418 U.S. 24 (1974)

[Edited for course use.]

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

OPINION:  [*26]   [***555]   [**2658]  MR. JUSTICE REHNQUIST delivered the opinion of the Court.

The three individual respondents in this case were convicted of felonies and have completed the service of their respective sentences and paroles. They filed a petition for a writ of mandate in the Supreme Court of California to compel California county election officials to register them as voters. They claimed, on behalf of  [*27]  themselves and others similarly situated, that application to them of the provisions of the California Constitution and implementing statutes which disenfranchised persons convicted of an "infamous crime" denied them the right to equal protection of the laws under the Federal Constitution. The Supreme Court of California held that "as applied to all ex-felons whose terms of incarceration and parole have expired, the provisions of article II and article XX, section 11, of the California Constitution denying the right of suffrage to persons convicted of crime, together with the several sections of the Elections Code implementing that disqualification . . . , violate the equal protection clause of the Fourteenth Amendment."

Article XX, 11, of the California Constitution has provided since its adoption in 1879 that "[laws] shall be made" to exclude from voting persons convicted of bribery, perjury, forgery, malfeasance in office, "or other high crimes." At the time respondents were refused registration, former Art. II, 1, of the California Constitution provided in part that "no alien ineligible to citizenship, no idiot, no insane person, no person convicted of any infamous crime, no person hereafter convicted of the embezzlement or misappropriation of public money, and no person who shall not be able to read the Constitution in the English language and write his or her name, shall ever exercise the privileges of an elector  [*28]  in this State." . . . California provides by statute for restoration of the right to vote to persons convicted of crime either  [*30]  by court order after the completion of probation, n6 or, if a prison term was served, by executive pardon after completion of rehabilitation proceedings. . . .

Each of the individual respondents was convicted of one or more felonies, and served some time in jail or prison followed by a successfully terminated parole. . . . All three respondents were refused registration because of their felony convictions. . . .

 [*41]   II

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

"Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number  [*43]  of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State." (Emphasis supplied.)

Petitioner contends that the italicized language of 2 expressly exempts from the sanction of that section disenfranchisement grounded on prior conviction of a felony. She goes on to argue that those who framed and adopted the Fourteenth Amendment could not have intended to prohibit outright in 1 of that Amendment that which was expressly exempted from the lesser sanction of reduced representation imposed by 2 of the Amendment. This argument seems to us a persuasive one unless it can be shown  [***565]  that the language of 2, "except for participation in rebellion, or other crime," was intended to have a different meaning than would appear from its face.

 [**2666]  The problem of interpreting the "intention" of a constitutional provision is, as countless cases of this Court recognize, a difficult one. Not only are there deliberations of congressional committees and floor debates in the House and Senate, but an amendment must thereafter be ratified by the necessary number of States. The legislative history bearing on the meaning of the relevant language of 2 is scant indeed; the framers of the Amendment were primarily concerned with the effect of reduced representation upon the States, rather than with the two forms of disenfranchisement which were exempted from that consequence by the language with which we are concerned here. Nonetheless, what legislative history there is indicates that this language was intended by Congress to mean what it says.

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

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

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

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

 [*45]  Throughout the floor debates in both the House and the Senate, in which numerous changes of language in 2 were proposed, the language "except for participation in rebellion, or other crime" was never altered. The language of 2 attracted a good deal of interest during the debates, but most of the  [***566]  discussion was devoted to its foreseeable consequences in both the Northern and Southern States, and to arguments as to its necessity or wisdom. What little comment there was on the phrase in question here supports a plain reading of it.

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

"The second section of the amendment simply provides for the equalization of representation among all the States of the Union, North, South, East, and West. It makes no discrimination.  [**2667]  New York has a colored population of fifty thousand. By this section, if that great State discriminates against her colored population as to the elective franchise, (except in cases of crime,) she loses to that extent her representative power in Congress. So also will it be with every other State." Cong. Globe, 39th Cong., 1st Sess., 2543 (1866).

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

"Manifestly no State should have its basis of national representation enlarged by reason of a portion of citizens within its borders to which the elective franchise is denied. If political power shall be lost because of such denial, not imposed because of  [*46]  participation in rebellion or other crime, it is to be hoped that political interests may work in the line of justice, and that the end will be the impartial enfranchisement of all citizens not disqualified by crime." Id., at 2511.

Representative Eckley of Ohio made this observation:

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

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

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

"It is very well known that the majority of the members of this body who favor a proposition of this character have been in very serious deliberation  [*47]  for several days in reference to these amendments,  [***567]  and have held some four or five caucuses on the subject." Id., at 2869.

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

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

Senator Henderson of Missouri, speaking in favor of the version of 2 which  [**2668]  had been reported by the Joint Committee in April, as opposed to the earlier provision of the proposal which had been defeated in the Senate, said this:

"The States under the former proposition [the corresponding provision of the original Amendment reported by the Committee of Fifteen, which passed the House of Representatives but was defeated in the Senate] might have excluded the Negroes under  [*48]  an educational test and yet retained their power in Congress. Under this they cannot. For all practical purposes, under the former proposition loss of representation followed the disfranchisement of the Negro only; under this it follows the disfranchisement of white and black, unless excluded on account of 'rebellion or other crime.'" Id., at 3033.

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

More impressive than the mere existence of the state constitutional provisions disenfranchising felons at the time of the adoption of the Fourteenth Amendment is the congressional  [***568]  treatment of States readmitted to the Union following the Civil War. For every State thus readmitted, affirmative congressional action in the form of an enabling act was taken, and as a part of the  [*49]  readmission process the State seeking readmission was required to submit for the approval of the Congress its proposed state constitution. In March 1867, before any State was readmitted, Congress passed "An act to provide for the more efficient Government of the Rebel States," the so-called Reconstruction Act. Act of Mar. 2, 1867, c. 153, 14 Stat. 428. Section 5 of the Reconstruction Act established conditions on which the former Confederate States would be readmitted to representation in Congress. It provided:

"That when the people of any one of said rebel States shall have formed a constitution of government in conformity with the Constitution of the United States in all respects, framed by a convention of delegates elected by the male citizens of said State, twenty-one years old and upward, of whatever race, color, or previous condition, who have been resident in said State for one year previous to the day of such election, except such as may be disfranchised for participation in the rebellion or for felony at common law, and when such constitution shall provide that the elective franchise shall be enjoyed by all such persons as have the qualifications herein stated for electors of delegates, and when such constitution shall be ratified by a majority of the persons voting on the question of ratification who are qualified as electors for delegates, and when such constitution shall have been submitted to Congress for examination and approval, and Congress shall have approved the same, and when said State, by a vote of its legislature elected under said constitution, shall have adopted the  [**2669]  amendment to the Constitution of the United States, proposed by the Thirty-ninth Congress, and known as article fourteen, and when said article shall have become a part of the Constitution  [*50]  of the United States, said State shall be declared entitled to representation in Congress, and senators and representatives shall be admitted therefrom on their taking the oath prescribed by law, and then and thereafter the preceding sections of this act shall be inoperative in said State . . . ." (Emphasis supplied.)

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

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

"The Senate, being unwilling to embark on the experiment of pure military rule, modified the House bill by adopting what is known as the Blaine or Sherman amendment. This amendment conceded military rule, as asked  [***569]  by the House, but put some sort of limit to its duration. It provided that when the rebel States should adopt universal suffrage, regardless of color or race, excluding none, white or black, except for treason or such crimes as were felony at the common law, the regulation of exclusion to be left to the States themselves, and should adopt the constitutional amendment proposed at the last session of Congress . . . and so soon as a sufficient number of said States should adopt it to make it a  [*51]  part of the Constitution of the United States, then military law should cease and the States should be admitted, provided that Congress even then should see fit to receive them." Id., at 1641.

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

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

"Be it enacted . . . That the State of Arkansas is entitled and admitted to representation in Congress as one of the States of the Union upon the following fundamental condition: That the constitution of Arkansas shall never be so amended or changed as to deprive any citizen or class of citizens of the United States of the right to vote who are entitled to vote by the constitution herein recognized, except as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted, under laws equally applicable to all the inhabitants of said State: Provided, That any alteration of said constitution prospective in its effect may be made in regard to the time and place of residence of voters."

 [*52]  The phrase "under laws equally applicable to all the inhabitants of said State" was introduced as an amendment to the House bill by Senator Drake of Missouri. Cong. Globe, 40th Cong., 2d Sess., 2600 (1868). Senator Drake's explanation of his reason for introducing his  [**2670]  amendment is illuminating. He expressed concern that without that restriction, Arkansas might misuse the exception for felons to disenfranchise Negroes:

"There is still another objection to the condition as expressed in the bill, and that is in the exception as to the punishment for crime. The bill authorizes men to be deprived of the right to vote 'as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted.' There is one fundamental defect in that, and that is that there is no requirement that the laws under which men shall be duly convicted of these crimes shall be equally applicable to all the inhabitants  [***570]  of the State. It is a very easy thing in a State to make one set of laws applicable to white men, and another set of laws applicable to colored men."

The same "fundamental condition" as was imposed by the act readmitting Arkansas was also, with only slight variations in language, imposed by the Act readmitting North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida, enacted three days later. That condition was again imposed by the Acts readmitting Virginia, Mississippi, Texas, and Georgia early in 1870.

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

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

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

Despite this settled historical and judicial understanding of the Fourteenth Amendment's effect on state laws disenfranchising convicted felons, respondents argue that our recent decisions invalidating other state-imposed restrictions on the franchise as violative of the Equal Protection Clause require us to  [**2671]  invalidate the disenfranchisement of  [***571]  felons as well. They rely on such cases as Dunn v. Blumstein, 405 U.S. 330 (1972), Bullock v. Carter, 405 U.S. 134 (1972), Kramer v. Union Free School District, 395 U.S. 621 (1969), and Cipriano v. City of Houma, 395 U.S. 701 (1969), to support the conclusions of the Supreme Court of California that a State must show a "compelling state interest" to justify exclusion of ex-felons from the franchise and that California has not done so here.

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

Pressed upon us by the respondents, and by amici curiae, are contentions that these notions are outmoded, and that the more modern view is that it is essential to the process of rehabilitating the ex-felon that he be returned to his role in society as a fully participating citizen when he has completed the serving of his term. We would by no means discount these arguments if addressed to the legislative forum which may properly weigh and balance them against those advanced in support of California's present constitutional provisions. But it is not for us to choose one set of values over the other. If respondents are correct, and the view which they advocate is indeed the more enlightened and sensible one, presumably the people of the State of California will ultimately come around to that view. And if they do not do so, their failure is some evidence, at least, of the fact that  [***572]  there are two sides to the argument.

 [***LEdHR8]  [8]We therefore hold that the Supreme Court of California erred in concluding that California may no longer, consistent with the Equal Protection Clause of the Fourteenth Amendment, exclude from the franchise convicted felons who have completed their sentences and paroles. The California court did not reach respondents' alternative contention that there was such a total lack of uniformity in county election officials' enforcement of the challenged state laws as to work a separate denial of equal protection, and we believe that it should have an opportunity to consider the claim before we address ourselves to it.  [**2672]  Accordingly, we reverse and remand for further proceedings not inconsistent with this opinion.

It is so ordered.


The Court today holds that a State may strip ex-felons who have fully paid their debt to society of their fundamental right to vote without running afoul of the Fourteenth Amendment. This result is, in my view, based on an unsound historical analysis which already has been rejected by this Court. In straining to reach that result, I believe that the Court has also disregarded important limitations on its jurisdiction. For these reasons, I respectfully dissent.


A brief retracing of the procedural history of this case is necessary to a full understanding of my views. Each of the respondents, the plaintiffs below, n1 had been convicted  [*57]  of a felony unrelated to voting and had fully served his term of incarceration and parole. Each applied to register to vote in his respective county -- Ramirez in San Luis Obispo County, Lee in Monterey County, and Gill in Stanislaus County. All three were refused registration because, under applicable provisions of the California Constitution, "no person convicted of any infamous crime . . . shall ever exercise the privileges of an elector."

The three named plaintiffs filed a petition for a writ of mandate in the California Supreme Court, invoking its original jurisdiction. Plaintiffs challenged the State's disenfranchisement of ex-felons as being violative of the Equal Protection Clause of the Fourteenth Amendment and sought issuance of a peremptory writ of mandate to compel their registration. The complaint labeled the suit as brought "individually and on behalf of all other persons who are ineligible to register to vote  [***573]  in California solely by reason of a conviction of a felony other than an election code felony" and who had fully served their terms of incarceration and parole. The complaint named, as defendants, the election officials who had refused to register them, "individually and as representatives of the class of all other County Clerks and Registrars of Voters who have the duty of determining for their respective counties whether any ex-felon will be denied the right to vote."

 [*58]  The three named election officials did not contest the action and represented to the state court that they would permit the named plaintiffs and all similarly situated ex-felons in their counties to register and to vote. The representative of the Secretary of State of California, also named as a defendant, has similarly agreed not to contest the suit. n3 At this point in the litigation all of the named plaintiffs had been voluntarily afforded the relief they were seeking by the election officials in their respective counties.

Subsequently, the petitioner in this Court, Viola Richardson, as County Clerk of Mendocino County, filed a motion to intervene in the proceedings before  [**2673]  the California Supreme Court. She indicated to the court that she was being sued in a separate action in a lower state court by an ex-felon seeking to register in her county and that the decision in this case would be dispositive of the legal issue in that controversy. The State Supreme Court ordered Richardson added as a named defendant in the instant action, but did not name the ex-felon suing her as a plaintiff or named class representative herein.

In its opinion, the California Supreme Court found the case not to be moot and took the opportunity to address the merits of the Fourteenth Amendment issue. It indicated that, in its view, the ex-felon disenfranchisement provision of the California Constitution and its implementing statutes violated the Equal Protection Clause. The state court did not, however, afford the plaintiffs the relief they sought. The court denied the peremptory writ of mandate.

Although the California Supreme Court did not issue a writ ordering Richardson to register either the ex-felon  [*59]  suing her or any other potential elector in her county, she sought review of the state court's decision by way of writ of certiorari in this Court. The election officials in the named plaintiffs' counties did not seek review and the Secretary of State filed a memorandum opposing review by this Court.


There are a number of reasons why I do not believe this case is properly before us at this time. First, I am persuaded that the judgment of the California Supreme Court rests on an adequate and independent state ground. . . .

Because I believe that the judgment of the California court was based on adequate and independent state grounds, I do not think we have jurisdiction to consider any other issues presented by this case.


Assuming, arguendo, that the California Supreme Court did grant a declaratory judgment, I still believe that we are without jurisdiction because no case or controversy is presented. . . .


Even assuming that this case is a class action, I still would not agree that it is properly before us. I do not believe that we can look beyond the named class members to find a case or controversy in the circumstances of this case. . . .

There are clearly ways in which a challenge to the California disenfranchisement provisions could reach this Court. The California Supreme Court has not issued a writ of mandate compelling the registration of any ex-felon. n13 If such a potential voter is, in fact,  [**2679]  refused registration, a controversy suitable for resolution by this Court will be presented. The suit brought against petitioner Richardson, by an ex-felon resident of her own county, raising the same issues as those presented by this case, is presently pending in a California intermediate appellate court. n14 In that case, petitioner Richardson did, in fact, deny the plaintiff registration because he was an ex-felon. Once that case completes its passage through the state courts, it could well serve as a vehicle for our review of the California disenfranchisement provisions.  [*71]  That is, of course, but one example of how the issue presented here could properly reach this Court. This case does not therefore benefit from the Southern Pacific doctrine's authority to look to unnamed class members to establish a case or controversy.

That the California Supreme Court appears to have found the plaintiffs' claims not to be moot does not detract from this conclusion since "[even] in cases arising in the state courts, the question of mootness is a federal one which a federal court must resolve before it assumes jurisdiction." North Carolina v. Rice, 404 U.S. 244, 246 (1971). Thus, unlike the Court, I am persuaded that we can look only to the named plaintiffs to satisfy the case-or-controversy requirement of Art. III.


The named plaintiffs here were registered only because the clerks in their counties had voluntarily abandoned an allegedly illegal practice of disenfranchising ex-felons, and we have said that "[mere] voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave '[the] defendant . . . free to return to his old ways.' . . . [But a] case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected  [***581]  to recur." United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203 (1968); accord, United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953). Accordingly, whether the named plaintiffs have a live controversy with the clerks in their own counties would depend on the likelihood of future disenfranchisement. n15 But we need not consider that question here because  [*72]  none of the election officials in the named plaintiffs' counties sought review in this Court and none is now before us.

The sole petitioner before this Court is Viola Richardson. None of the named plaintiffs are residents of her county. While those named plaintiffs may or may not have a live controversy with the clerks in their own counties, they surely do not have one with petitioner Richardson. While Richardson may well have a live controversy with ex-felons in her own county over the validity of the disenfranchisement laws, those ex-felons are not before this Court, and she has no dispute with the named plaintiffs. In sum, there is no controversy between the parties before this Court. Petitioner Richardson seeks to use the named plaintiffs' controversy with their own county clerks as a vehicle for this Court to issue an advisory opinion on the issue presented by the suit brought against her by an ex-felon in her own county. Such a decision would violate the "'oldest and most consistent thread in the federal law of justiciability . . . that the federal courts will not give advisory opinions.'" Flast v. Cohen, 392 U.S. 83, 96  [**2680]  (1968).


Since the Court nevertheless reaches the merits of the constitutionality of California's disenfranchisement of ex-felons, I find it necessary to register my dissent on the merits as well. The Court construes 2 of the Fourteenth Amendment as an express authorization for the States to disenfranchise former felons. Section 2 does except disenfranchisement for "participation in rebellion, or other crime" from the operation of its penalty provision. As the Court notes, however, there is little independent legislative history as to the crucial words "or  [*73]  other crime"; the proposed 2 went to a joint committee containing only the phrase "participation in rebellion" and emerged with "or other crime" inexplicably tacked on. n16 In its exhaustive review of the lengthy legislative history of the Fourteenth Amendment, the Court has come upon only one explanatory reference for the "other crimes" provision -- a reference which is unilluminating at best.

The historical purpose for 2 itself is, however, relatively clear and, in my view, dispositive of this case. The Republicans who controlled the 39th Congress were concerned that the additional congressional representation of the Southern States  [***582]  which would result from the abolition of slavery might weaken their own political dominance. n18 There were two alternatives available -- either to limit southern representation, which was unacceptable on a long-term basis, n19 or to insure that southern Negroes, sympathetic to the Republican cause, would be enfranchised; but an explicit grant of suffrage to Negroes was thought politically unpalatable at the time. n20 Section 2 of the Fourteenth Amendment was the resultant compromise.  [*74]  It put Southern States to a choice -- enfranchise Negro voters or lose congressional representation.

The political motivation behind 2 was a limited one. It had little to do with the purposes of the rest of the Fourteenth Amendment. As one noted commentator explained:

"'It became a part of the Fourteenth Amendment largely through the accident of political exigency rather than through the relation which it bore to the other sections of the Amendment.'" n22 "[It] seems quite impossible to conclude that there was a clear and deliberate understanding in the House that 2 was the sole source of national authority to protect voting rights, or that it expressly recognized the states' power to deny or abridge the right to vote."

It is clear that 2 was not intended and should not be construed to be a limitation on the other sections of the Fourteenth Amendment. Section 2 provides a special remedy -- reduced representation -- to cure a particular form of electoral abuse -- the disenfranchisement of Negroes. There is no indication that  [**2681]  the framers of the provisions intended that special penalty to be the exclusive remedy for all forms of electoral discrimination. This Court has repeatedly rejected that rationale. See Reynolds v. Sims, 377 U.S. 533 (1964); Carrington v. Rash, 380 U.S. 89 (1965).

Rather, a discrimination to which the penalty provision of 2 is inapplicable must still be judged against the Equal Protection Clause of 1 to determine whether judicial or congressional remedies should be invoked.  [*75]  That conclusion is compelled by this Court's holding in Oregon v. Mitchell, 400 U.S. 112 (1970). Although 2 excepts from its terms denial of the franchise not only to ex-felons but also to persons under 21 years of age, we held that the Congress, under 5, had the power to implement the Equal Protection Clause by lowering the voting age to 18 in federal elections. As MR. JUSTICE BRENNAN, joined by MR. JUSTICE WHITE, as well as myself, there observed, 2 was intended as no more "than a remedy supplementary, and in some conceivable circumstances  [***583]  indispensable, to other congressional and judicial remedies available under 1 and 5." 400 U.S., at 278.

The Court's references to congressional enactments contemporaneous to the adoption of the Fourteenth Amendment, such as the Reconstruction Act and the readmission statutes, are inapposite. They do not explain the purpose for the adoption of 2 of the Fourteenth Amendment. They merely indicate that disenfranchisement for participation in crime was not uncommon in the States at the time of the adoption of the Amendment. Hence, not surprisingly, that form of disenfranchisement was excepted from the application of the special penalty provision of 2. But because Congress chose to exempt one form of electoral discrimination from the reduction-of-representation remedy provided by 2 does not necessarily imply congressional approval of this disenfranchisement. n24 By providing a special remedy for disenfranchisement  [*76]  of a particular class of voters in 2, Congress did not approve all election discriminations to which the 2 remedy was inapplicable, and such discriminations thus are not forever immunized from evolving standards of equal protection scrutiny. Cf. Shapiro v. Thompson, 394 U.S. 618, 638-639 (1969). There is no basis for concluding that Congress intended by 2 to freeze the meaning of other clauses of the Fourteenth Amendment to the conception of voting rights prevalent at the time of the adoption of the Amendment. In fact, one form of disenfranchisement -- one-year durational residence requirements -- specifically authorized by the Reconstruction Act, one of the contemporaneous enactments upon which the Court relies to show the intendment of the framers of the Fourteenth Amendment, has already been declared unconstitutional by this Court in Dunn v. Blumstein, 405 U.S. 330 (1972).

Disenfranchisement for participation in crime, like durational residence requirements, was common at the time of the adoption of the Fourteenth Amendment. But "constitutional concepts of  [**2682]  equal protection are not immutably frozen like insects trapped in Devonian amber." Dillenburg v. Kramer, 469 F.2d 1222, 1226 (CA9 1972). We have repeatedly observed:

"[The] Equal Protection Clause is not shackled to the political theory of a particular era. In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality, any more than we have restricted due process to a fixed catalogue of what was at a given time deemed  [*77]  to be  [***584]  the limits of fundamental rights." Harper v. Virginia Board of Elections, 383 U.S. 663, 669 (1966).

Accordingly, neither the fact that several States had ex-felon disenfranchisement laws at the time of the adoption of the Fourteenth Amendment, nor that such disenfranchisement was specifically excepted from the special remedy of 2, can serve to insulate such disenfranchisement from equal protection scrutiny.


In my view, the disenfranchisement of ex-felons must be measured against the requirements of the Equal Protection Clause of 1 of the Fourteenth Amendment. That analysis properly begins with the observation that because the right to vote "is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government," Reynolds v. Sims, 377 U.S., at 555, voting is a "fundamental" right. As we observed in Dunn v. Blumstein, supra, at 336:

"There is no need to repeat now the labors undertaken in earlier cases to analyze [the] right to vote and to explain in detail the judicial role in reviewing state statutes that selectively distribute the franchise. In decision after decision, this Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction. See, e. g., Evans v. Cornman, 398 U.S. 419, 421-422, 426 (1970); Kramer v. Union Free School District, 395 U.S. 621, 626-628 (1969); Cipriano v. City of Houma, 395 U.S. 701, 706 (1969); Harper v. Virginia Board of Elections, 383 U.S. 663, 667 (1966); Carrington v. Rash, 380 U.S. 89, 93-94 (1965); Reynolds v. Sims, supra."
 [*78]  We concluded: "[If] a challenged statute grants the right to vote to some citizens and denies the franchise to others, 'the Court must determine whether the exclusions are necessary to promote a compelling state interest.'" 405 U.S., at 337. (Emphasis in original.)

To determine that the compelling-state-interest test applies to the challenged classification is, however, to settle only a threshold question. "Compelling state interest" is merely a shorthand description of the difficult process of balancing individual and state interests that the Court must embark upon when faced with a classification touching on fundamental rights. Our other equal protection cases give content to the nature of that balance. The State has the heavy burden of showing, first, that the challenged disenfranchisement is necessary to a legitimate and substantial state interest; second, that the classification is drawn with precision -- that it does not exclude too many people who should not and need not be excluded; and, third, that there are no other reasonable ways to achieve the State's goal with a lesser burden on the constitutionally protected interest. E. g., Dunn v. Blumstein, supra, at 343, 360; Kramer v. Union Free School District, 395 U.S. 621, 632  [***585]  (1969); see Rosario v.  [**2683]  Rockefeller, 410 U.S. 752, 770 (1973) (POWELL, J., dissenting); cf. Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974); NAACP v. Button, 371 U.S. 415, 438 (1963); Shelton v. Tucker, 364 U.S. 479, 488 (1960).

I think it clear that the State has not met its burden of justifying the blanket disenfranchisement of former felons presented by this case. There is certainly no basis for asserting that ex-felons have any less interest in the democratic process than any other citizen. Like everyone else, their daily lives are deeply affected and changed by the decisions of government. See Kramer, supra, at 627. As the Secretary of State of California observed in his  [*79]  memorandum to the Court in support of respondents in this case:

"It is doubtful . . . whether the state can demonstrate either a compelling or rational policy interest in denying former felons the right to vote. The individuals involved in the present case are persons who have fully paid their debt to society. They are as much affected by the actions of government as any other citizens, and have as much of a right to participate in governmental decision-making. Furthermore, the denial of the right to vote to such persons is a hindrance to the efforts of society to rehabilitate former felons and convert them into law-abiding and productive citizens." n25

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n25 Memorandum of the Secretary of State of California in Opposition to Certiorari, in Class of County Clerks and Registrars of Voters of California v. Ramirez, No. 73-324.

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It is argued that disenfranchisement is necessary to prevent vote frauds. Although the State has a legitimate and, in fact, compelling interest in preventing election fraud, the challenged provision is not sustainable on that ground. First, the disenfranchisement provisions are patently both overinclusive and underinclusive. The provision is not limited to those who have demonstrated a marked propensity for abusing the ballot by violating election laws. Rather, it encompasses all former felons and there has been no showing that ex-felons generally are any more likely to abuse the ballot than the remainder of the population. See Dillenburg v. Kramer, 469 F.2d, at 1225. In contrast, many of those convicted of violating election laws are treated as misdemeanants and are not barred from voting at all. It seems clear that the classification here is not tailored to achieve its articulated goal, since it crudely excludes large numbers of otherwise qualified voters. See Kramer v. Union Free  [*80]  School District, supra, at 632; Cipriano v. City of Houma, 395 U.S. 701, 706 (1969).

Moreover, there are means available for the State to prevent voting fraud which are far less burdensome on the constitutionally protected right to vote. As we said in Dunn, supra, at 353, the State "has at its disposal a variety of criminal laws that are more than adequate to detect and deter whatever fraud may be feared." Cf. Harman v. Forssenius, 380 U.S. 528, 543 (1965); Schneider v. State, 308 U.S. 147, 164 (1939). The California court's catalogue of that State's penal sanctions for election fraud  [***586]  surely demonstrates that there are adequate alternatives to disenfranchisement.

"Today . . . the Elections Code punishes at least 76 different acts as felonies, in 33 separate sections; at least 60 additional acts are punished as misdemeanors, in 40 separate sections; and 14 more acts are declared to be felony-misdemeanors. Among this plethora of offenses we take particular note, in the present connection, of the felony sanctions against fraudulent registrations ( 220), buying and selling of votes ( 12000-12008),  [**2684]  intimidating voters by threat or bribery ( 29130-29135), voting twice, or fraudulently voting without being entitled to do so, or impersonating another voter ( 14403, 29430-29431), fraud or forgery in casting absentee ballots ( 14690-14692), tampering with voting machines ( 15280) or ballot boxes ( 17090-17092), forging or altering election returns ( 29100-29103), and so interfering 'with the officers holding an election or conducting a canvass, or with the voters lawfully exercising their rights of voting at an election, as to prevent the election or canvass from being fairly held and lawfully conducted' ( 17093)." 9 Cal. 3d, at  [*81]  215-216, 507 P. 2d, at 1355-1356 (1973) (footnotes omitted).
Given the panoply of criminal offenses available to deter and to punish electoral misconduct, as well as the statutory reforms and technological changes which have transformed the electoral process in the last century, election fraud may no longer be a serious danger. n26

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n26 Ramirez v. Brown, 9 Cal. 3d 199, 215-216, 507 P. 2d 1345, 1355-1356 (1973).

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Another asserted purpose is to keep former felons from voting because their likely voting pattern might be subversive of the interests of an orderly society. See Green v. Board of Elections, 380 F.2d 445, 451 (CA2 1967). Support for the argument that electors can be kept from the ballot box for fear they might vote to repeal or emasculate provisions of the criminal code, is drawn primarily from this Court's decisions in Murphy v. Ramsey, 114 U.S. 15 (1885), and Davis v. Beason, 133 U.S. 333 (1890). In Murphy, the Court upheld the disenfranchisement of anyone who had ever entered into a bigamous or polygamous marriage and in Davis, the Court sanctioned, as a condition to the exercise of franchise, the requirement of an oath that the elector did not "teach, advise, counsel or encourage any person to commit the crime of bigamy or polygamy." The Court's intent was clear -- "to withdraw all political influence from those who are practically hostile to" the goals of certain criminal laws. Murphy, supra, at 45; Davis, supra, at 348.

To the extent Murphy and Davis approve the doctrine that citizens can be barred from the ballot box because they would vote to change the existing criminal law, those decisions are surely of minimal continuing precedential value. We have since explicitly held that such "differences of opinion cannot justify excluding [any] group  [*82]  from . . . 'the franchise.'" . . .

Although, in the last century, this Court may have justified the exclusion of voters from the electoral process for fear that they would vote to change laws considered important by a temporal majority, I have little doubt that we would not countenance such a purpose today. The process of democracy is one of change. Our laws are not frozen into immutable form, they are constantly in the process of revision in response to the needs of a changing society. The public interest, as conceived by a majority  [**2685]  of the voting public, is constantly undergoing reexamination. This Court's holding in Davis, supra, and Murphy, supra, that a State may disenfranchise a class of voters to "withdraw all political influence from those who are practically hostile" to the existing order, strikes at the very heart of the democratic process. A temporal majority could use such a power to preserve inviolate its view of the social order simply by disenfranchising those with different views. Voters who opposed the repeal of prohibition could have disenfranchised those who advocated repeal "to prevent persons from being enabled by their votes to defeat the criminal laws of the country." Davis, supra, at 348. Today, presumably those who support the legalization of marihuana could be barred  [*83]  from the ballot box for much the same reason. The ballot is the democratic system's coin of the realm. To condition its exercise on support of the established order is to debase that currency beyond recognition. Rather than resurrect Davis and Murphy, I would expressly disavow any continued adherence to the dangerous notions therein expressed.

The public purposes asserted to be served by disenfranchisement have been found wanting in many quarters. When this suit was filed, 23 States allowed ex-felons full access to the ballot. Since that time, four more States have joined their ranks. n28 Shortly after lower federal  [*84]   [***588]  courts sustained New York's and  [**2686]  Florida's disenfranchisement provisions, the legislatures repealed those laws. Congress has recently provided for the restoration of felons' voting rights at the end of sentence or parole in the District of Columbia. D. C. Code 1-1102 (7) (1973). The National Conference on Uniform State  [*85]  Laws, n29 the American Law Institute, n30 the National Probation and Parole Association, n31 the National Advisory Commission on Criminal Justice Standards and Goals, n32 the President's Commission on Law Enforcement and the Administration of Justice, n33 the California League of Women Voters, n34  [***589]  the National Democratic Party, n35 and the Secretary of State of California n36 have all strongly endorsed full suffrage rights for former felons.

The disenfranchisement of ex-felons had "its origin in the fogs and fictions of feudal jurisprudence and  [*86]  doubtless has been brought forward into modern statutes without fully realizing either the effect of its literal significance or the extent of its infringement upon the spirit of our system of government." Byers v. Sun Savings Bank, 41 Okla. 728, 731, 139 P. 948, 949 (1914). I think it clear that measured against the standards of this Court's modern equal protection jurisprudence, the blanket disenfranchisement of ex-felons cannot stand.

I respectfully dissent.

MR. JUSTICE DOUGLAS, agreeing with Part I-A of this opinion, dissents from a reversal of the judgment below as he cannot say that it does not rest on an independent state ground.