race, but rather 
because of their conscious decision to commit a criminal act 
for which they assume the risks of detention and punishment.
    The majority opinion among the Federal circuits also reject 
the notion that the Voting Rights Act of 1965 can invalidate 
felon disenfranchisement statutes on the grounds that such laws 
have a racially disproportionate impact on minorities, while 
the 9th Circuit--which is the most overturned circuit in the 
country--held that the VRA can cover felon disenfranchisement 
laws. The en banc 11th Circuit and the 2nd Circuit have soundly 
rejected that claim.
    As the 11th Circuit stated, the Voting Rights Act--an 
entirely one-sided legislative history on that point--is 
supported by subsequent congressional acts. Since 1982, 
Congress has made it easier for States to disenfranchise 
felons. For example, the National Voter Registration Act of 
1993, which was signed into law by President Clinton, not only 
provides that a felony conviction may be the basis for 
cancelling a voter's registration, but it also requires Federal 
prosecutors to notify State election officials of Federal 
felony convictions.
    The Help America Vote Act of 2002 also instructs State 
election officials to purge disenfranchised felons from their 
computerized voting lists on a regular basis.
    Finally, regardless of the merits of this bill, it is 
doubtful that Congress even has the constitutional authority to 
enact it, because doing so would exceed Congress' enforcement 
powers under the 14th and 15th Amendments. In the 1997 case of 
City of Boerne v. Flores, the Supreme Court held that Congress 
cannot enact laws in support of the constitutional equal 
protection requirement, unless Congress has first developed a 
legislative record that demonstrates a history and pattern of 
unconstitutional State conduct.
    Not only has that legislative record not been compiled, but 
for the reasons outlined above, it does not appear that it ever 
could be compiled, considering the vast weight of 
countervailing historical evidence.
    Still, I look forward to hearing from all our witnesses 
today. And I think those who are in support of this bill had 
better answer this.
    Mr. Scott. Thank you.
    And we are joined by the gentleman from Tennessee, Mr. 
Cohen.
    Mr. Cohen. Thank you, Mr. Chairman. I appreciate the 
opportunity to make an opening statement, for this has been an 
issue very close to my heart during most of my legislative 
career.
    In 1986 as a State senator, I passed a bill in Tennessee 
that changed the voting rights in Tennessee, and allowed for 
people who had previously been declared infamous not to have 
voting rights, to get their voting rights restored in a simple 
process, in a simple procedure. And from 1986 to 1996, that law 
rested on the books, and it was known as the ``Cohen period.''
    In 1996, because of the Tennessee district attorney 
generals conference, the law was changed. Over my vote, and 
maybe one other person's, it was changed. It made me realize at 
that time that part of the impetus, besides the racial 
implications--which I think are clear, de facto, not de jure, 
necessarily racism--was that the D.A.s who put these people in 
jail did not want to see those people come back to vote, 
because they would not vote for that D.A.
    And that is not right either. It is politically covering 
your rear. And that is what happened when they changed the law 
in Tennessee.
    And then, in 2006, we changed the law again. And we changed 
it back to a simple procedure similar to what it was in 1986 to 
1996.
    However, an individual from East Tennessee--a Republican in 
the house--put an amendment on, to say that you could not get 
your voting rights restored if you were behind in your child 
support. Well, spend some time in prison. I think you are going 
to be behind in your child support, because you are not earning 
any money.
    And we know that that was another effort, and that it was 
challenged. But it was accepted in the house, which is 
something I wish would not have happened, but I was in the 
senate. The ACLU challenged that action, but I think the courts 
said that it was not--that they were not successful in their 
court challenge. So, we still have that problem in Tennessee.
    The bottom line is, Mr. Chairman, this is a vestige of Jim 
Crow. And I do not care if it is in Wisconsin, if it is in 
Utah, if it is in Alaska. It is a vestige of Jim Crow. And it 
needs to go. And if the Constitution--if there is a problem, we 
need to find a way to get around it.
    And while the distinguished former Chairman of this 
Committee submits that the 9th Circuit is the most overturned 
circuit, I think that is a condemnation of the Supreme Court of 
the United States, not a condemnation of the 9th Circuit, that 
is more likely on point, correct and moving this country 
forward. So, because it is overturned, that is a badge of 
honor.
    And the fact is, Mr. Chairman, this is an important 
hearing. We need to make sure that all these type of laws, that 
in their heart and their soul are evil and trying to put a 
scarlet letter--Hester Prynne does not have the A on her chest 
anymore. We have grown since Hester Prynne and ``The Scarlet 
Letter.''
    And this is an eternal scarlet letter put on people, which 
is contrary to all Christian, Judeo-Christian types of 
theories, that people can be recovered, can be redeemed, should 
have an opportunity and should be given a stake in society.
    And if people cannot vote, they do not have a stake. And 
so, they are going to stay out of society and they are going to 
be recidivists. It is just wrong.
    And I appreciate Mr. Conyers' bill, and we need to do all 
we can to pass it.
    Thank you so much.
    Mr. Scott. Thank you.
    We have a distinguished panel with us today.
    The first speaker will be Hilary Shelton, director of the 
NAACP's Washington bureau, senior vice president for advocacy 
and policy. In this capacity he has advocated on behalf of 
crucial civil rights legislation such as the Civil Rights Act 
of 1991, the reauthorization of the Voting Rights Act, the Help 
America Vote Act. He holds degrees in political science, 
communications and legal studies at Howard University, 
University of Missouri at St. Louis and Northeastern 
University, respectively.
    Roger Clegg is the president and general counsel for the 
Center for Equal Opportunity. From 1982 to 1993, he held a 
number of positions with the Department of Justice, including 
assistant solicitor general, and has served in the Civil Rights 
Division and Environmental Division. He is a graduate of Rice 
University and Yale Law School.
    Burt Neuborne is a professor of civil liberties at New York 
University School of Law. He has served as the legal director 
of the Brennan Center for Justice at NYU since its founding in 
1995. In addition to his work at the Brennan Center, he served 
on the New York City Human Rights Commission from 1988 to 1992, 
and as the national legal director of the ACLU from 1981 to 
1986.
    Hans Spakovsky is a senior legal scholar at the Center for 
Legal and Judicial Studies at the Heritage Foundation. He 
served in the Department of Justice as counsel to the assistant 
attorney general for civil rights from 2002 to 2005, and as a 
commissioner of the Federal Elections Commission in 2006 and 
2007. He is a graduate of Vanderbilt University School of Law 
and received his B.S. from MIT.
    Carl Wicklund is the executive director of the American 
Probation and Parole Association. He has over 37 years of 
experience in justice and human service fields that includes 
corrections program development and management. At the APPA he 
has been a member of the National Program Committee, chaired 
the Juvenile Justice Committee and served on the board of 
directors. He holds a B.A. in psychology from Gustavus Adolphus 
College.
    Ion Sancho is a supervisor of elections for Leon County, 
Florida, serving since January 1989. He has been re-elected to 
five additional terms. He is one of only three out of 67 
supervisors of elections in Florida without a party 
affiliation. He has devoted special attention to studying 
voting technology as an increasing participation in our 
electoral system. He received a J.D. from Florida State 
University Law School and B.A. from Stetson University.
    Andres Idarraga is a native of Rhode Island. He was 
convicted of a felony when he was 20 and spent 6.5 years in 
prison. Since his release in June of 2004, he has worked hard 
to overcome his past, becoming a full-time student at Brown 
University while maintaining full-time employment and 
advocating on behalf of those disenfranchised due to felony 
conviction.
    He is currently in his second year at Yale Law School, and 
I have learned that he is going to be joining the office of the 
full Judiciary Committee as an intern later this year.
    I am pleased to welcome all of you. Your written statements 
in their entirety will be made part of the record, and I ask 
each of you to summarize your testimony in 5 minutes or less.
    To help you stay within that time, there is a timing device 
at the table that is right behind the water pitcher. So, that 
would help you stay within the time. The light will start 
green, switch to yellow when there is 1 minute remaining, and 
will turn red when 5 minutes are up.
    It is customary in this Subcommittee to swear in the 
witnesses, but we are going to skip that this time and just go 
with--starting with Mr. Shelton.

           TESTIMONY OF HILARY O. SHELTON, DIRECTOR, 
            NAACP WASHINGTON BUREAU, WASHINGTON, DC

    Mr. Shelton. Thank you very much. And good afternoon, 
Chairman Scott, Chairman Nadler, Ranking Member Sensenbrenner, 
Congressman Cohen and esteemed Members of this Subcommittee.
    Thank you so much for calling this important hearing and 
for asking me here today to share with you the NAACP's position 
on this crucial piece of legislation.
    The NAACP strongly supports H.R. 3335, the ``Democracy 
Restoration Act of 2009,'' and urges its immediate enactment. 
At the heart of this debate, Mr. Chairman, is a question of 
rehabilitation, democracy and basic fairness. Currently, an 
estimated 5.3 million Americans across our Nation are denied 
the right to vote because of the laws that prohibit or restrict 
voting by people with felony convictions.
    Three-fourths of these Americans are no longer in jail. The 
Democracy Restoration Act would permit men and women to 
register and vote in Federal elections once they have been 
released from prison.
    The question as to whether or not these people should be 
allowed to vote is not a partisan question. Since 1997, 19 
States that are considered both blue and red have amended 
felony disenfranchisement policies in an effort to restore 
voter eligibility.
    Felony disenfranchisement laws have had a racially and 
ethnically disparate effect on minority Americans in general, 
and on African Americans quite specifically. Nationwide, an 
estimated 13 percent, or one out of every eight African 
American men cannot vote, because of a prior felony conviction. 
This is seven times the national average.
    And while the majority of those Americans who are 
disenfranchised because of prior felony convictions are 
Caucasian, African Americans, who make up about 13 percent of 
the U.S. national population, constitute about one-third, or 33 
percent, of those disenfranchised.
    Furthermore, given the current rates of incarceration, 
three in 10 of the next generation of African American men can 
expect to lose their right to vote at some point in their 
lifetime. In States that disenfranchise ex-offenders, as many 
as 40 percent of African American men may effectively and 
permanently lose their right to vote.
    One question that is frequently asked is, how many of these 
men and women would vote if they had an opportunity? It is, 
frankly, difficult to say.
    However, in 2006, voters in Rhode Island changed the law so 
that once a felon was released from prison, he or she was able 
to register to vote. Since probation or parole terms can run a 
decade or more, an estimated 15,000 people in that State were 
prevented from voting. After passage of the amendment, about 
6,000 of these people registered to vote in the 2008 election.
    Felony disenfranchisement also has an impact at the 
community level. Voting is one way that people take 
responsibility for their lives and show a sense of ownership, 
or become a stakeholder in our great Nation. By prohibiting an 
individual from participating in an electoral process, we are 
decreasing the stake he or she may have in his or her own 
community.
    Furthermore, election laws--even those governing Federal 
elections--are determined by individual States, and so, 
disenfranchisement laws may vary significantly across the 
country. On one hand, some States allow individuals to vote 
while they are incarcerated. On the other hand, 11 States 
currently do not allow people to vote once they are convicted 
of a felony offense, even after they have fully completed their 
sentences.
    This leads to confusion and disparities. A perfect example 
of the vast disparities is right here in our own backyard.
    In Virginia, a felony conviction automatically results in a 
permanent disenfranchisement, yet just over the State line in 
West Virginia, a person is allowed to register and vote once he 
or she leaves prison. As a result, less than 1 percent of the 
total population of West Virginia is disenfranchised, and all 
but 3.4 percent of African American populations of voting age 
are able to vote.
    In Virginia, almost 7 percent of the entire voting age 
population is disenfranchised due to a past felony conviction, 
and almost 20 percent of the State's African American 
population is locked out of the voting booth.
    Felony voting restrictions are the last vestige of voting 
prohibition. When the U.S. was founded, only wealthy men were 
allowed to vote. Women, racial and ethnic minorities, 
illiterates and the poor were excluded. Most of these 
restrictions have all been eliminated over time, often with 
much debate, rancor and challenges.
    People who have served their time and been released from 
prison are the last Americans to be denied their highly 
cherished, basic right to vote. Furthermore, the fact that the 
States which disenfranchise the most African Americans tend to 
be in the South, makes these laws all the more suspect.
    In fact, in some States with more restrictive ex-felony 
disenfranchisement laws, we have had African Americans report 
that their personal history--and, therefore, their voting 
eligibility--is questioned, simply because of the color of 
their skin.
    Because the right to vote is such an important element of 
the democratic process, it is simply wrong to predicate it upon 
a system rife with racial disparities.
    And with the voting such an integral part of becoming a 
productive member of American society, the way forward for our 
Nation should be a new paradigm in which we encourage ex-felons 
to vote, not prohibit them.
    Chairman, I would like to again thank the Committee for the 
opportunity to speak, and I look forward to your questions.
    [The prepared statement of Mr. Shelton follows:]
                Prepared Statement of Hilary O. Shelton

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
                               __________

    Mr. Scott. Exactly 5 minutes. Very good.
    Thank you, Mr. Shelton.
    Mr. Clegg?

TESTIMONY OF ROGER CLEGG, PRESIDENT AND GENERAL COUNSEL, CENTER 
            FOR EQUAL OPPORTUNITY, FALLS CHURCH, VA

    Mr. Clegg. Thank you, Mr. Chairman, for the opportunity to 
testify today.
    My name is Roger Clegg, and I am the president and general 
counsel of the Center for Equal Opportunity. I work there with 
Linda Chavez on a variety of issues. We are best described as a 
conservative think tank.
    I appreciate the opportunity to testify today, because I 
feel very strongly about this bill. I am sorry to say that what 
I have to say is that this Committee, this Congress, does not 
have the authority to pass it, and that even if you did have 
the authority to pass it, it would be a bad idea. And I do not 
view either one of those as being particularly close calls.
    The authority that is asserted for passing this bill 
appears principally to be Article I, Section 4 of the 
Constitution. That is not what Article I, Section 4 of the 
Constitution says.
    It is about Congress regulating the ``Times, Places and 
Manner'' of elections. That is not determining who votes in an 
election. That is explicitly the subject of other, different 
parts of the Constitution.
    That is what Alexander Hamilton thought. That is what James 
Madison thought. That is what the words of the Constitution 
mean. There is no Supreme Court authority to the contrary.
    The case that most squarely presented this issue succeeded 
in getting the vote of exactly one Supreme Court justice. The 
other eight justices not only did not join him, but explicitly, 
to one degree or another, rejected Article I, Section 4 as 
authority. So, what you have to rely on instead, I guess, is 
authority under the 14th or 15th Amendment.
    Mr. Chairman, in your introduction you said that you can 
rely on those provisions if there is a racially 
disproportionate intent or effect--there is racial intent or 
effect.
    I must respectfully disagree. The case law is quite clear 
that there must be discriminatory intent, there must be 
disparate treatment. And the history is quite clear that there 
is no systematic use of or intent behind these felon 
disenfranchisement laws to disenfranchise people on the basis 
of race.
    The opposing side's own historical research bears that out. 
The idea that, if you commit a crime, you are not allowed to 
vote, has roots in ancient Greece and ancient Rome. It came 
over to the colonies from England. It was passed in all kinds 
of States that did not have any--did not even allow African 
Americans to vote, and so, could not have been intended to keep 
them from voting. They were passed in a huge majority of 
States, long before the Civil War.
    It is true that there were five southern States in the 
period from 1890 to 1910 that tweaked those laws to further 
disenfranchise African Americans. But those were five States--
those laws are no longer on the books. All the other States 
that passed these laws did not have that intent.
    The historical record is overwhelming that that is the 
case. And as has already been acknowledged, 48 of the 50 States 
in the United States, to one degree or another, disenfranchise 
felons. The historical record simply is not there.
    And the record that is being relied on here is nonexistent. 
The Supreme Court's decision, the Supreme Court's handling of 
the Northwest Austin case last year, made clear that they were 
very interested in Congress being able to point to some kind of 
authority.
    And I must say, Mr. Chairman, that as skeptical as the 
Supreme Court was in the Northwest Austin case, the case for 
congressional authority there was robust compared to what we 
have here. There is simply no authority for Congress to pass 
this bill. And as my written testimony elaborates, it would be 
a bad idea for them to do so, even if they did have that 
authority.
    Thank you.
    [The prepared statement of Mr. Clegg follows:]
                   Prepared Statement of Roger Clegg

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                               __________
    Mr. Scott. Thank you.
    Mr. Neuborne?

TESTIMONY OF BURT NEUBORNE, INEZ MILHOLLAND PROFESSOR OF CIVIL 
   LIBERTIES, NEW YORK UNIVERSITY SCHOOL OF LAW, NEW YORK, NY

    Mr. Neuborne. Mr. Chairman, Members of the Committee, thank 
you for the opportunity to testify this afternoon.
    It is a great tribute to the both scholarly and 
intellectual force in this Nation that I can disagree so 
vehemently with Professor Clegg over the Committee's authority.
    I don't think there is any doubt about the Committee's 
authority. One can argue about the merits of this, and other 
people will do that much better than I can. But as far as the 
power of Congress to sever the last link between a history of 
using devices to prevent the members of racial minorities to 
vote, I think is, without question, that you have this power.
    This is the last link. Literacy tests are gone. The 
durational residence requirements are gone. The property 
qualifications are gone. The intimidation has finally been 
stopped. The violence has been stopped--the last link to the 
racist past of the felony disenfranchisement laws.
    Felony disenfranchisement, or disenfranchisement for 
conviction, did indeed predate the Civil War. They had it in 
Greece. But once the Civil War was fought, and once the 14th 
and 15th Amendments were put on the books, this was an 
extraordinarily convenient device for racists in both the North 
and the South to seize upon as a way to make sure that the 
newly freed slaves and the newly freed Black Americans would be 
unable to vote.
    And it is true that five States in 1890 began to tweak it, 
but the southern States and many of the northern States in the 
period from 1868 to 1890 used felony disenfranchisement laws 
outrageously and discriminatorily in a way to discriminate 
against Blacks.
    Now, I noticed on the train on the way down--and I hope you 
will forgive this personal aside--that this is the 45th 
anniversary of my first testimony before Congress. I testified 
in 1965 on the Voting Rights Act of 1965. And my topic, the 
task I had that day, was to talk to Congress about its power to 
abolish literacy tests--nationwide, in every State in the 
union, whether or not those States were currently engaged in 
racial discrimination.
    And I argued to the Committee then--and I argue now, 
because it is the same argument--that under Section 2 of the 
15th Amendment, Congress possesses power to act when three 
things come together: one, an impediment to voting that has 
been historically used to discriminate against members of 
racial minority; two, a showing that that impediment continues 
today to have the effect of discriminating against racial 
minorities; and three, the possibility and potential that the 
current effect is intended, because, as we all know, proof of 
intent is very, very difficult.
    And the most important power this Committee possesses under 
Section 2 of the 15th Amendment is the power to act 
prophylactically to stop techniques that have been historically 
used in a racially discriminatory way, that are still having 
racial impact, and where it is impossible to prove on a case-
by-case basis that the intent exists. The purpose of Section 2 
of the 15th Amendment is to give you the power to act 
prophylactically on a wholesale basis, where litigation on a 
retail basis would be inappropriate and impossible to prove.
    Now, when this issue came before the Supreme Court in 
Oregon v. Mitchell--the case that Professor Clegg mentioned--
all nine members of the Supreme Court--nine-nothing, not a 
single dissent--all nine members said that you had the power to 
eliminate literacy tests in every State in the country, because 
of three things: because literacy tests had been used in a 
discriminatory way to prevent Black people from voting; because 
they were still being used in a way that had a disproportionate 
impact on Black people; and because it was impossible on a 
case-by-case basis to differentiate when it was intentional and 
when it was not.
    And Congress, under those circumstances under Section 2 of 
the 15th Amendment, has the power to exercise the enormously 
important reform of saying, where there is smoke, you do not 
have to prove fire every time, if it is too hard to do. And we 
will step in and eliminate the practice entirely in order to 
sever the possibility that it is still linked to a racially 
discriminatory past.
    In fact, when Professor Clegg and, I assume, my colleague 
on my left are going to argue to you that the Committee has no 
power to do this, what they are really telling you is that the 
Committee had no power to eliminate literacy tests nationwide 
in 1970, and that the Supreme Court was wrong when it voted 
nine-nothing in Oregon v. Mitchell to uphold that power. Each 
of these devices--literacy tests on one hand, felony 
disenfranchisement on another.
    First, the legislation would operate only in Federal 
elections, leaving States to do what they will.
    Second, they both have long and ugly histories of racially 
discriminatory animus in their genesis and in their use after 
the Civil War.
    Three, they both today operate with disproportionate impact 
and prevent large numbers of poor people and racial minorities 
from voting.
    And fourth, it is difficult and--as a litigator who spent a 
lifetime doing this--virtually impossible to prove a racial 
animus in a sophisticated world where people know that they are 
not supposed to admit it. And so, it becomes impossible to 
prove it.
    But when you put those four things together, you have a 
prescription, I believe, for congressional action. And I urge 
you to follow that prescription.
    Thank you.
    [The prepared statement of Mr. Neuborne follows:]
                  Prepared Statement of Burt Neuborne

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                               __________

    Mr. Scott. Thank you.
    Mr. von Spakovsky?

 TESTIMONY OF HANS A. von SPAKOVSKY, SENIOR LEGAL FELLOW, THE 
              HERITAGE FOUNDATION, WASHINGTON, DC

    Mr. von Spakovsky. Thank you, Mr. Chairman, for the 
invitation to testify today.
    I am Hans von Spakovsky of the Heritage Foundation.
    Various consequences attach to a criminal felony 
conviction. First, there are prison or jail sentences. Second, 
there may be fines, court costs, restitution and possible 
probation and parole requirements. Finally, there are various 
disabilities such as the inability to own a gun, to work as a 
police officer, to serve in certain elected offices, or to 
serve on a jury.
    Time in prison is not, and has never been, the only way a 
felon pays his debt for breaking the law and endangering his 
fellow citizens and the public.
    I have to say with all due respect to Professor Neuborne, I 
pulled out my copy of the Constitution. He must be looking at a 
different version of it than I have, because this bill is an 
unconstitutional intrusion into the rights of the States. 
Congress does not have the power to do this.
    Professor Neuborne keeps talking about literacy tests, and 
that we would say that Congress did not have the power to do 
anything about that. That, of course, is wrong. The 15th 
Amendment made discriminating on the basis of race illegal. 
Literacy tests were used for that purpose. So, obviously, with 
the Voting Rights Act, which was passed under the power of the 
15th Amendment, Congress had the power to do that.
    But the 14th Amendment specifically states that States may 
abridge the right to vote because of rebellion or other crime. 
And as it was said in the, I think, Ramirez case, which looked 
at a felon disenfranchisement law in California, Congress 
cannot be seen to--the Founders and the passers of that 
amendment could not be seen to be taking away with one section 
of the 14th Amendment what they are granting the States 
specifically with the other.
    As has been said, criminals lose their right to vote, not 
because of their race, but because of their conscious actions. 
There is no power in Article I for Congress to do anything that 
is contrary to this provision in the 14th Amendment.
    Section 2 of Article I and the 17th Amendment provide that 
voters for Members of Congress shall have the same 
qualifications as voters for members of State legislatures. 
This explicitly places in the hands of the States the ability 
to determine the qualifications of voters.
    Congress is given the authority to alter the times, places 
and manner of elections for Congress. But the qualification of 
a felon to vote cannot be remotely compared to a regulation 
governing the time, place or manner of an election.
    And I would point out that in the ACORN v. Edgar case, 
which upheld the National Voter Registration Act, the court 
specifically said that the reason that those provisions 
regarding voter registration were within the power of Congress 
was because voter registration is within the manner of holding 
an election. And in fact, the court said that, if the law had 
been designed to make it impossible for the State of Illinois 
to enforce its voter qualifications, that would have been an 
entirely different case.
    There are also sound public policy reasons why this should 
not be done. The loss of civil rights is part of the sanction 
that our society has determined should be applied to criminals. 
States are entitled to ensure that those who injure or murder 
their fellow citizens, who steal, or who damage our democracy 
by committing crimes, have paid their debt to society, and even 
more importantly, have shown that they can be trusted to 
exercise all the rights of full citizenship.
    This bill would force States to immediately restore the 
right of convicted felons the moment they are out of prison, 
even if they are on parole in a halfway house, or have not paid 
restitution or fine.
    While most States automatically restore this right when 
felons have completed their sentences, other States have a more 
individualized procedure. Virginia, for example, has set up an 
application process that allows an individual review.
    A felon cannot apply until he has been released from 
supervised probation for 3 or 5 years, depending upon the 
crime. This is perfectly reasonable, given that a majority of 
felons were re-arrested and re-incarcerated within a short time 
after they were released from prison.
    The felon also has to show he has paid all of the court 
costs, fines and restitution. This bill would completely 
override this process at the expense of victims who are still 
owed restitution, and grant relief on a wholesale basis without 
considering whether someone is really entitled to restoration 
of those rights.
    The findings claim that this legislation will ``reintegrate 
offenders into free society, helping to enhance public 
safety.'' And it also says that felon voting laws serve no 
compelling State interest.
    If that is correct, then why does this legislation not also 
restore the other civil rights a convicted criminal may lose, 
such as the right to public employment?
    Federal law also prohibits felons from owning a gun. If 
public safety will be enhanced by providing felons with the 
ability to vote, why doesn't this bill amend Federal law to 
allow them to own a gun?
    Are we to believe they can be trusted to vote, but not to 
own a gun?
    Are we to believe that a convicted child molester can be 
trusted to vote, but not to be a teacher in a public school? 
Are we to believe a convicted drug dealer can be trusted to 
vote, but not to be a police officer?
    Won't that help integrate such criminals back into society, 
as claimed by the bill?
    The supporters of this bill apparently trust felons enough 
to require the automatic restoration of their right to vote. 
But they do not trust them enough to automatically restore the 
right to own a gun, or to restore all of the other civil rights 
that are taken away when they are convicted of murder, robbery, 
rape or bribery.
    The American people and their State representatives make 
these decisions. The Constitution specifically gives them that 
right. If Congress wants to change it, you have to do it 
through a constitutional amendment.
    Thank you.
    [The prepared statement of Mr. von Spakovsky follows:]
              Prepared Statement of Hans A. von Spakovsky

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                               __________
    Mr. Scott. Thank you.
    Mr. Wicklund?

   TESTIMONY OF CARL WICKLUND, EXECUTIVE DIRECTOR, AMERICAN 
        PROBATION AND PAROLE ASSOCIATION, LEXINGTON, KY

    Mr. Wicklund. Good afternoon, Chairman, Members of the 
Committee. I appreciate the opportunity to testify today in 
support of H.R. 3335.
    I am not a constitutional scholar, but I do think that this 
legislation will restore the right to vote in Federal elections 
to nearly four million of our fellow citizens who have a 
criminal conviction in their past, but who are out of prison 
and living in the community.
    Because I believe that voting plays in integral role in a 
successful reentry of people coming out of prison, I urge you 
to pass the Democracy Restoration Act.
    I happen to live in Kentucky, one of the last two States in 
the country to permanently disenfranchise everyone with a 
felony conviction unless they receive individual, 
discretionary, executive clemency. This archaic law 
disenfranchises over 180,000 Kentuckians, more than a quarter 
of whom are African American.
    I have been the executive director of the American 
Probation and Parole Association since 1996, and I have over 37 
years of experience in the corrections and human services 
field, including serving as the director of probation and 
parole for the county community corrections department and have 
developed and managed several community-based and private 
sector programs for offenders and at-risk youth in Minnesota.
    Among the many other professional associations I sit on, 
the FBI Criminal Justice Information Services Advisory Policy 
Board and the National Governors Association Intergovernmental 
Justice Working Group. I have been awarded the Florida 
Association of Community Corrections Lifetime Achievement 
Award, the Congressional Crime Victims' Rights Caucus Allied 
Professional Award and the Justice Leadership Award.
    APPA, or the American Probation and Parole Association, 
represents over 35,000 individuals in the field of probation, 
parole and community corrections. We have members in every 
State, as well as a number of different countries. APPA members 
supervise more than five million adults across the United 
States.
    Our vision is to have a fair, just and safe society where 
community partnerships restore hope by creating a balance of 
prevention, intervention and advocacy. Restoring the right to 
vote--the most basic of all rights--to people who are living 
and working in the community is central to this core mission.
    For this reason, APPA has been part of national efforts to 
restore voting rights to people with criminal convictions. In 
2007, we passed a resolution calling for the restoration of 
voting rights. I currently sit on the Brennan Center for 
Justice Law Enforcement and Criminal Justice Advisory Council, 
comprised of police chiefs, corrections officials and 
prosecutors who have come together to support voting rights 
restoration.
    Our members have encouraged voting rights legislation in a 
number of States, including Kentucky, Maryland, Minnesota, New 
York, Washington and Wisconsin. We believe that civic 
participation is integral to successful rehabilitation and 
reintegration.
    One of the core missions of parole and probation 
supervision is to support successful transition from prison to 
the community. Civic participation is an integral part of this 
transition, because it helps transform one's identity from 
deviant to law-abiding citizen.
    For this reason, the Democracy Restoration Act is 
indispensible; it is an indispensible part of the reentry 
process.
    The combination of the sheer number of people being 
released from prison every day and the revolving door created 
by staggering recidivism rates have forced those who work in 
community supervision to look carefully at the process of 
reentry and find innovative ways to ease this reintegration, 
with the ultimate goal of preventing future crime and 
protecting public safety.
    Civic participation and successful rehabilitation are 
intuitively linked. One of the greatest challenges facing those 
who are coming out of prison or jail is the transition from 
focus on one's self as an individual that is central to the 
incarceration experience, to a focus on one's self as a member 
of community that is the reality of life in our democratic 
society.
    Civic participation has also been linked to reducing 
recidivism. One study tracking the relationship between voting 
and recidivism found that former offenders who voted were half 
as likely to be arrested than those who did not. This study 
reaffirms that a package of pro-social behaviors that are 
linked to desistance from crime and participatory life.
    There are four generally accepted purposes of criminal 
penalties: prevention against committing new crimes, 
deterrence, retribution and rehabilitation. Losing the right to 
vote does not address any of those.
    And we are not alone in our support for restoring the 
voting rights. Other national criminal justice and law 
enforcement agencies, including the National Black Police 
Association and the Association of Paroling Authorities 
International, have passed resolutions in favor of voting 
rights restoration.
    Even the current director of the Office of National Drug 
Control Policy wrote, when he was chief of police in Seattle, 
``voting is an important way to connect people to their 
communities.--We want those who leave prison to become 
productive and law-abiding citizens. Voting puts them on that 
path.''
    I thank you for the opportunity to present today.
    [The prepared statement of Mr. Wicklund follows:]
                  Prepared Statement of Carl Wicklund

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                               __________

    Mr. Scott. Thank you.
    We have been joined by the Chairman of the full Committee, 
Mr. Conyers, the gentleman from North Carolina, Mr. Watt, and 
the gentlelady from California, Ms. Chu.
    Mr. Sancho?

 TESTIMONY OF ION SANCHO, SUPERVISOR OF ELECTIONS LEON COUNTY, 
                        TALLAHASSEE, FL

    Mr. Sancho. Thank you very much, Mr. Chair, honorable 
Members of the Committee. My name is Ion Sancho, and I have 
been an election official in the State of Florida for, now, 21 
years. And I can tell you that Florida is probably the poster 
child for the dramatic case for reform that we need in this 
Nation.
    Of the five million Americans that are estimated to be 
barred from voting as a result of committing crimes, almost one 
out of five of these people reside today in the State of 
Florida. And the genesis of our current statute did begin 
following the American Civil War with the Constitution of 1868, 
the first evidence of a bar to felon voting in our history.
    No one here can forget the Florida election of 2000, 
perhaps the most infamous election in our country's history. 
While most Americans can recall problems with butterfly ballots 
or pregnant chad, less well-known, but of more significance, is 
the role played by the flawed felons list distributed to the 67 
Florida supervisors of elections in the spring of 2000 by 
Florida state officials.
    Pursuant to a consent decree entered into with the NAACP, 
and then-Florida Secretary of State Kathryn Harris, in 2002, 
20,000 legal Florida voters were required to be added back to 
our rolls, because these were the numbers that the State 
admitted had been illegally identified as felons, and thus, not 
allowed to vote on November 7, 2000, in a contest that was 
decided by a mere 537 votes.
    Again, in 2004, we were given flawed lists, which 
fortunately, this time, the media sued to gain access. And once 
the flaws were known, Governor Jeb Bush was forced to withdraw 
those lists for our use to declare citizens as ineligible.
    Even as I am talking to you now, Florida's current efforts 
to reform the process of civil rights restoration is not 
working. Republican Governor Charlie Crist and the Florida 
cabinet, based upon the need for fundamental fairness in our 
process, initiated reforms in 2007, allowing for the 
restoration of voting rights for all non-violent offenders.
    The Florida legislature, when told that 42 new employees 
would have to be dealt with to deal with the work load 
necessary, not only did not provide the 42 workers, they cut 
the clemency board's existing work staff. And today, the 
backlog is between 1 to 3 years for individuals that the State 
has said should be brought back into the process of voting, and 
they cannot, because of the partisan interference at the 
Florida legislative level.
    It is time we adopted national and rational standards for 
Federal elections and to stop the partisan game playing which 
has become the hallmark of American politics today--not just in 
Florida, but across the Nation.
    And I can tell you that in my tenure as an election 
administrator in Florida, nothing has helped our voting process 
more than the two major pieces of Federal legislation that this 
Congress enacted: the National Voter Registration Act of 1993, 
which finally established voter registration procedures fairly 
across our State; and the Help America Vote Act, which 
established properly the statewide databases which we now can 
properly identify and process voters in a fair and opportune 
manner.
    But even today, even though we have what I consider one of 
the best databases in the country in terms of voter 
registration, costing $23 million, which was completely funded 
through Federal dollars, and an ongoing cost of $2.5 million a 
year to operate, there is one central flaw in the State design 
of that database. No supervisor of elections can look up and 
identify which Florida citizens have been given the right to 
have their voting rights restored.
    And in a study that was released last March by the Florida 
ACLU, numerous Florida election officials could not properly 
identify what Florida's current votes were--what the law for 
individuals seeking to vote were. An individual who was turned 
away from registering to vote in Hillsborough County had to 
come to Leon County, where that individual was properly 
registered and placed back on the rolls where they should have 
been.
    Again, the constitutional arguments here that the manner of 
an election does not include the right and how one may register 
or cast a ballot, I think is a specious argument. The same 
argument was used against the National Voter Registration Act 
of 1993. In fact, you can determine what is right and what 
proper manner individuals may vote in Federal elections.
    And it is time we ended the partisan process that is all 
too often appurtenant to this process, and have a rational 
standard, so that all election officials all across the 
country, and all citizens who want to participate in this 
process do not have to come up to me, as citizens do when I am 
in the outside in my community and seeking to register 
individuals. And I see the look in people's eyes who want to 
register to vote, but they cannot. They cannot register to 
vote, and I can see that. And they are ashamed.
    They wear the scarlet letter on their forehead that 
Congressman Cohen talked about. And there is nothing I can do 
to assist them, because that is the process in Florida, and I 
am charged with carrying out those rules.
    But I think we do need reform. I think that our association 
has been on record for, in our own State, for adopting a 
procedure much as this congressional act. As soon as an 
individual has served his time, that individual should be 
allowed to register and vote.
    And in conclusion I would like to cite Republican Governor 
Charlie Crist, who in trying to convince the Florida Cabinet--
which he successfully did--that we needed to make reforms, 
wrote, justice cries out for us to do what is right. Dignity, 
justice, honor. And at what point do the punished have the 
right to do a simple chance to come back to society?
    Those whose lives we discuss today have served a sentence, 
as they should have. But what right do we here have to add to 
that sentence?
    Thank you very much.
    [The prepared statement of Mr. Sancho follows:]
                    Prepared Statement of Ion Sancho

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                               __________
    Mr. Scott. Thank you.
    Mr. Idarraga?

        TESTIMONY OF ANDRES IDARRAGA, CENTRAL FALLS, RI

    Mr. Idarraga. Chairman Conyers, Chairman Scott, 
Representatives Chu, Watt and Members of this honorable 
Committee, thank you for this opportunity to testify at this 
hearing in support of this bill.
    My name is Andres Idarraga, and I am here to discuss the 
merits of this bill from an extremely personal perspective, for 
myself and for the communities I grew up in and worked.
    Almost 6 years ago, I was released from prison after 
serving 6\1/2\ years. Like most other newly released persons, 
my priorities were securing housing and employment. I also 
dearly wanted to get an education.
    Voting was neither at the top nor near the top of my list 
at that time. However, it was something I thought about very 
much.
    Half-way through my prison term, I discovered the prison 
library, and ironically, it was there where I discovered what 
being a citizen of this great country means.
    When I grew up, neither of my parents had formal education. 
My father did not make it past elementary school in his native 
country. My mother did not get an education, either.
    I had very few reference points of what getting an 
education meant. And it was in that library where a small group 
of prisoners would discuss various topics ranging from 
economics, law, literature, math, philosophy, where I finally 
found what it meant to be a citizen.
    The latter was mainly due to two great, influential books. 
One was the autobiography of Nelson Mandela, and the other was 
a biography of Thurgood Marshall. Both men understood the self-
correcting mechanisms and the deep humanity of their societies. 
For them, there were no enemies, only potential allies, for 
both men understood that we all had to live with the results 
that society creates together.
    Today, we have created a society that excludes some five 
million people from the ballot. This exclusion is at the end of 
a complicated chain that often begins with poverty and a lack 
of education, involves the criminal justice system and penal 
institutions, and often ends in isolation, bitterness and 
disfranchisement.
    I have personally travelled this complicated chain from 
beginning to end, like I stated.
    After serving 6\1/2\ years in prison, during that time I 
realized what I had thrown away and became determined to turn 
things around for myself, my family and my community. After I 
was released, I attended the University of Rhode Island, 
graduated from Brown University, and am now in my second year 
at Yale Law School.
    My education and my experiences provide me with the 
foundation to believe, like my role models, that our 
constitutional laws call for correcting the injustice of felon 
disfranchisement.
    In summer of 2004, shortly after my release, I approached 
my parole officer about voting. She answered that she was not 
sure whether I could or not, because I was a convicted felon. 
Her response is emblematic of our national patchwork of laws on 
this issue, which create confusion, even for those who should 
know what the answer is.
    Therefore, I had to find out for myself.
    At that time, I was living with an aunt, had a job, was a 
month away from beginning my freshman year at the university. I 
felt extremely fortunate. During my time in prison, I worked 
relentlessly to prepare myself for my second chance, and my 
efforts were beginning to pay off. Now that I had taken care of 
my most pressing concerns, I could begin thinking about larger 
issues.
    One of those larger issues was, what was my role as a 
citizen who had been recently released from prison, and who 
aspired to make a difference in the lives of similarly situated 
men and women? At least, I thought, I should be able to 
exercise the fundamental role the citizen plays in our society, 
which is voting.
    Ironically, I have also talked to many individuals who have 
gone for the citizenship test. And one of the questions it 
states is, it says, what is the most important right you get 
upon becoming a U.S. citizen? And the answer is, voting.
    My question to my parole officer at the time was the first 
step in the direction to vote. However, I later learned that I 
was barred from voting due to my felon conviction. I was 
disappointed and perplexed.
    Later, I soon joined the Rhode Island Right to Vote 
coalition that was working to change laws on this issue. In my 
home State of Rhode Island, which was referenced, there was--
there is parts of the State where close to 25 percent of young 
men are disfranchised. About 10 to 15 percent are Latinos. And 
while it does disproportionately affect minorities, in the 
aggregate, it is still our felon White citizens who are mostly 
affected by these laws.
    Denying the formerly incarcerated the right to vote serves 
no purpose as far as I can see. On the front end, 
disfranchisement does not function as an effective deterrent to 
crime, nor does it further any compelling government interest 
in public safety upon release. In fact, the opposite is true.
    Studies have shown that voting by those who have been 
arrested is associated with lower rates of recidivism.
    In November 2006, my fellow Rhode Islanders were the first 
in the Nation to go to the polls and approve a ballot 
referendum to restore voter rights to people as soon as they 
were released from prison.
    After this ballot was approved, I recall going in to vote 
for the very first time, and driving my 8-year-old nephew to 
the voting booth with me. We engaged in a back-and-forth 
conversation of who was I voting for, and why. And he was 
extremely interested.
    And I was able to impart in him for the very first time the 
model and behaviors that I try to impart on my community, and 
which I did not grow up in. I hope that he takes the lesson to 
heart.
    This year, I founded a group that organizes law students to 
teach constitutional law in local high schools. And the 
beginning of the year, we asked students what their conception 
of the law is. For most of them, they viewed the law 
negatively. They see it as a blunt instrument with little give.
    I believe, and I have come to view the law very different. 
I see its redemptive qualities. And I hope to impart that in 
those communities.
    During my travels, I have received many e-mails, many 
letters from people that have been affected, thanking me, and 
telling me about the first time they went to vote, because of 
some of our efforts. This bill will further citizenship and the 
rule of law in communities that sorely need it.
    I only hope that those communities become as actively 
engaged in our society as my fellow classmates at Yale Law 
School are.
    Thank you for this opportunity.
    [The prepared statement of Mr. Idarraga follows:]
                 Prepared Statement of Andres Idarraga

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                               __________

    Mr. Scott. Thank you.
    We will now question the witnesses under the 5-minute rule, 
and I will begin.
    Mr. Clegg and Mr. Neuborne, Article I, Section 2 says that 
the electorates in each State shall have the qualifications 
requisite of the electors of the most numerous branch of the 
State legislature. That is where the States get to pick who can 
vote in a Federal election. Is that right?
    Mr. Neuborne. That is the source of the States' power to 
set ballot--qualifications for their own elections, and at 
least presumptively for State----
    Mr. Scott. Okay. And the 14th Amendment says that you 
essentially cannot deny someone the right to vote, but then 
says, except for participation in rebellion or other crimes. 
That is the authority to disenfranchise people who have 
committed felonies. Is that right?
    Mr. Clegg. No.
    Mr. Scott. No? Mr. Clegg?
    Mr. Clegg. I do not think that the States need affirmative 
Federal authority. I do not think that the States need 
affirmative--thank you.
    I do not think that the States need affirmative Federal 
authority to decide what the qualifications for voting in their 
States are.
    I think, though, that the provision that you read----
    Mr. Scott. Well, it says--wait, wait, wait.
    Mr. Clegg [continuing]. It says that the people who wrote 
the 14th Amendment saw that there would typically be non-racial 
reasons for disenfranchising criminals.
    Mr. Scott. Well, it says that--essentially, it says, when 
the right to vote in any election is denied to any male 
inhabitant of such State, being 21 years of age--now, we have 
taken out the male with the subsequent--and it has gone to 18 
subsequently.
    But it suggested you cannot discriminate. Anybody that is 
otherwise qualified, male inhabitant over 21, you have got to 
let them vote, except for participation in a crime. That would 
give them the right to discriminate against those people. If 
they have committed a crime, you would be able to discriminate 
against them for having committed a felony.
    Mr. Clegg. No, I do not think that that is----
    Mr. Scott. Then where else can you discriminate against 
them on any basis?
    Mr. Clegg. Well, for instance, there are all kinds of 
people who are not allowed to vote in the United States. I 
mean, we sort of think that everybody can vote, but actually, 
that is not true. Of course, we do not let children vote. We do 
not let people who are mentally incompetent vote.
    Mr. Scott. No, wait a minute. We have 21 years of age----
    Mr. Clegg. That does not----
    Mr. Scott [continuing]. Inhabitant.
    Mr. Clegg [continuing]. Mental competence. We do not let 
non-citizens vote.
    There are certain minimum, objective standards of 
responsibility and trustworthiness and loyalty that we require 
of people, if they are going to participate in the sacred 
enterprise of self-government. And people who have committed 
serious crimes against their fellow citizens do not meet those 
minimum standards.
    Mr. Scott. Okay. Then you get the 15th Amendment that says 
that the right to vote shall not be denied or infringed by the 
United States or any State on account of race, color, previous 
condition of servitude. If you can show for any reason, for any 
scheme that you are denying the right to vote on account of 
race, color, that can be prohibited.
    Mr. Clegg. Absolutely.
    Mr. Scott. Okay.
    Mr. Clegg. But I do not think that that is what is going on 
with the vast majority of felon disenfranchisement----
    Mr. Scott. Okay. Well, if you could show in a particular 
State that the scheme of disenfranchisement was enacted for 
the--with the intent to diminish the African American vote, 
would it be illegal? Could you proscribe it?
    Mr. Clegg. You could proscribe it. And you could have it--
even without a Federal law, you could bring a lawsuit--and have 
it struck down as unconstitutional. And indeed, the Supreme 
Court has done that in at least one case.
    Mr. Scott. Which case? Could you describe the case?
    Mr. Clegg. The case was Hunter v. Underwood. And it 
involved an Alabama misdemeanor, an Alabama statute that 
disenfranchised people who had committed certain misdemeanors, 
not even felonies. And it was shown that that law was passed in 
the post-Reconstruction era, explicitly to disenfranchise 
African Americans.
    And Chief Justice Rehnquist in, I believe, a unanimous 
opinion for the Court, struck it down was unconstitutional.
    Mr. Scott. And so, without regard to the bill as it is 
written, in those targeted situations where you can show that 
it has discriminatory, in that case, intent, then the Federal 
Government would have the right to proscribe that 
disenfranchisement.
    Mr. Clegg. That is correct.
    Mr. Scott. Now, if it is intent. What about discriminatory 
impact?
    Mr. Clegg. No. The Court has made quite clear that laws 
that have a simple disproportionate impact on the basis of race 
or ethnicity are not unconstitutional. It said that on several 
occasions with respect to the 14th Amendment. A plurality has 
said that with respect to the 15th Amendment. And of course 
there is no reason to think that two Reconstruction era 
statutes would have a different standard in that regard.
    Mr. Scott. But it you tried to start a disenfranchisement, 
and you are in a covered State under Section 5, and you could 
show a discriminatory impact, could you prohibit it under the 
Voting Rights Act today?
    Mr. Clegg. That is one reason why I think the Voting Rights 
Act today is unconstitutional in that respect.
    Mr. Scott. To the extent that the Voting Rights Act is 
constitutional, you could, in fact, proscribe the use of felony 
disenfranchisement with a disparate impact, if you tried to 
pull it off today in a covered State.
    Mr. Clegg. I think what would happen then, Mr. Chairman, is 
that arguendo you would be able to make out a prima facie case 
under Section 5, or under Section 2, for that matter, if you 
could show a disproportionate impact.
    However, the State would be able to come back and rebut 
that prima facie case by showing that it had a strong and 
legitimate reason for the challenged practice.
    And in my view not allowing people who have committed 
crimes, who are not willing to follow the law, to make the law 
for the rest of us is a good reason. And a case--a prima facie 
case could be rebutted by a State simply saying that, look, the 
overwhelming majority of States in the United States do not, 
and have not, allowed felons the vote. That is what we do.
    Mr. Scott. Well, wait a minute.
    Mr. Clegg. And it could rebut the prima facie case that 
way.
    Mr. Scott. A racially neutral, good faith purpose does not 
override the discriminatory impact under Section 5.
    Mr. Clegg. No, I disagree with that. It is just like in the 
employment context, Mr. Chairman. If an employer has a 
selection device that has a disparate impact, a prima facie 
case can be made against him. But the employer can then come 
back and show a business necessity for the practice and win 
that way.
    The Supreme Court has recognized in the----
    Mr. Scott. But if they cannot----
    Mr. Clegg [continuing]. In a voting rights case involving--
--
    Mr. Scott. If they cannot show a business necessity, 
although they had racially neutral intent, but it had a 
disparate impact, and cannot show a business--I mean, there is 
just the Griggs case.
    Mr. Clegg. That is right. But you are able to come back and 
rebut it. And the Supreme Court has recognized the same kind of 
rebuttal opportunity under the Voting Rights Act.
    Mr. Neuborne. Mr. Chairman, could I comment a bit on the 
question, as well? Because I think I disagree quite strongly 
with Professor Clegg on this.
    He is, of course, completely correct in describing Hunter 
v. Underwood to you, which is the case where the Supreme Court 
struck down the Alabama felon disenfranchisement law on the 
ground of showing that it was part of this post-Reconstruction 
effort to disenfranchise Blacks throughout the South. And Chief 
Justice Rehnquist's opinion has a splendid history of the use 
of the felon disenfranchisement laws during that period as a 
racist way to prevent people from voting.
    Now, how do we take that forward into the modern era under 
Section 2 of the 15th Amendment?
    And Professor Clegg's description of the complexities of 
litigating a case one by one to try to prove the continuing 
racial animus is exactly why Congress has power under Section 2 
of the 15th Amendment to act when there is a history of racial 
animus, where there is a continuing racial impact--a 
disproportionate racial effect, as you point out--and where 
Congress finds that it is extraordinarily difficult to 
determine on a case-by-case basis which voter is being turned 
away because of race, and which voter is being turned away for 
some other reason.
    Congress has the power under those circumstances to act 
prophylactically to sweep away the remnants of a racist past, 
precisely because it is impossible to do it on a case-by-case 
basis to try to prove intent in a world in which politicians 
now have a sophisticated knowledge that they are not supposed 
to admit that that is what they are doing.
    Mr. Clegg. I do not agree, by the way, that it is that 
difficult to show discriminatory intent.
    When I was at the Justice Department, we brought disparate 
treatment cases, and won disparate treatment cases, all the 
time.
    Mr. Neuborne. Did you ever lose one?
    Mr. Clegg. And we used----
    Mr. Neuborne. Did you ever lose one?
    Mr. Scott. Wait a minute. Wait a minute.
    Mr. Clegg. Probably should have.
    Mr. Scott. Let me just follow through, Mr. Neuborne.
    Mr. Neuborne, under your analysis, and under the 
constitutional requirement that we have to narrowly tailor any 
remedy, could you globally proscribe felony disenfranchisement 
laws everywhere, even where it is clearly in States where there 
are virtually no African Americans, and you cannot possibly 
show that it was done with that intent?
    Or would you have to do it on a targeted basis showing, as 
we did with the Voting Rights Act, that it has a discriminatory 
intent and impact in a particular State, and do it on a case-
by-case--not an individual voter-by-voter, but state-by-state 
basis where it would be illegal?
    Mr. Neuborne. Well, that is a great question, congressman. 
And fortunately for me, at least, there is a good answer for 
it. And that is that the literacy test experience is exactly 
that experience.
    What happened was that literacy tests were obviously used 
throughout the South in a much more aggressive way to 
disenfranchise Blacks than throughout the North. But they were 
used everywhere in a racially discriminatory way in one way or 
another at one point in the Nation's history.
    And then, in 1970, when Congress was considering what to do 
with literacy tests, they asked exactly your question. They 
said, should we sweep away literacy tests only in the States 
that fall under the Voting Rights Act? Or should we sweep 
literacy tests nationwide, regardless of whether or not there 
is a history in the past?
    And they chose to do it nationwide, because they realized 
that even in States without a comprehensive history, there 
were, nevertheless, the opportunity for racially discriminatory 
behavior. And indeed, there was a case by New Hampshire, 
ironically, argued by David Souter when he was an attorney 
general of New Hampshire, in which he attempted to distinguish 
New Hampshire from the rest of the country on literacy tests, 
and he lost.
    And he should have lost, because Congress wanted to take it 
out all over the country as part of their prophylactic power to 
eliminate the vestiges of racial discrimination in voting----
    Mr. Clegg. But, you know, at the other extreme, I think 
that if you had one instance in one State of discrimination, 
for the Congress to use that as an excuse to enact a nationwide 
law would clearly be unconstitutional.
    And there was testimony----
    Mr. Scott. Well, Mr. Clegg, is the----
    Mr. Clegg.--11 years ago----
    Mr. Scott. Is the prohibition against literacy tests--how 
is that done?
    Mr. Clegg. No. I think that that is much closer to the 
opposite extreme, where it was being used systematically in 
large parts of the country in order to disenfranchise----
    Mr. Scott. In New Hampshire?
    Mr. Clegg. I am sorry?
    Mr. Scott. In New Hampshire?
    Mr. Clegg. I do not know.
    But the point is, it was being used in lots of places, not 
just one isolated incident.
    Here, on the other hand, we have laws that have been passed 
all over the country with every State except for two, had a 
history of clearly being used for non-racial reasons for 
hundreds and thousands of years.
    And for Congress seize upon the disparate impact that it 
has in some instances as an excuse to invalidate all these 
laws, I think would clearly be unconstitutional.
    Mr. Scott. My time has more than expired.
    Mr. Clegg. Mr. Chairman, could I ask one question?
    I just want to compliment you on your scrupulousness in 
wanting to get the right answer on this constitutionally, which 
I think is very important. And I do not know--I mean, I am a 
little reluctant to bring this up, particularly because he is 
not here.
    But I thought that I heard Representative Cohen say that he 
is, you know, very much in favor of this law, and if there is a 
constitutional problem, that this Committee will just have to 
find some way around it.
    I do not know if that is what--if you heard that or not. 
But I just want to go on record saying that that is----
    Mr. Scott. Well, if we pass a law, we will do everything we 
can to make sure that it is constitutional.
    The gentleman from Arizona, Mr. Franks?
    Mr. Franks. Well, thank you, Mr. Chairman.
    Mr. Chairman, I guess I would direct my first question to 
Professor Clegg.
    I think I saw you shaking your head when the comparison was 
made between felony disenfranchisement and the literacy laws 
test. And could you expand on that? Tell me what was on your 
mind there. I am fascinated.
    Mr. Clegg. Well, I thank you for the question, but I have 
been trying to do that, actually. I think that two really 
cannot be equated. The history of literacy tests as a 
deliberate device that was used to disenfranchise people on the 
basis of race and ethnicity, that that was being stubbornly 
adhered to and abused for decades, is one historical incident.
    The felony disenfranchisement laws present a completely 
different historical incident. And I just think that the two 
cannot be equated.
    It is true, as I said in my testimony, that there were five 
southern States that tweaked their laws in the period from 1890 
to 1910 deliberately to keep African Americans from voting. And 
that was unconstitutional. That was wrong. But those laws are 
no longer on the books.
    And the 48 States that have felony disenfranchisement laws 
now, it is just ridiculous to assert that those laws, as a 
general matter, have racial roots. That is simply not true.
    Now, I have great affection for Professor Neuborne, but, 
you know, the parts of his testimony, you know, where he says, 
you know, to the contrary, that, for instance--the one instance 
he says that ``many, probably most, and possibly all'' criminal 
disenfranchisement laws have been implemented and enforced in a 
discriminatory manner--and another instance where he says 
``most felony disenfranchisement statutes have their genesis in 
an effort to disenfranchise racial minorities''--you believe 
that?
    Mr. Neuborne. I will stand by it.
    Mr. Clegg. ``Most felony disenfranchisement statutes?''
    You are talking about 48 States--most of those have their 
genesis in an effort to disenfranchise racial minorities?
    Mr. Neuborne. I will stand by that. It came into being 
after--now, if I have a moment to explain, felony 
disenfranchisement in this country has two periods, the period 
before the Civil War and the period after the Civil War.
    The period before the Civil War, there were literacy tests. 
There were felon disenfranchisement statutes. There were 
property qualifications. They probably did not have much of a 
racial impact, because most Blacks could not vote, especially 
after Dred Scott. There simply was not a serious racial problem 
with voting.
    But once the 14th and 15th Amendments got passed, all of a 
sudden, these old standards--which of course date back to 
Greece and Rome--were recycled by racists. They were recycled 
by racists all over the country as convenient rocks to throw at 
newly enfranchised Blacks. And they threw them everywhere. They 
threw them in New York. They threw them in Florida.
    To say that you only want to look at the period from 1890, 
when five States tweaked their laws--obviously to target 
Blacks--overlooks entirely the period from 1868 to 1890, when 
State after State adopted these rules, or made them harsher, or 
made them harder to administer. There is no way to separate the 
ugly racial past that seeps into our felony disenfranchisement 
laws from the legitimate, which is exactly why Section----
    Mr. Franks. Mr. Neuborne, if I could----
    Mr. Neuborne [continuing]. Of the 15th Amendment is so 
important.
    Mr. Franks.--I would like to have Professor Clegg have a 
chance to respond.
    Mr. Neuborne. I am sorry. I am sorry. I overstated, I am 
afraid.
    Mr. Clegg. No, no, no.
    Professor Neuborne and I, before the hearings began, were 
talking about how we both enjoyed Alexander Keyssar's book, 
``The Right to Vote.'' And Keyssar said that outside the South, 
the disenfranchisement laws ``lacked socially distinct targets 
and generally were passed in a matter-of-fact fashion.'' Even 
for the post-war, post-Civil War South, Keyssar has more 
recently written, in some States ``felon disenfranchisement 
provisions were first enacted by Republican government that 
supported Black voting rights.''
    I just do not think that you are going--you know, try as 
hard as you might, Professor Neuborne--I do not think that you 
are going to be able to get a majority, let alone ``all'' of 
the 48 States in the category of having racist intent----
    Mr. Franks. I would be interested in knowing what, Mr. 
Neuborne, what States you would suggest did that.
    Mr. Neuborne. What State?
    Mr. Franks. Yes, what States?
    Mr. Neuborne. Alabama. We know that, because the Supreme 
Court certified it. In Hunter v. Underwood, they struck it down 
as unconstitutional.
    Mr. Franks. You are suggesting all States----
    Mr. Neuborne. We know that there were--Florida, in 1868, 
when it enacted its constitution, and for the first time put in 
a criminal disenfranchisement to prevent newly freed Blacks.
    The constitutions of many of the States that were being 
readmitted to the Nation, for the first time begin to put in 
felon disenfranchisement, because they recognized that it is a 
very, very easy way to be able to minimize the ability of 
Blacks to vote.
    Mr. Clegg. No, no----
    Mr. Franks. Professor Clegg, I am out of time here, but I 
would like to have you respond.
    Mr. Clegg. Well, I would just say that none of those laws 
are on the books anymore.
    Mr. Neuborne. Yes, but their ancestors are on the books.
    The question is, what was the genesis--what we are talking 
about here is, was there a past in which it was clear that 
felon disenfranchisement was intentionally imposed to prevent 
Blacks from voting? And the answer is, of course there was such 
a past.
    Now the question is, is there a present in which the 
current incarnation of those laws is having a disproportional 
racial impact? And of course, the answer is yes.
    And then third is, is there power in Congress, once that 
happens, to say, given the racist past, given the racist 
impact, we can take this thing out once and for all, all over 
the country, just like we took out literacy tests. Because 
believe me, there were many States that did not have a history 
of racial discrimination with literacy tests.
    Mr. Franks. Professor Clegg, I will give you the final 
word.
    Mr. Clegg. Well, I will just say that Chief Justice 
Rehnquist in his Hunter v. Underwood opinion made it clear that 
a very different case would be presented if Alabama were to re-
pass the law without discriminatory intent. These laws are not 
on the books anymore. And I do not think that in most States 
they ever had discriminatory intent.
    And to say that, well, once you had a felon 
disenfranchisement law that might have had discriminatory 
intent, you are therefore forever barred from ever having--from 
ever saying that a criminal should not be able to vote--is not 
good constitutional law.
    Mr. Neuborne. And that is not what I am saying. I am simply 
saying that once you----
    Mr. Clegg. And I think, if it is not unconstitutional, then 
Congress is not going to have--does not have the authority to 
go in on a wholesale basis and cite that as evidence for why 
there has to be a national, one-size-fits-all standard 
superseding constitutional authority that is expressly given to 
the States.
    Mr. Neuborne. Well, I will just ask one last question, and 
I will ask Professor Clegg, why----
    Mr. Franks. I thought we were asking the questions up here, 
Mr. Neuborne.
    Mr. Neuborne [continuing]. Is the literacy test different? 
Why is the literacy test case different? That is all.
    Mr. Franks. Mr. Neuborne, I am going to--to the Chairman, I 
am going to yield back.
    Mr. Scott. Thank you.
    The gentleman from Michigan, Chairman of the full 
Committee, Mr. Conyers?
    Mr. Conyers. Is there credit being given in constitutional 
law for this course, Professor Scott? [Laughter.]
    This is a fascinating discussion.
    And I would like to continue it, because I think this 
hearing is very important. We have in the audience attorney 
Marc Mauer of the Sentencing Project, Charles Sullivan of CURE, 
not to mention all the distinguished witnesses you have called. 
And there are probably others in the audience that makes this 
hearing extremely important.
    There may be a requirement for us to have another hearing 
on this, because this is very fundamental. And I would like the 
discussion to keep going on, except that I just have to--I have 
been informed, Mr. Clegg, that you feel that the Voter Rights 
Act was and is unconstitutional?
    Mr. Clegg. I am sorry. The what act?
    Mr. Conyers. I said, I have been informed that you believe 
the Voters Rights Act was, and is, unconstitutional?
    Mr. Clegg. Yes, I think I told you that before you passed 
it. Unfortunately, you did not listen to me.
    Mr. Conyers. Well, I did not ask for any explanation. I 
just wanted to make sure that you had said that. I was not 
here.
    Mr. Clegg. Section 5 and Section 203, I believe----
    Mr. Conyers. You do not have to go any further. [Laughter.]
    Thank you.
    Mr. Clegg. I do not think that it is all unconstitutional.
    Mr. Conyers. Thank you, sir. I am trying to ask you the 
questions, and not you give me the lecture when I do not need 
it.
    Okay.
    Now, I wanted to spend some attention with Mr. von 
Spakovsky, because it is your view, I take it, that no one 
convicted of a felony should ever be allowed to vote again. Is 
that correct?
    Mr. von Spakovsky. That is incorrect, sir.
    Mr. Conyers. Oh.
    Mr. von Spakovsky. I think it is up to the States to decide 
that issue.
    Mr. Conyers. I see.
    Mr. von Spakovsky. If Congress wants to change the 14th 
Amendment, then I think they have to do it through a 
constitutional amendment.
    Mr. Conyers. All right. Then, is it your view that no 
felon, once convicted, should ever be allowed to vote?
    Mr. von Spakovsky. No, no. I----
    Mr. Conyers. I said, is that your view?
    Mr. von Spakovsky. No. I think they should get their vote 
back under certain circumstances.
    Mr. Conyers. Oh, okay. That is what I am trying to find 
out.
    But you are in a State that does have lifetime felony 
preclusion of anyone from voting. Is that right? Virginia?
    Mr. von Spakovsky. There is an application process----
    Mr. Conyers. Is that right? Yes or no.
    Mr. von Spakovsky. The answer is no. If you apply and meet 
the standards, you can get your right to vote back.
    Mr. Conyers. Well, I am getting help from my colleague----
    Mr. Scott. If the gentleman would yield?
    Mr. Conyers. Yes.
    Mr. Scott. In practice, and that is what happens, but it is 
totally discretionary with the governor.
    These governors have set some standards, and have said that 
they will follow, if you go with these good guidelines in so 
many years. But it is totally discretionary with the governor. 
And some governors have been much more liberal with their 
process, and others have been fairly stingy.
    Mr. Conyers. So, some governors have at some time granted 
someone the right to vote, even though they were formerly a 
felon. Is that right?
    Mr. von Spakovsky. I am sorry. In Virginia?
    Mr. Conyers. Yes, sir.
    Mr. von Spakovsky. Yes.
    Mr. Conyers. Okay, but not very many.
    Mr. von Spakovsky. I do not know what the numbers are.
    Mr. Conyers. You mean, you think there could be a lot of 
them could have gotten the right to vote back?
    Now, you are not really coming here as--are you a member of 
the Virginia Board of Elections?
    Mr. von Spakovsky. I am not a member of the Virginia Board 
of Elections.
    Mr. Conyers. Fairfax County.
    Mr. von Spakovsky. I was sworn in as a member, yes.
    Mr. Conyers. Oh, okay. So, maybe you would not know whether 
there were few or many. Okay.
    This is a great panel here. [Laughter.]
    I am going to implore that you and the Chairman see if we 
can continue this discussion, because it is, I think, very 
important. And I think the Subcommittee is doing a great 
service by having all of them here, including you. And I yield 
to you.
    Mr. Franks. Mr. Chairman, I am glad to see that. If 
Professor Clegg and Mr. von--I always have a tough time with 
his name--Spakovsky could get equal time on that, that would 
just tickle me to death.
    Mr. Conyers. Oh, that is great.
    What about Neuborne? [Laughter.]
    Mr. Franks. No, I would have to take the Fifth on that. 
[Laughter.]
    Mr. Conyers. Well, then, let me yield to him now, since you 
may not be able to get the equal time that some of the others 
would.
    Mr. Neuborne. As long as I can still vote.
    Mr. Conyers. Yes, we do not have any power to prevent 
anybody from voting. We wish we could encourage more people to 
vote, as a matter of fact. But sometimes I think we do not have 
much power to do that, Mr. Shelton.
    Please, where can we--can we reach any form of agreement 
among the seven of you here this afternoon in terms of the 
subject matter, which is presumably my legislation on this 
subject?
    Mr. Neuborne. If I may, congressman?
    I mean, one of the prerequisites of a law professor is to 
assign research to other people. And it seems to me that, from 
the disagreement that has emerged on the panel, one, I think, 
very important thing would be to assemble a definitive history 
of the use of felon disenfranchisement laws to prevent Black 
people from voting, because if that history does not exist, I 
agree with Professor Clegg, then, that it is much harder to 
find power to deal with it.
    It still might exist under the elections clause and under 
Section 5 of the 14th Amendment. But surely, the easiest place 
to look is Section 2 of the Fifteenth. And that requires the 
history of racial animus. And it seems to me that it is not 
beyond the power of experts to provide the Committee with an 
excellent history.
    And once that history exists, then I think it is logically, 
absolutely impossible to distinguish felon disenfranchisement 
from literacy tests. And then there is a unanimous decision of 
the Supreme Court in Oregon v. Mitchell, saying that you have 
the power to act.
    Mr. Conyers. Now, before I yield--and I see that Judy Chu 
is waiting patiently, and now we have been joined by Sheila 
Jackson Lee, so I am going to wrap this up.
    But could I ask a leader in the civil rights movement, 
Hilary Shelton, for any impressions that you could leave with 
us to help guide us as we move through this legal, historical, 
constitutional thicket, which most of us up here find totally 
fascinating--most of you there, as well. I would like to hear 
your views.
    And I will yield back my time, Mr. Chairman.
    Mr. Shelton. Well, thank you, Mr. Chairman. I agree with 
you that it is a fascinating conversation as we talk about many 
of the theories in our legal system.
    But the biggest concerns, of course, to organizations like 
the NAACP is the actual effect, what happens in practice. And 
quite frankly, what we have seen happen in practice is--I am 
happy to see my colleague from Florida sitting here--is 
something very, very different.
    We have, in effect, African Americans and many other racial 
and ethnic minorities locked out of the process, because of an 
assumption that indeed they are a felony offender--an 
assumption that very well they should be screened out unlike 
any others.
    As you talked about that 2000 election in Florida, what the 
NAACP experienced, quite frankly, when we went into Florida, 
was every African American male being asked at some polling 
sites whether indeed they had felony offenses on their record, 
but no one else being asked that question.
    And very well what that attitude is actually a form of 
discrimination that actually intimidated many of the African 
American and other Black voters, for that matter, that went 
into the polls to participate.
    The effect, again, is the disenfranchisement in large 
pockets in the most heavily concentrated African American 
cities in the country, where they are disenfranchised to a 
point there is no involvement, there is no political capital 
along those lines. And much, much of the very spirit of our 
democracy is then prohibited from being able to be implemented.
    So, indeed, it is a great conversation. But in many ways, 
as we look at what it means to everyday people, what it means 
to the very core of our democracy itself, raises major 
concerns.
    Mr. Scott. Thank you.
    The gentlelady from California, Ms. Chu?
    Ms. Chu. Thank you, Mr. Chair.
    I was interested in Mr. Clegg's testimony. And I wanted to 
give a chance for the others to respond to the rationale that 
was posed by your testimony, Mr. Clegg. And they had to do with 
the policy rationale for being against felony voting.
    First was the rationale that we should not let felons vote, 
just as we deny other groups the right to vote. So, we also, as 
you state, we also deny the vote to citizens and non-citizens 
and the mentally incompetent, because they, like felons, fail 
to meet the objective minimal standards of responsibility, 
trustworthiness and loyalty we require of those who participate 
in government.
    And so, Mr. Neuborne, or Mr. Wicklund, or any others that 
may want to respond, how are felons different from children 
citizens, non-citizens and the mentally incompetent?
    Mr. Neuborne. With respect, congresswoman, on the merits, 
the rest of the panel is so much better qualified than I am to 
talk about why it is so important to re-enfranchise convicted 
felons.
    I will say that the notion that somehow you would equate 
them with children or with mental incompetents, I mean, there, 
the reason you do not let them vote is because they lack the 
capacity to make the choices that goes to voting. But nobody 
suggests that when someone comes out of prison they lack the 
capacity for choice. So, of course, those are not helpful 
analogies.
    But the actual merits, I would ask my colleagues who know 
much more about it to respond.
    Mr. Clegg. Of course, I am not suggesting that they are, 
you know, incompetent or lack the facilities in the same way. 
Again, though, there are, these--as I said, we have these 
minimum standards of responsibility, loyalty and 
trustworthiness. And I think that--you know, I have nothing 
against children. I have children. But they are not as 
responsible as adults.
    And likewise I think that people who have committed serious 
crimes against their fellow citizens have shown that they, too, 
lack a sense of responsibility. And that this minimum level of 
responsibility is something that we demand of people if they 
are going to participate in the sacred enterprise of self-
government and making laws that they and everyone else are 
going to have to follow.
    Ms. Chu. Well, Mr. Wicklund or Mr. Sancho, do you have any 
response? Should felons be put in the same category as 
children, non-citizens and the mentally incompetent?
    Mr. Idarraga. Representative Chu, to respond briefly, I 
would say there is absolutely, actually no difference between 
ex-felons and normal citizens when it comes to voting. The 
analog between abridgement of voting rights, I do not think, is 
the gun rights or other type of--for example, myself, I will be 
up before the Bar committee one day of character and fitness, 
and they should rightly take into account my past.
    The analog is more the abridgement of a fundamental, core 
right, although voting is not a Bill of Rights right. But it is 
more--the analog is closer to abridging freedom of speech 
because you are an ex-felon, or any other of the freedom of 
religion, or what have you, because you are an ex-felon.
    It is fundamentally different than small children or the 
mentally incompetent, because of the reasons Professor Neuborne 
stated. But I think, if anything, the rationale should swing 
the other way. We would want people invested in their 
communities, reintegrated into communities, and have them 
become stakeholders in their communities.
    This--is at the end of a very troublesome chain. And that 
begins with problems in the criminal justice system too far for 
this Committee to handle, to take up in this instance.
    And another thing I want to point out is, Professor Clegg 
spoke that we do not want violent offenders making laws for 
other people. The fact is, I believe, in Rhode Island it was 
close to 80 percent of people disenfranchised were non-violent 
offenders, low-level drug offenses.
    We are disenfranchising people because of the over-
criminalization on the front end of things, which has a very 
disparate impact and troublesome impact on the back end of 
things.
    Mr. Clegg. I do not think I drew a distinction between 
violent and non-violent offenders.
    Ms. Chu. Well, actually, though, I see this in your 
testimony right here, because I am reading right from it. But 
because--you say that there should not be a Federal law 
allowing felons to vote, because, ``Some crimes are worse than 
others, some felons have committed more crimes than others, and 
some crimes are recent while others are long past.''
    That is a quote, actually, from your testimony.
    So, then, my question would be to the rest of the panel, 
should there be a differentiation allowing a felon the right to 
vote, based on the degree of the crime? And if not, why not?
    Mr. Sancho. In Florida, I would like to point out that we 
had an explosion in individuals' loss of the right to vote when 
the Florida legislature decided to make writing a bad check a 
felony. And it raises the issue of, is this the serious crime 
that had been identified, for example, with rebellion that was 
part of the constitutional framework that has been previously 
mentioned.
    And I seriously think it is not, but these kinds of felony 
laws have the same pernicious effect. And in fact, in Leon 
County had the effect of removing individuals that had worked 
for years as election workers.
    And one personal case that I am aware of, a young mother 
who, in fact, wrote a bad check to a grocery store to feed her 
son, could no longer work.
    And this kind of--in Florida, they have tagged these 
economic elements, so that once you are a felon, you no longer 
can do basic kinds of non-professional work, such as you cannot 
be a barber, you cannot be a roofer, you cannot be a 
contractor, you cannot be a cosmetologist.
    Well, these are whole categories of non-professional 
workers, which now, the loss of your right to vote and your 
civil right has now removed you from being able to economically 
serve the purpose that, in my opinion, we established this 
great Nation, was to pursue happiness to the highest and best 
degree that we can. And this right to vote has been kind of a 
hammer that has now put the Nation in a Catch-22 posture, 
where, is this the kind of crime we are talking about?
    Yet we are now preventing the individual, as in Tennessee, 
who they are going to be in prison, they are going to fall 
behind in their ability to make the child payment. They are 
going to now permanently be in this Catch-22 where they will 
not be able to get their right to vote restored. And we have 
done that in Florida. We have done that across the States.
    And I think we need to rationalize this process and remove 
what is clearly now, in my own opinion as a humble Florida 
election official, a partisan tool to attempt to reduce the 
other side's troops and votes. And I think that is not where we 
want to be, and we have got to reverse that posture in this 
Nation today.
    Mr. Clegg. I agree that there are all kinds of contexts 
where drawing distinctions between different kinds of crimes 
can make sense, and including in the re-enfranchisement of 
felons. But that is exactly what this statute does not do. And 
I think it would be very difficult for Congress at the Federal 
level to engage in that kind of fine-tuning.
    This is another policy reason--wholly apart from the 
constitutional reasons--this is another policy reason why I 
think it is a mistake for Congress to leap in here and try to 
write a one-size-fits-all statute that is going to apply to all 
States--states which are constantly changing what is a felony, 
what is not a felony, constantly changing the--you know, 
passing new laws and rescinding old laws. It is simply 
unworkable for the Federal Government to engage in the kind of 
fine-tuning that is being urged here.
    Mr. Sancho. But I actually believe it is just the opposite, 
sir, because what we have done by these crazy patchwork of laws 
is make it impossible for election administrators to properly 
determine who is properly ineligible or eligible. And, in fact, 
as the report that I have presented from Florida from last 
March, many Florida election officials actually illegally 
barred individuals from registering. And I think this problem 
is occurring in the election administration area all across the 
country.
    A bright line, a simple test to ensure that citizens may 
vote in Federal elections is exactly what we have to do, if we 
want to pursue, I believe, fundamental----
    Mr. Clegg. Well, the bright line that you have is one--it 
is a bright line all right, and it makes no distinction between 
espionage, treason, murder, writing bad checks--right, 
whatever. They are all in the same category. That is a bright 
line.
    Ms. Chu. I see my time has long since expired. So, I yield 
back.
    Mr. Scott. Thank you.
    The gentleman from Tennessee, Mr. Cohen?
    Mr. Cohen. Thank you, Mr. Scott. And I want to thank you 
for holding this hearing. And indeed, I have already thanked 
Mr. Conyers for presenting the bill.
    I understand that part of my opening statement was either 
confused or misunderstood. And when I said that the argument 
that this was possibly not constitutional, that we should find 
a way to make it constitutional--or what exactly the verbiage I 
used, I am not sure--was basically saying what Mr. Neuborne 
said. Mr. Neuborne believes it is totally constitutional and 
totally proper.
    But, you know, after Plessy v. Ferguson, there were a lot 
of people that said that was the law of the land. And it went 
on for 58 more years until Thurgood Marshall had the good sense 
and the courage to bring a case to the Supreme Court and say, 
no, separate was not equal. And Brown v. Board of Education 
changed all that.
    And sometimes you can take a position that something is the 
law, and that there is not standing, or that there is not 
venue, but the courts can find it.
    Now, the words ``manner of election'' in Florida, who was 
allowed to vote determined who was President of the United 
States. And that affected people in all 49 States. And there 
should be a basis where, in an election for President of the 
United States, if you vote in Florida, or you cannot vote in 
Florida but you could vote in Michigan, it is not fair.
    People should be able to have the same standards by which 
they vote to elect the President of the United States--in my 
opinion.
    And in my opinion, we ought to find arguments and make 
arguments that hopefully a court will accept. I have little 
faith in this Court that we have right now to accept those 
arguments--or any arguments.
    But we need to make progress in this country. And this is 
2010. You know, there were citings--and I understand the 
citings, you hear them on the floor, and I use them, too--
Founding Fathers, what Alexander Hamilton thought. Alexander 
Hamilton did not think women should vote, and he did not think 
African Americans should be free. And he did not think, if you 
did not own property or could not pass some literacy test, that 
you should be able to vote, either.
    And Thomas Jefferson said, constitutions should not be seen 
as sacrosanct. But like children who outgrow their clothing, 
they should be able to adjust as they grow and fit new clothes, 
and fit new ideas.
    And the idea that we should be trapped in a mentality that 
denies people a chance to vote, that because they committed a 
wrong at one time means they are perpetually wrong and never 
have an opportunity, is, I think, antithetical to the basis of 
the founding of this Nation and what this Nation is supposed to 
stand for.
    Now, I know the organization Mr. Clegg represents, Center 
for Equal Opportunity, it is a confusing name. Because usually 
when you see Center for Equal Opportunity, you think of 
something else. You know, I know in George Orwell, he wrote 
about the Department of Peace that waged war, the Department of 
Education that burned books.
    So, I guess it is all right, because of that great literary 
classic, to have something called the Center for Equal 
Opportunity. But I would submit to you, what you are talking 
about is not equal opportunity. It is saying that one time 
burned, forever scorched.
    And as I mentioned--and I think somebody here referenced 
Hester Prynne, I think it was Mr. Sancho--you should not have a 
perpetual scarlet letter. The idea that people can become good 
citizens--and the fact is, in most elections, not more than 25 
percent of those in a good election year take the opportunity 
to vote and exercise their freedoms and their franchise.
    So, if you take these people who were supposed to be the 
bottom of the barrel, and give them the opportunity, they have 
got a chance by their proof, to show by going to the polls that 
they are better than 75 percent of the country that neglects 
their opportunity to vote.
    But give them a chance. And if they want to vote, 
obviously, they are better citizens than you think.
    But I would submit to you that this legislation is 
appropriate.
    I appreciate Mr. Neuborne's well-reasoned argument, that 
just like the literacy test in 1965, the people came up here 
and said, oh, that is not the law, and you cannot do it, just 
like people said, civil rights is not the law and you cannot do 
it, that America needs to bring its resources together and its 
best legal talent to formulate arguments to present to a court 
that hopefully will accept them, and move this country out of 
where it is in certain of these laws, which are vestiges of Jim 
Crow.
    Now, Mr. Clegg, I would like to ask you a question. Do you 
think that Jim Crow laws still have an effect on society today, 
that people have been affected by those laws, and that they are 
disenfranchised and/or disadvantaged because of the long 
history of Jim Crow laws in this Nation?
    Mr. Clegg. Yes, I do.
    Mr. Cohen. You do? Well, where under equal opportunity do 
they get some extra opportunity, because of the fact that they 
are starting with a weight around their ankle?
    Mr. Clegg. Well, I think that there are--the playing field 
is not level in many different ways. But I think that there are 
people of all colors at both ends of the playing field. And I 
think that where you and I may differ is that I do not think 
that you should use skin color as a proxy for whether somebody 
is poor or not, or whether somebody is disadvantaged or not.
    If you want to have programs--and we may be able to agree 
on some programs--that help people who come from disadvantaged 
backgrounds, who are poor, who live in poverty.
    Mr. Cohen. Let me ask you this. Mr. Clegg, the question I 
asked was about Jim Crow. Jim Crow was targeted at African 
Americans. Tell me where you agree that Jim Crow laws that 
targeted African Americans still affect African Americans 
today. And how can we remedy that?
    Mr. Clegg. I think that--well, I would have to give you an 
example. You could probably without too much difficulty show 
that an individual living in poverty can trace that poverty to 
the fact that his father was not able to get a good education 
because of Jim Crow laws. You can do that.
    However, there are--I do not think that you should say, 
okay, well, therefore, we are going to make a program available 
to you. This other person over here, he is poor, but the reason 
he is poor is because he just immigrated from Mexico.
    Mr. Cohen. But the government of the United States----
    Mr. Clegg. And the person here is poor----
    Mr. Cohen. Mr. Clegg----
    Mr. Clegg [continuing]. Because he just came over----
    Mr. Cohen. Mr. Clegg----
    Mr. Clegg [continuing]. On a boat from Southeast Asia.
    Mr. Cohen. Mr. Clegg----
    Mr. Clegg. But you do not hear about them.
    Mr. Cohen. Look at me, and let me give you something. But 
question is, with Jim Crow laws, the States of this government, 
under the permission of the United States government, passed 
laws to keep those people as second-class citizens. Nobody 
passed any laws saying that people came over in boats, like my 
great-grandfather did, had to be second class. There were no 
laws on the books.
    This government passed laws and said, you cannot go to 
water fountains. You cannot go to theaters. You cannot have 
jobs. You cannot have contracts. And that happened.
    So, how do you rectify the lingering consequences of Jim 
Crow?
    Mr. Clegg. My point is that the poverty and so forth, the 
disadvantages that people suffer because of Jim Crow, can be 
remedied. But there is no reason to----
    Mr. Cohen. How do you do it? Tell me how you do it.
    Mr. Clegg [continuing]. And deny people opportunity----
    Mr. Cohen. Tell me how you do it. Don't tell me how you--
these other people, don't put them on the same boat. How do we 
help these people that this government, this life, liberty and 
pursuit of happiness, that enslaved people, and then did it 
through laws passed by legislatures and Congresses, how do you 
help those people?
    Mr. Clegg. If you have somebody who is in poverty, you can 
have programs that provide, you know, better educational 
opportunities, that provide, you know, a Head Start program, or 
something like that, scholarships, special mentoring programs. 
There are all kinds of programs----
    Mr. Cohen. And if I go to your Web site, will I see those 
types of----
    Mr. Clegg. My point is that----
    Mr. Cohen. If I go to your Web site, will I find your Web 
site showing programs like that that you espouse and advocate?
    Mr. Clegg. Yes. And you will find it made very clear that 
we have no objection at all to programs that improve the 
opportunities for disadvantaged people, without regard to race 
or ethnicity.
    And that is why--I mean, you know, you were criticizing as 
misleading the name of my organization. The reason that we are 
the Center for Equal Opportunity is to draw a distinction 
between those who believe in equal opportunity, which we do, 
and those who believe in racially mandated equal results, which 
is something that we reject.
    We do not like quotas. We believe in e pluribus unum. We do 
not think that statutes and laws that give preference on the 
basis of race and ethnicity are constitutional or good policy.
    And let me just say, Congressman Cohen, you know, my notes 
show that when you were giving your opening statement, you used 
the phrase ``get around it,'' referring to the Constitution. I 
do not think----
    Mr. Cohen. You cannot get around the Constitution. You have 
got to make a good argument. And that is what I was submitting. 
When I say ``get around,'' I mean get around the mentality that 
you have got, that it is set in stone, and that you do not have 
jurisdiction.
    I am submitting that Mr. Neuborne is right, and that you 
can make an argument that there is jurisdiction, and there is, 
in my opinion--and Mr. Neuborne made it. And that is what I 
mean. I meant get around your mentality that says there is not, 
and therefore, do not try to make progress.
    My time has expired, and I thank Mr. Scott for the hearing.
    Mr. Neuborne. Can I----
    Mr. Clegg [continuing]. To get around the Constitution. And 
with all respect, I think that that is a very troubling 
attitude for somebody who has taken an oath to the Constitution 
to have.
    Mr. Neuborne. Can I congratulate you, Representative Cohen, 
on putting into my mind an argument that I should have thought 
of, but did not? But it is another very powerful reason why you 
have authority to pass it.
    It is astonishing to me that somebody, that a felon, or 
somebody who has been convicted of passing a bad check in 
Florida cannot vote, but somebody who is convicted of passing a 
bad check in Georgia can vote.
    Now, that is the kind of irrational discrimination on the 
ability to vote that should trigger the 14th Amendment's power 
under Section 5 of the 14th Amendment.
    The passage of uniform criteria that would sand down 
irrational differences State to State on whether you can vote 
for President of the United States, seems to me clearly within 
this Committee's power without the necessity of going to the 
15th Amendment. It is a 14th Amendment argument. And I did not 
think of it until you were making your point.
    Mr. Cohen. Mr. Chairman, I want to thank Mr. Neuborne. I 
also want to let Mr. Clegg know that congress people get the 
last word.
    And after I closed, and you questioned my taking my oath of 
office, which I take seriously, let me submit to you that Dr. 
King said so appropriately, that sometimes when the laws are 
wrong, it is all right to resist them, because they are 
inherently wrong and morally wrong.
    And what I am submitting is, arguments can be made, not to 
subvert the Constitution, but to change the Constitution, to 
change the law of this land. Because you change it through 
arguments. And words have meaning, and you put flesh on them.
    Thank you very much.
    Mr. Scott. The gentlelady from Texas?
    Ms. Jackson Lee. Thank you very much, Mr. Chairman.
    Mr. Neuborne, you have gotten us just at that burst of 
thought and analysis to where we need to be with this 
particular legislation and why this legislation should move as 
expeditiously as it can. As we have listened to all of the 
testimony, I think we have come to a point to recognize there 
is discrimination.
    For example, in the State of Maine and Vermont, we have 
Members of Congress who are here. The State of Maine has no 
disenfranchisement for people with criminal convictions. Except 
for their philosophy and the representation of their State, I 
see no difference in the Members of Congress from the States of 
Maine and Vermont.
    They do not act erratically. They do not seem to espouse 
unconstitutional or unpatriotic statements. They do not seem to 
be perpetrating criminal acts or supporting freeing all 
criminals across America.
    But yet, felons, apparently, in Maine and Vermont can vote. 
So you make a very valid point.
    And as I look at the whole list, and I see some States with 
some forms of release or opportunity to vote, and some were 
not, we have a constitutional question of whether or not it is 
a discriminatory practice across the Nation, because there is 
inconsistency.
    And I may steal or have a bounced check in Texas--which, by 
the way, for the first time in this Judiciary Committee, I can 
actually say a kind word on the criminal justice system about 
Texas. At least they have a compromise, and that is 
attributable to State Representative Harold Dutton and others, 
who have worked so without ceasing on this issue.
    But it seems to me, if I have a bounced check in Texas, and 
I go to another place, am I a felon there and cannot vote? I 
was able to vote in Texas, but I have to go to another State, 
because I am being relocated because of my spouse. Can I vote?
    That is a patently discriminatory practice, and I think 
that it cries out for relief.
    I hope that the court reporters captured your analysis 
there, because we need to rush right immediately, even in an 
amendment form, to make sure we attributed the framework of 
this bill to, I believe you said the 14th Amendment and Section 
5 under that, to be able to deal with it.
    But let me ask Mr. Spakovsky. Could he tell me when slavery 
ended in Virginia?
    Mr. von Spakovsky. Well, it ended at the end of the Civil 
War. But after Reconstruction, as many people know, many of the 
southern States, including Virginia, implemented Jim Crow laws 
to suppress the rights of Black citizens.
    Ms. Jackson Lee. And during that time, slavery, and then, 
as you indicated, Reconstruction and Jim Crowism, could Black 
citizens vote?
    Mr. von Spakovsky. Only if you look at the percentages of 
registration and turnout. It varied over time. It was a very 
small amount----
    Ms. Jackson Lee. No, let me go back----
    Mr. von Spakovsky [continuing]. Depending on what period 
you were looking at.
    Ms. Jackson Lee. All right. The slaves that were enslaved, 
could they vote in Virginia?
    Mr. von Spakovsky. I am sorry. When they were----
    Ms. Jackson Lee. At the time that slavery was----
    Mr. von Spakovsky. No, of course, no.
    Ms. Jackson Lee [continuing]. In place, they could not 
vote.
    Mr. von Spakovsky. No.
    Ms. Jackson Lee. During Jim Crow, could Africans, negroes 
or colored people vote in Virginia?
    Mr. von Spakovsky. A small percentage could, depending on 
where you were and in what years you are looking at. But the 
percentages were very small, because of the efforts made to 
suppress their registration and voting.
    Ms. Jackson Lee. Do you think that was a good thing?
    Mr. von Spakovsky. I am sorry. What?
    Ms. Jackson Lee. Do you think that was a good thing?
    Mr. von Spakovsky. Well, of course not.
    Ms. Jackson Lee. In the instance of your State--and I think 
you are on the elections law, and it seems as if you have a 
complete bar with individuals of felony convictions, which I 
imagine are an array of different acts, except for government 
approval of their individual rights, which I imagine there is 
some process--you do not see that as a restoration of slavery?
    Mr. von Spakovsky. I do not.
    Ms. Jackson Lee. Because I do.
    Mr. von Spakovsky. No.
    Ms. Jackson Lee. To completely bar a person who has served 
their time and seeks to restore their contributions to society, 
that you would bar them, are they not enslaved to the extent 
that their constitutional rights, or rights to express 
themselves, is then denied?
    Mr. von Spakovsky. I do not agree. The State of Virginia 
has an application process, so people can apply after a certain 
period of time to get that right back--and the other rights 
that are taken away----
    Ms. Jackson Lee. And how many do you think----
    Mr. von Spakovsky [continuing]. Such as not the right----
    Ms. Jackson Lee. How many do you think apply?
    Mr. von Spakovsky [continuing]. To serve on a jury or to 
serve in elected office.
    Ms. Jackson Lee. How many do you think apply to this 
process? Do you have any percentages?
    Mr. von Spakovsky. I do not have the numbers or percentages 
on----
    Ms. Jackson Lee. Mr. Leon, I think--no, you are from the 
state of Leon, excuse me. You are from--Mr. Sancho, let me 
thank you for having a bright light on this concept. And I 
think you have made a very important point.
    You recall the election of 2000, when the database came 
from the State of Texas, and represented that there were many 
more felons in your State than there actually were.
    What kind of crisis did that pose for you? It seems like 
you were in--I know this was particularly around Florida A&M, 
when individuals were trying to vote. There were allegations 
that Black men were arrested walking toward the poll. 
Obviously, a lot of that was investigated.
    But what does that do to the election process?
    Mr. Sancho. It destroys the people's faith that, in fact, 
elections have any validity at all. That is what it does.
    And I will tell you that today, that there are portions of 
the State of Florida around Duval County, where there are large 
populations of African Americans in South Florida, where, in 
fact, people do believe that, in fact, there is no right to 
vote because of that experience. And it is going to take a 
long, long time to reestablish in their minds that this is, in 
fact, a Nation of laws and justice.
    Ms. Jackson Lee. You made another point, and I would like 
to ask Mr. Andres, so I need to get the pronunciation of his 
last name. I will call on you in just a moment. But you made a 
very valid point that ties into this whole issue.
    Mr. Spakovsky did not want to acknowledge that the 
oppression of a person who has finished their time, and has to 
be subjected to an application process, is like slavery. As far 
as I am concerned, it is like slavery.
    And although Virginia may have ended the formal slavery of 
African Americans, or colored people, negroes, at a period of 
time past Jim Crowism, there are people who are presently 
enslaved with the complete denial of any right to be re-
enfranchised, except for an application process.
    But you expanded your point, and that was the point that 
people cannot be barbers, or cannot be beauticians. And I think 
some of that spills over into our other States. This is not a 
case for that right now.
    But what it says is that we have a completely oppressive 
system that has people in third class citizenship. Is that what 
I am hearing from you, Mr. Sancho, in the voting sense?
    Mr. Sancho. Well, it does. These individuals have become a 
permanent underclass in the State of Florida. And it is a drag 
on every element of our social institutions--education, social 
welfare programs--and it impacts on the right to vote.
    We are a jurisdiction in Leon County that believes in 
access. Leon County, in fact, is the southern-most extension of 
the Old South plantation. There is only about a 12 percent 
population of African Americans in the State of Florida.
    But in the panhandle, that average is much higher. We are 
near 35 percent. My neighboring county, Gadsden, is the only 
majority minority county in the State of Florida.
    And you can see the economic destruction that our own lack 
of restoring the ability to people to integrate themselves into 
society has left. It is a terrible legacy.
    We tried to overcome that in Leon County. We have a lot of 
great educational institutions at Florida State and Florida 
A&M. And in our jurisdiction, our jurisdiction is the highest-
voting jurisdiction in the State of Florida. We had an 86 
percent turnout in the last general election.
    Ms. Jackson Lee. But this bill would help you, if this was 
to be passed. This bill would help if this was to be passed, to 
give more empowerment to individuals.
    Mr. Sancho. I believe it would. I believe that people would 
no longer have to avert their eyes when I am doing voter 
registration drives, because I challenge people to register to 
vote. I encourage them.
    And you can see the individuals who have this permanent 
shame that has scarred their soul. They will not even look me 
in the eye. They cannot even answer. They just shake their 
heads and----
    Ms. Jackson Lee. I have seen that, too.
    Mr. Sancho [continuing]. Just cannot register to vote.
    Ms. Jackson Lee. Mr. Chairman, if you would indulge me, 
just to get this last question to--is it Mr. Aradarra?
    Mr. Idarraga. Idarraga.
    Ms. Jackson Lee. Idarraga, thank you so very much. You are 
a living example. Six years incarcerated, if I am correct?
    Mr. Idarraga. Yes.
    Ms. Jackson Lee. And presently at Yale Law School. What 
State would you call your residence at this point, sir?
    Mr. Idarraga. I would say I am a permanent resident of 
Rhode island, and a temporary resident of Connecticut.
    Ms. Jackson Lee. All right. And I have to find Rhode Island 
here, but the point is, you are redeeming, in essence, you are 
restoring your life. You are being rehabilitated.
    What is your response to what seems to be the enslavement 
of individuals who have previously been incarcerated? It seems 
to be a constant state of slavery, because they are not allowed 
to exert their constitutional rights or the right to vote. What 
is your perception of that?
    Mr. Idarraga. I would say, at the very least, when you are 
in a distressed community, and you see the law basically 
working against you at many steps of the way, and that is all 
you know, that is all you see, it just creates a natural 
antagonism to the law and to the legitimacy of the law.
    I think when we embrace individuals that--we give them the 
rights that are fundamental at the core of citizenship, it at 
least tells them that the law will not work unequally. It 
invests them in the democratic process.
    I think it is nonsensical to restrict the right to vote for 
ex-felons, just like it is nonsensical----
    Ms. Jackson Lee. There is a representation that you are not 
competent, that you would be incompetent, and that you are not 
worthy. What do you say to that?
    Mr. Idarraga. Tremendously. Even as a student at Yale Law 
School, I may go through an interview process and then have to 
bring up my past. And in that context, people take a step back, 
and that scarlet branding is very evident, even for myself.
    For a person that does not even have that credential, I 
could just only imagine the obstacles they have to face. They 
are living under permanent second, third class citizenship with 
a tremendous scarlet branding that they have to walk around 
with----
    Ms. Jackson Lee. But do you think they are incompetent, 
that they should not be able to vote, because they are 
incompetent?
    Mr. Idarraga. Absolutely not. Absolutely not.
    In Rhode Island, out of the 15,000 that were re-
enfranchised, 6,000 registered to vote. And many, many people 
that I knew personally, because the place where I grew up was a 
small place, called me, told me about some of the things they 
were thinking through, thanked me, went to the polls with their 
children.
    They are absolutely not incompetent, and they are much 
smarter than we give them credit for.
    Ms. Jackson Lee. Thank you, Mr. Chairman.
    I would just--I am sorry, if I could yield to Mr. Wicklund? 
Yes, sir.
    Mr. Wicklund. I just wanted to add that there are so many 
collateral consequences that go with a felony conviction.
    There are many collateral consequences that go with felony 
convictions, and some make sense. For instance, there are some 
restrictions. You do not want a pedophile driving a school bus. 
But at the same time, you know, should a burglar never get to 
be a barber?
    And there are also collateral consequences, such as your 
criminal history never goes away. I mean, just ask any of these 
mining and harvesting of information companies that are buying 
criminal justice information and selling it to employers and 
apartment renters, et cetera. However, even the ones that make 
sense are there because the felon, the past felon, creates some 
sort of risk to the community.
    There is no risk in having someone vote. How does that hurt 
anybody? And in fact, they can then vote to eliminate some of 
these barriers that are in their way of actually becoming 
participatory citizens.
    Ms. Jackson Lee. Mr. Chairman, I thank you.
    I was at a meeting, Mr. Chairman, I will just put on the 
record, with what I would think informed persons. And we were 
talking about Federal funding. An informed government official 
said to me, well, I believe that if it is Federal funding, ex-
felons cannot get a job.
    This is about voting. I understand that. But I believe it 
is also about lifting the burden of slavery on ex-felons. That 
what it is, plain and simple--enslaved.
    So, the constitutional rights, the 13th, 14th and 15th 
Amendment, has just been voided, whether they are White, 
Hispanic, African American or Asian. How many people can we 
keep enslaved in the United States of America in the 21st 
century?
    I would argue that this legislation is long overdue, and 
would hope that we could move it forward as quickly as 
possible. I yield back to the Chairman.
    Mr. Scott. Thank you.
    And I want to thank all of our witnesses. This has been 
very informative.
    There seems to be a fairly universal consensus that we may 
be able to do something. There is not a consensus on the bill 
yet. But certainly, if we can show intent, and target it to 
those where we can show that intent, there seems no question. 
There seems to be a question about what we can do if we cannot 
show the intent, but we can show impact.
    But we want to thank all of our witnesses for helping us 
out today.
    Without objection, all Members will have 5 legislative days 
to submit to the Chair additional written questions for the 
witnesses, which we will forward, and ask the witnesses to 
respond to as promptly as they can, so the answers may be made 
part of the record.
    Without objection, all Members will have 5 legislative days 
to submit any additional materials for inclusion into the 
record.
    And with that, without objection, the Subcommittee stands 
adjourned.
    [Whereupon, at 4:15 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

Prepared Statement of the Honorable John Conyers, Jr., a Representative 
  in Congress from the State of Michigan, Chairman, Committee on the 
Judiciary, and Member, Subcommittee on the Constitution, Civil Rights, 
                          and Civil Liberties
    Last Congress, President Bush signed the Second Chance Act into 
law, signaling a greater awareness of the need to implement policies 
that assist in the reintegration of ex-offenders into their 
communities. I believe that the Democracy Restoration Act is the next 
logical step for restoring ex-offenders to their fullest participation 
in civic life and merits our support.
    When this Subcommittee last held a hearing on ex-offender 
disenfranchisement legislation in October, 1999, the news was somewhat 
discouraging, as millions of citizens across the nation were 
permanantly barred from the polls. Since that time, I can report that 
bipartisan reform efforts like this legislation have gained traction at 
the state level. Democrat and Republican governors alike--including 
then-governor George Bush of Texas--have seen that this issue is not 
about who wins elections, but about constitutional principles.
    The Sentencing Project reports that, since 1997, 19 states have 
amended felony disenfranchisement policies in an effort to reduce their 
restrictiveness and expand voter eligibility. These reforms have 
resulted in more than 760,00 citizens regaining their voting rights. 
Yet, despite these reforms, more than 5 million American citizens were 
ineligible to vote in 2008's historic Presidential election because 
they have a felony conviction. Almost 4 million of these people--many 
of whom work every day and pay their taxes--reside in the 35 states 
that still prohibit ex-offenders who have completed their sentences, or 
who are on probation or parole, from voting.
    As a matter of principle, I believe that such prohibitions on the 
right to vote undermine both our voting system and the fundamental 
rights of people with felony convictions. Disenfranchisement laws 
isolate and alienate ex-offenders, and serve as one more obstacle in 
their attempt to successfully put the past behind them by fully 
reintegrating into society. But that is only half the story.
    There are three grave discrepancies in State laws regarding felony 
convictions that lead to unfairness in Federal elections. First, there 
is no uniform standard for voting in Federal elections, which leads to 
an egregious disparity and unequal participation in Federal elections 
based solely on where a person lives.
    Second, laws governing the restoration of voting rights after a 
felony conviction are unequal throughout the country and persons in 
some States can easily regain their voting rights while in other States 
persons effectively lose their right to vote permanently.
    Third, State disenfranchisement laws disproportionately impact 
ethnic minorities, thus adversely infringing upon citizens of these 
communities constitutional right to vote.
    These concerns about ex-offender disenfranchisement are not 
rhetorical. Laws that continue to disenfranchise people after release 
from prison create the opportunity for erroneous purges of eligible 
citizens from the voting rolls, are difficult to administer, and 
generate needless confusion among election officials and the public.
    For example, although people with misdemeanor convictions never 
lose the right to vote in Ohio, in 2008 30% of election officials in 
the state responded incorrectly or expressed uncertainty about whether 
individuals with misdemeanor convictions could vote. This kind of 
confusion has resulted in barriers to legal voter registration and 
flawed voter purges that have deprived legitimate voters of their 
rights. Only federal law can conclusively resolve the ambiguities in 
this area plaguing our voting system.
    This legislation is a narrowly crafted effort to expand voting 
rights for people with felony convictions, while protecting state 
prerogatives to generally establish voting qualifications. The 
legislation would only apply to persons who are not in prison, and it 
would only apply to federal elections. As such, our bill is fully 
consistent with constitutional requirements established by the Supreme 
Court in a series of decisions upholding federal voting rights laws.
    In past Congresses, voting restoration legislation has been 
supported by a broad coalition of groups interested in voting and civil 
rights, including the NAACP, ACLU, the National Council of Churches 
(National and Washington Office), the National Urban League, the Human 
Rights Watch, The Brennan Center for Justice and the Lawyers Committee 
for Civil Rights, among many others.
    This coalition has expanded to include many law enforcement groups 
including the American Probation and Parole Association, the 
Association of Paroling Authorities International and the National 
Black Police Association, among others, who recognize that allowing 
people to vote after release from prison helps rebuild ties to the 
community that motivate law-abiding behavior.
    The practice of many states denying voting rights to ex-offenders 
represents a vestige from a time when suffrage was denied to whole 
classes of our population based on race, gender, religion, national 
origin and property. Even today, Courts have made a similar link and 
found that ex-offender disenfranchisement statutes can be racially 
discriminatory--violating the Voting Rights Act. Just like poll taxes 
and literacy tests prevented an entire class of citizens, namely 
African Americans, from integrating into society after centuries of 
slavery, ex-felon disenfranchisement laws prevent people from 
reintegrating into society after they have served their time in prison.
    Ultimately, I believe that our nation fails not only people with 
felony convictions by denying them the right to vote, but the rest of 
out society as well. America has struggled throughout its history to 
ensure that its citizenry be part of legitimate and inclusive 
elections. It is long overdue that these restrictions be relegated to 
unenlightened history. I look forward to hearing from today's witnesses 
as we build the record in support of passing this critical civil rights 
legislation.

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