The Yale Law Journal


Felon Re-Enfranchisement and the Problem of “Lost” Rights

14 Jan 2022

abstract. By conditioning the restoration of political rights on financial repayment, states have prevented hundreds of thousands of citizens with felony convictions from participating politically—profoundly altering the shape of the American electorate. Courts have upheld the practice by treating restoration as an exercise of legislative grace to nonmembers of the political community. Critics argue that the practice conditions political participation on wealth status and is therefore subject to heightened review.
 This Essay traces the disagreement back to an overlooked first-order question: how should the juridical status of a disenfranchised citizen’s “lost” rights be understood? The conventional position assumes that disenfranchisement casts a citizen outside the democratic community, thereby voiding all constitutional claims to political participation. But for doctrinal and democratic-theoretical reasons, disenfranchisement is better understood as the subordination—not the revocation—of political rights and interests, just as punishment suppresses but does not eliminate an individual’s constitutional interests in physical liberty or other civil liberties. From this it follows that disenfranchised citizens retain a stake in political inclusion that cannot be conditioned on wealth status.
 Redescribing the disenfranchisement-to-restoration process in this way aligns with the Supreme Court’s reading of Section 2 of the Fourteenth Amendment in Richardson v. Ramirez and sharpens the constitutional symmetry between financially conditioned restoration and the paradigmatic poll tax. By framing re-enfranchisement as a constitutional default and drawing attention to disenfranchised citizens’ enduring claim to political presence, this account may also be of use in popular restoration efforts outside the courts.


American criminal punishment has long involved the denial of participation in political life. A convicted citizen can “lose” their right to vote, hold political office, or serve on a jury for a specified sentencing period—or permanently. Just as the Supreme Court has recognized few substantive constitutional constraints on a state legislature’s choice to impose life sentences of imprisonment or otherwise extensive prison stays, so too has the Court interpreted Section 2 of the Fourteenth Amendment in Richardson v. Ramirez to authorize the permanent disenfranchisement of citizens convicted of felonies.1

In recent years, state electorates have mobilized for restoration options to reverse the longstanding exclusion of minority communities from political participation.2 But legislatures, courts, and agencies have drastically limited this expansion by fashioning restoration laws that condition eligibility on the full repayment of legal financial obligations. While estimates vary, at least eleven states statutorily name unpaid obligations as a barrier to voting-rights restoration, though recent research suggests that nearly every state incorporates financial-repayment conditions into its restoration administrative procedures.3 Of recent notoriety, Florida’s move to read a financial-repayment condition into a state amendment disqualified nearly 900,000 individuals with previous felony convictions from voting in the November 2020 election4—a policy upheld as constitutional by the Eleventh Circuit sitting en banc in September 2020.5 Perhaps in response to electoral shifts and the green light from lower federal courts upholding similar policies, state lawmakers across the country continue to embed fine-, court-fee-, and restitution-repayment requirements in restoration proposals.6 An Iowa legislator sponsoring one such proposal even declared that “this is no poll tax” because “federal courts in other parts of the country have upheld requirements requiring restitution payments.”7

This Essay describes how disagreements over the constitutionality of these restoration schemes flow from a submerged, though outcome-controlling, question of constitutional coverage: does disenfranchisement void a citizen’s political rights and interests, such that political-rights claims are unavailable when objecting to restoration schemes? These would include Harper v. Virginia State Board of Elections-styled poll-tax claims,8 Twenty-Fourth Amendment poll-tax claims,9 and access-to-political-process claims shaped around Bullock v. Carter and Lubin v. Panish.10

The conventional understanding of a disenfranchised citizen’s “lost” rights—which I will call the expulsion account—answers this question in the affirmative. If disenfranchisement is understood to expel a person from the political community, then that person vacates all cognizable rights and interests predicated upon political standing. In turn, the imposition of wealth criteria would not—indeed, could not—deprive disenfranchised citizens of any rights or interests. Of course, legislative decisions to (re)open the political community to non-rights holders must be nonarbitrary and avoid presumptively illegitimate classifications of race or gender. But so long as states avoid these general constraints, they can restore rights along criteria like the satisfying of fees that would otherwise be presumptively unconstitutional if applied to political-rights holders inside the political community.

However, this account breaks down if disenfranchisement falls short of outright revocation—an alternative view I will call subordination. Rather than conceptualizing disenfranchisement as the withdrawal of a political right and its associated interests, we should instead understand it as the legitimate state suppression of a right’s exercise in a manner that preserves the underlying claim to the right. In other words, a disenfranchised citizen’s political rights and interests are subordinated to the state’s interest in punishment, but are not dislodged in some deeper metaphysical sense. At the level of democratic theory, this understanding is consistent with treating disenfranchised citizens as continued, albeit diminished, members of the political community. If a residuum of political standing is left intact, such that disenfranchised citizens occupy an intermediate position between noncitizens and enfranchised citizens, then disenfranchisement does not remove a citizen from the political order and restoration is not analytically—nor, this Essay argues, constitutionally—analogous to gaining political entry for the first time.

How we represent the relationship between a disenfranchised citizen and the body politic therefore determines the availability of political-rights claims and whether financial conditions should be understood as poll taxes. But the expulsion assumption that disenfranchisement severs a citizen’s political connection, such that political-rights protections have nothing to say about restoration, has been promoted by every court to review these schemes.11 Scholars have also tended to accept it, reasoning that a wealth-based punishment theory should be the focus of litigation efforts because disenfranchised citizens lack political rights.12 But there are strong reasons to doubt the assumption, as the following consideration of the issue from general principles should prompt.

Simply put, what is the condition of political membership that disenfranchised citizens—by virtue of having been disenfranchised—supposedly fail to meet? Some emocratic theorists have sought to overcome the legitimacy problems inherent to political boundary-setting13 by embracing all individuals with a functional stake in political decision-making.14 This view is reflected in past moments of American history where noncitizen residents have voted in local elections.15 Others define membership as de jure citizenship status out of concern that the functional approach lacks an internal limit and would ever expand the demos.16 Without additional specification, both views would count disenfranchised citizens as continued members. One might attempt to draw a more restrictive line by requiring actual political participation, though this quickly unravels when one observes, in light of sobering rates of voter turnout and registration,17 that the “use it or lose it” view would exclude broad swaths of the electorate. Perhaps membership should be defined by stacking de jure citizenship with some notion of future legal eligibility, so as to sweep in eligible-but-nonregistered adult citizens as well as adolescent citizens (after all, I doubt we are prepared to say that adolescents are outside the coverage of political-rights protections, in a manner permitting states to selectively enfranchise seventeen-year-olds along wealth criteria). But if prospective eligibility ties a citizen into the political community, doesn’t a disenfranchised citizen in a state like Florida, where the repayment of $100 might alone be the barrier to re-enfranchisement, exhibit such a potential, and might they therefore have a claim to the protections of membership? Without additional justification, the move to relegate disenfranchised citizens to the outsider position quickly proves conclusory.

My argument in support of the subordination account proceeds in three stages. Part I outlines the two competing theories of “lost” political rights. Part II observes that both theories comport with the Richardson Court’s interpretation of Section 2 of the Fourteenth Amendment. It then criticizes the expulsion view from two angles. First, expulsion diverges from the typical form of the interaction between individual rights and punishment. Second, understanding convicted citizens to exist beyond the political community undermines the democratic justification for punishment. Part III then assesses the constitutionality of financially conditioned restoration from the perspective of the subordination account. Because restoration along wealth lines makes poorer disenfranchised citizens worse off for dignitary and instrumental reasons, it imposes constitutional harm cognizable under Harper and other wealth-antidiscrimination precedents. Ultimately, a deeper recognition of disenfranchised citizens’ continued place in the political community can bolster future litigation challenges and add a constitutional cast to popular calls for legislative reform.

I. two accounts of disenfranchisement

This Part describes the expulsion and subordination views and their implied models of democratic citizenship. Because both conceptual maps fit the surface phenomenon of lost access to the ballot or jury box, the distinction may seem strangely metaphorical. Crucially, however, the level of constitutional scrutiny applied to restoration schemes turns on whether restored rights are framed as new statutory entitlements to an excludable outsider, or instead reflect the lifting of deprivation and reversion to a member’s constitutional baseline of equal standing.

A. Beyond the Political Boundary: Disenfranchisement as Expulsion

The expulsion view adopted by lower courts assumes that a citizen’s place in the political compact becomes obsolete at the moment of conviction. Rights are “lost” or, as Judge Friendly once put it, “abandoned.”18 Implicit here is the notion that a felony conviction expels the citizen beyond the bounds of the democratic body, such that from the moment of conviction onward, the citizen assumes the constitutional position of a noncitizen with respect to political participation. This view rests upon a classical Lockean social-contract model, on which law-breaking short-circuits mutual consent between citizens—the essential condition of state organization—and therefore withdraws the law-breaker from the compact.19 Since at least the 1960s, lower courts have rejected constitutional challenges to disenfranchisement statutes on the basis that a convicted person’s “interest in retaining his right to vote is constitutionally distinguishable from the ‘right to vote’ claims of individuals who are not felons,”20 or that the right “is not ‘fundamental.’”21

In more recent years, lower courts have rejected poll-tax and political-process challenges to financially conditioned restoration schemes by extending the loaded property metaphors of “loss” and “abandonment.” This move positions disenfranchised citizens as excludable outsiders seeking political entry—a starting point that makes political-rights claims nonstarters. As described by the Sixth Circuit, “[h]aving lost their voting rights, Plaintiffs lack any fundamental interest to assert.”22 Every court to review challenges to financially conditioned restoration has embraced the same logic.23 “Losing” is meant literally and conceptualized as a discrete event in time. From this vantage point, restoration appears only to provide a “mere statutory benefit” to those who qualify,24 much like the grant of a new license, and simply withholds that benefit from those who do not qualifyan omission lacking constitutional dimension given the assumed absence of political rights.

In other words, disenfranchised citizens unable to pay back their financial obligations remain in the same ex anteconstitutional position, made no worse off by the extension of the benefit to others, and selective restoration takes on a “Pareto efficiency”-like quality.25 It thus becomes a question of political entry subject to few constitutional constraints,26 akin to Congress’s legislative discretion to favor certain classes of noncitizens—including economically favored classes—over others in the naturalization process.27

B. Inside the Political Boundary: Disenfranchisement as Subordination

Objecting to financially conditioned restoration schemes, dissenting judges have started from the opposite premise: that political rights are inalienable and immutable. For instance, Chief Justice Alexander of the Washington Supreme Court remarked that “felons can be deprived of the right to vote, notwithstanding its fundamental nature,” but that “voting remains a fundamental right.”28 Judge Jordan of the Eleventh Circuit in Jones v. Governor of Florida similarly described how “the state’s ability to deprivesomeone of a profoundly important interest does not change the nature of the right”29—a position echoed by dissenters in other cases30 and by Justices Sotomayor, Ginsburg, and Kagan in their dissent from the denial of an application to vacate the stay in Jones.31 These arguments run in the right direction, though they fall short of offering a theory of how a right can be both deprived under Section 2 and at once unchanged. This view also sits at an impasse opposite the expulsion account, which begins from the premise that disenfranchisement does change a political right with respect to a particular individual by eliminating it from the field of analysis.

Both majority and dissenting accounts operate through binary absolutes: either a disenfranchised right is erased wholesale by virtue of criminal wrongdoing or it remains unchanged. But this flat, undifferentiated picture—in which a disenfranchised citizen is either on equal footing with enfranchised citizens or else outside the political community—overlooks the range of gradations across which citizenship and subordination exist in both law and social life. As a descriptive matter, American law sometimes disaggregates the rights of citizenship and confers them in partial arrangements. For instance, “noncitizen national” legal status, as provided for in the Immigration and Nationality Act, affords passport privileges but withholds the right to vote in federal elections and the right to serve on a jury.32 Compare this to the form of citizenship in U.S. territories, where citizens—including previous state residents who have since moved to territories—can serve on juries but cannot vote for the President or Vice President.33 And adolescent citizens, of course, lack the rights of political exercise but retain other citizenship protections. This is not to say these liminal forms are all worthy of celebration. A double-edged sword, our model allows for the incremental extension of new rights to vulnerable classes, but can also rationalize contradictory and inequality-laden partial arrangements that might otherwise tend toward full enfranchisement over time if citizenship were an all-or-nothing affair. Bracketing these considerations, the point here is that the gradated citizenship form finds many historical and contemporary precedents in American law.

Working with such a model instead of an all-or-nothing view of democratic citizenship, the subordination account holds that disenfranchisement shifts a citizen’s political standing into a lower tier below that of enfranchised citizens, but that this falls short of all-out expulsion from political life. This view can be translated into the parlance of constitutional rights in at least two ways. First, we might say that the state has affirmative authority to override a fundamental political right after conviction, thereby preventing the right’s exercise, but that the fundamental right continues to exist (albeit in a dormant and unexpressed state). Second, and paralleling the above explanation of a convicted citizen’s diminution in political standing, we might say that disenfranchisement strips away the fundamental status of a right, but that this leaves important participatory interests in place rather than creating a constitutional vacuum. In the wealth-discrimination context, the Court has at times recognized “fundamental interests” as an intermediate category between substantive fundamental rights and conventional interests.34 We might thus represent a disenfranchised citizen’s pared-down claim to political exercise as akin to a fundamental interest, which does not independently enjoy constitutional protection like a fundamental right, but may still warrant closer scrutiny when a wealth classification or some other form of discriminatory treatment is involved.35 The argument in Parts II and III proceeds through the first description of the subordination account, though the second description—in combination with a more extensive analysis of the wealth-discrimination line of equal protection than will be offered here—can lead to the same conclusion.

II. favoring subordination

This Part advances the subordination account of the disenfranchisement-to-restoration process through a series of doctrinal and normative arguments. Section II.A first describes why Richardson is compatible with both subordination and expulsion. In Richardson, the Court said only that permanent disenfranchisement does not require a compelling state interest, implying that the practice is subject to rational-basis review. But given the penal setting in question, this lesser standard remains consistent with the continued presence of the right. Surveying other rights domains, Section II.B argues that the Court’s rights jurisprudence reflects a subordination structure. Fundamental rights and interests are often overridden by sweeping penological interests but are never formally withdrawn. For instance, a convicted individual’s physical liberty, speech, and privacy interests are deprived in the course of incarceration subject to a watered-down standard of review, but remain cognizable sources of constitutional protection in certain circumstances. Political rights should be no different. Finally, Section II.C argues that the move to equate conviction with political expulsion is incompatible with the democratic foundations of punishment.

A. Squaring the Subordination Account with Richardson

In Richardson, the Court reviewed a California constitutional provision and related statutes imposing permanent disenfranchisement for individuals convicted of “infamous crime[s].”36 The litigants seeking re-enfranchisement had completed their prison sentences but were denied voting registration by the county clerk on the basis of their convictions. Upholding the constitutionality of the California scheme, the Court rested its analysis on Section 2 of the Fourteenth Amendment, which stipulates that a state’s share of seats in Congress should be reduced by the degree the state violates voting rights, except for instances where the state denies voting rights on account of “rebellion, or other crime.”37 The Court interpreted the “other crime” exception as an “affirmative sanction” for states to “indefinitely disenfranchise[]”
felons.38 Given California’s authority sourced in Section 2, the Court rejected the view that “a compelling state interest must be found to justify exclusion” from the franchise.39

The Court’s exegesis of Section 2’s legislative history, as well as its textual and structural reading of the “rebellion, or other crime” exception, is questionable on multiple fronts—weaknesses that Justice Marshall’s dissent chronicles in detail.40 More generally, the use of Section 2 to justify the scale and racialized form of modern felon disenfranchisement is shot through with irony, given the racial-equality commitments animating the Fourteenth Amendment.41 There may thus be good reason to reconsider the constitutionality of permanent disenfranchisement, however unlikely such a move from the Court may be.42 But this Essay does not seek to relitigate Richardson, which clearly established that states can permanently prevent citizens from voting—and, to the extent political rights are presumed to travel together—from serving on a jury or running for office. Just like the expulsion view, the subordination account comports with this authority.

That a state can impose a lifelong deprivation of a political right tells us little about how we should conceptualize the transformation of the underlying right or its holder’s juridical status. The Richardson Court did not, for instance, draw upon Judge Friendly’s description of “abandoned” rights, or otherwise suggest that it was the absence of a constitutional interest on the side of the disenfranchised citizen that rendered a compelling interest unnecessary. To the contrary, Richardson’s description of the Section 2 “affirmative sanction” is best read as having obviated the state’s need for articulating a compelling interest in any particular case of disenfranchisement (i.e.,Section 2 functions like a universal trump for the state to override a political right in the penal context). But this only speaks to the state’s burden of justification, not to the right’s existence as such, and is thus compatible with the subordination view that the right continues to inhere. For additional reasons described in Section II.B, we should reject the negative inference that the lack of a compelling state interest necessarily indicates the absence of a right.

B. Subordination as a Transsubstantive Principle

Subordination more closely reflects rights jurisprudence in neighboring substantive domains. For instance, even though states are constitutionally permitted to impose life imprisonment, an individual’s interest in physical liberty still remains constitutionally relevant throughout their incarceration. If it were voided at the moment of conviction and thereafter removed from the constitutional field, as the expulsion model assumes with respect to participatory interests, the Court’s Williams-Tate-Bearden line of wealth-based incarceration cases would be difficult to rationalize.43In Williams v. Illinois, the Court held that incarcerating someone beyond the statutory maximum because they have not paid fines or court fees violates the Equal Protection Clause.44 A year later in Tate v. Short, the Court held that states are prohibited from incarcerating a person under a fine-only statute on the basis of that person being unable to pay the prescribed fine.45 And twelve years after that, the Court integrated these precedents in Bearden v. Georgia, holding that a probationer “who has made sufficient bona fide efforts to pay” cannot be reincarcerated on the basis of not having met a financial term of probation.46

Though the Court has only addressed wealth-based incarceration on these three occasions, the line suggests the general principle that inability to pay cannot serve as the sole cause of an individual’s incarceration absent a compelling state interest. One might still strain to distinguish situations of entering or reentering incarceration (i.e., having probation revoked solely because of an unpaid obligation) from situations of continued incarceration (i.e.,having probation or commutation denied solely because of an unpaid obligation). The latter litigation posture would seem to arise only rarely, though lower courts applying Bearden in the context of pretrial bail—which resembles such a posture when bail is imposed as a condition of release—have recognized the principle’s applicability.47 In any case, the thrust of the Bearden principle stems from the fundamental value of physical liberty full stop, not some brick-and-mortar-bound theory that the freedom runs only up to the prison gate but that, once someone is inside, Bearden loses all relevance. And just as prisoners retain a cognizable interest in physical liberty throughout their incarceration, disenfranchised citizens retain an interest in political exercise notwithstanding the lawful suspension of participation upon conviction.

Relatedly, the Richardson Court’s application of rational-basis review to the California scheme should not give way to the inference that disenfranchised citizens’ political rights and interests are obsolete on the logic of expulsion. In the incarceration context, the state need not present a compelling interest to deprive individuals in the state’s custody of their civil liberties even though, as the Court described in Turner v. Safley, “prison walls do not form a barrier separating inmates from the protections of the Constitution.”48 Under the test set out in Turner, prison regulations need only bear a rational relation to a legitimate state interest to override the First and Fourth Amendment speech and privacy rights implicated in incarceration.49 But these rights, rather than being vitiated entirely, still constrain the state in recognized ways even though their applications are narrowed.50 Indeed, the Turner reasonableness burden of justification for overriding a right results from the exigencies of prison security and courts’ institutional limitations in reviewing penal standards, not the belief that a punished person’s rights have been relegated out of view.51 The subordination reading of Richardson therefore approximates the structure of civil liberties under Turner.

In response to the Bearden and Turner analogies, one might suggest a distinction along which civil liberties are suppressible but unyielding, while political rights are open to being fully withdrawn.52 This difference may be explained by the fact that civil liberties are universal, while political rights are only owed to those constituting the political community.53 But I see no obvious reason why the more limited size of the rights-holding population, without some additional point of contrast, makes political rights uniquely voidable. In response, one might attempt to identify civil liberties with a primordial or prepolitical quality in the vein of classical liberal theories of natural rights, as if civil liberties flow from personhood while political rights originate in and remain conditioned on state recognition. Without straying into the questionable metaphysical foundations of this distinction between “Man” and “Citizen,”54 it is worth observing that the Court has long appreciated the interplay between civil liberties and political rights. The Court elided the notion of a prepolitical realm as early as Yick Wo v. Hopkins by reasoning that voting was “not regarded strictly as a natural right” but was still “preservative of all rights.”55 It has subsequently linked them in other ways, recognizing that the right to vote mediates the speech and associational rights at the heart of the First Amendment,56 which are preserved through conviction, just as the right to serve on a jury is continuous with the Sixth Amendment’s underlying liberty interests in procedural fairness.57 This is all to say that I see no reason why physical liberty, speech, or privacy rights are somehow deeper than, and should therefore survive conviction in a categorically different manner from, the right to vote or serve on a jury.

Finally, the Court’s prohibition on the revocation of citizenship undercuts the contemporary relevance of this civil/political distinction.58 In Trop v. Dulles, the Court characterized revocation as “the total destruction of the individual’s status in organized society” that “destroys for the individual the political existence that was centuries in the development.”59 Chief Justice Warren’s majority opinion recognized the foundational status of political recognition and belonging, even invoking Arendt’s phrase “the right to have rights” to describe how a stateless person “is at the sufferance of the community in which he happens to find himself.”60 Of course, political existence regards more than the ability to exercise the franchise; at bottom, it is the security of the passport, with or without political exercise, that protects against the grave dangers of statelessness. But the Court’s deeper insight regarding the dependency of civil and social guarantees on political recognition hollows out any belief in the conceptual or normative priority of civil liberties—a belief I take to be animating any civil/political distinction along which political rights are characterized as thinner and more yielding.

C. Salvaging the Social-Contractual Justification for Punishment

In light of Trop, previous commentators have recognized the obvious paradox of permitting disenfranchisement but prohibiting the punishment of citizenship revocation, to the extent it is the exercise of political rights that gives content to citizenship.61 Though possible physical exclusion from the border resulting from the loss of a passport implicates different, and practically more severe, risks than the loss of the franchise alone, revocation and the expulsion approach to disenfranchisement share a logic: both negate a person’s political existence by severing their connection to the political community. But the subordination account holds that the disenfranchised citizen formally remains a member of the political community, even though his or her political standing has been reduced through punishment. This alternative creates analyticalseparation between revocation and disenfranchisement, and therefore brings some resolution—albeit perhaps an unsatisfyingly formalistic one—to the fundamental tension between Trop and Richardson.

Put differently, recognizing a disenfranchised citizen’s residual connection to the demos is necessary for salvaging the democratic legitimacy of punishment. A democratic community is justified in punishing one of its members precisely because that member takes part in the constitution of its rules and social institutions, such that the individual commits to abiding by the law and authorizes their own punishment upon transgression. But this contractarian justification can only support a punishment, whether it be incarceration or some other criminal penalty, to the extent the punished citizen remains inside the political order’s nexus of mutual consent.62 In turn, if a citizen’s democratic claim is nullified at the moment of conviction, the subsequent punishment cannot be normatively sustained as it ensues by reference to democratic principles.63 One may still eschew the social-contractual bases of the criminal law by relying upon alternative theories of punishment like deterrence or retributivism (i.e., that punishment exists to incentivize compliance with the law or to reciprocate suffering for moral, not democratic, reasons). The relative merits of these theories are beyond the scope of this Essay, though it is worth noting that deterrence and retributivist accounts, without social-contractual constraints, have difficulty explaining our criminal law as it is, or barring forms of punishment we intuitively reject.64 At minimum, we should recognize the theoretical tradeoffs at stake in the expulsion approach to disenfranchisement.

* *  *

These arguments provide various angles into the problems with the expulsion account, and some may be more compelling than others. The point is that courts and commentators should question the expulsion view and its host of demanding assumptions. Disenfranchised citizens retain constitutionally regarded claims to political participation, justifiably suppressed on the basis of the state’s “affirmative sanction” but nonetheless available to object to the introduction of arbitrary wealth criteria.

III. the symmetry to poll taxes

Once the expulsion assumption is rejected, the ways in which financially conditioned restoration violates Harper and other political-equality protections become clear. Section III.A first outlines the Court’s general wealth-equality principles before evaluating the elements of a Harper violation. It then raises the possibility that Harper prohibits the conditioning of an individual’s political participation on financial payment regardless of that individual’s political membership or lack thereof, such that acceptance of the expulsion view should still lead to a constitutional violation. Bracketing this reading, Section III.B offers two ways to characterize the constitutional deprivation from the standpoint of the subordination account. A disenfranchised citizen unable to repay their obligations experiences a dignitary violation when their already diminished political status is further subordinated. Relatedly, excluded disenfranchised citizens are made instrumentally worse off in light of the relational, group-based nature of political exercise. Section III.C then uses this explanation to reinforce the theory that financially conditioned restoration amounts to unconstitutional punishment.

A. Clarifying Wealth-Equality Principles

Beginning with Griffin v. Illinois and working its way through Harper and into other domains, the Warren Court brought concerns over class discrimination into the fold of equal protection.65 In Griffin itself, the Court held that for-purchase trial transcripts needed to be provided for free to indigent defendants because they were critical to the exercise of appellate review—even though a state “is not required by the Federal Constitution to provide appellate courts or a right to appellate review.”66 One plausible reading of Griffin conceives of appellate review and, more narrowly, the access to a trial transcript, as statutory benefits, reflecting a rule that the government cannot make access to positive benefits available to wealthier individuals without also providing access to poorer individuals.

Such a rule, which seems to approximate a disparate-effects theory of wealth discrimination,67 has since been rejected by the Court. In Boddie v. Connecticut, the Court used a due-process theory to strike down the imposition of filing fees upon an indigent couple in a divorce proceeding, reading Griffin not as a disparate-effects case but a due-process one: even though access to an appeal is not constitutionally required, the creation of the appeal option reduced the quality of process at the trial stage, such that the absence of an appeal would render the overall process inadequate for indigent defendants.68 Over the course of related cases, broadly defined as the fundamental-rights strand of equal protection, the Court struck down wealth-inflected schemes, including those conditioning voting,69 marriage,70 physical liberty from
incarceration,71 and the appeal of the termination of parental rights72 on the ability to make a financial payment. Of course, contrary to race or gender classifications, wealth-based distinctions do not alone generate strict or heightened scrutiny; instead, the Rodriguez rational-basis rule permits states to exchange benefits implicating non-fundamental interests—like relative improvement in schooling quality, as the Court took to be at issue in Rodriguez—for financial payment.73 What can be gleaned across these cases is thus a two-dimensional, hybrid principle: states cannot deprive individuals of rights and interests recognized as fundamental on the basis of inability to pay, but can differentially provide benefits when less-significant interests are at stake.74

In Harper specifically, the Court held that access to the franchise cannot be conditioned on financial payment, striking down Virginia’s state poll tax under the Equal Protection Clause and barring the states from “mak[ing] the affluence of the voter or payment of any fee an electoral standard.”75 Litigants and dissenting judges in the restoration cases have invoked Harper as well as Kramer and Cipriano, where the Court cited Harper in striking down statutory schemes that expanded voting into regulatory domains (where voting was not constitutionally required) on the basis of property status.76 Similarly, Twenty-Fourth Amendment claims have been mounted on the theory that all wealth-based mechanisms keeping citizens from voting are unconstitutional.77 But court majorities have rejected these claims by reasoning that the petitioners in Harper, Kramer,and Cipriano possessed a fundamental right to participate politically.78

In response, litigants and dissenting judges have argued that fundamental rights were not at stake in Bullock and Lubin,79 which held that economic requirements could not be used to filter out indigent candidates even though running for office was not a “fundamental right.”80 But the Court in Bullock and Lubinviewed candidacy barriers as narrowing the field of electoral options, which implicated the fundamental rights of voters by sowing “disparit[ies] in voting power based on wealth.”81 In Lubin, the Court also recognized that standing for an election—though not a right as such—still implicated the indigent candidate’s own “important interest in the continued availability of political opportunity.”82 But on the expulsion view, political nonmembers could not be the target of a poll tax or otherwise harmed by wealth-driven electoral distortions, for they lack a threshold connection to the political community and therefore have no cognizable rights or interests.

Before proceeding, it is worth pausing to consider the possibility that these protections are universally applicable, such that no person of any juridical category—whether it be enfranchised citizens, disenfranchised citizens, adolescent citizens, or noncitizen residents—can be precluded from participation solely on account of a payment. In other words, wealth is an illegitimate organizing principle by which to constitute the demos, and Harper constrains both the conferral of entry at the political boundary itself (i.e., a state cannot selectively open up voting to seventeen-year-olds or noncitizen residents through the use of wealth tests) as well as the more familiar kinds of wealth-based exclusions that differentiate eligible citizen voters already inside the political community. While the Courtin Harper referenced the individual dignitary interests at stake when someone is barred from participating on account of their indigency, it emphasized how the use of wealth as a voting qualification erodes the democratic legitimacy of electoral processes.83 With respect to these institutional interests, it is difficult to see a meaningful difference between the use of wealth criteria to expand the electorate and the use of the same criteria to narrow the electorate. Wealth criteria regulating political entry—just like rules inflating the political community along problematically ideological dimensions (like a rule conferring voting rights to nonmembers who promise to vote for a particular party)—distort election outcomes along arbitrary lines. Regardless of the targeted individual’s underlying connection to the body politic or lack thereof, financial conditions degrade a political community’s shared interests in electoral integrity, and are therefore infected with an illegitimate purpose unbecoming of a democracy.

But setting aside this reading of Harper, I proceed on the assumption that political-equality protections only extend to individuals with a predicate connection. As established in Part II, disenfranchised citizens possess political membership and are therefore within the field of constitutional coverage. The next Section explains how financially conditioned restoration amounts to a deprivation of the participatory rights and interests preserved through disenfranchisement.

B. Constitutional Harms of Financially Conditioned Restoration

Political rights are not dislodged in the way one might lose or abandon property. They instead continue to inhere in disenfranchised citizens, just as they inhered in the petitioners in Harper. The Section 2 “affirmative sanction,” as interpreted in Richardson, lowers the state’s burden of justification for overriding a right and preventing its exercise. But the introduction of a financial condition separating a disenfranchised citizen from political exercise pumps the justificatory burden back up—at that point, the state has embraced an electoral standard barring exercise on the basis of affluence, which is presumptively unconstitutional under Harper and its progeny. It remains at least theoretically possible for states to develop compelling reasons for conditioning the franchise on the repayment of fines and fees, however unlikely this may be.84 But courts should not accept states’ assertions that the future political participation of disenfranchised citizens is devoid of constitutional dimension.

Because political exercise vindicates individual dignitary interests when considered individualistically, and instrumental group interests in electoral power when considered in the aggregate, the harms of the constitutional deprivation faced by indigent disenfranchised citizens can be expressed in multiple ways.85 From a dignitary standpoint, indigent disenfranchised citizens incur a second-order form of political marginalization—their already-diminished status is further subordinated vis-à-vis disenfranchised citizens who can afford to repay obligations—when participation opportunities are differentially afforded.

From an instrumental standpoint, financially conditioned restoration may further disadvantage indigent disenfranchised citizens. When citizens are disenfranchised, political power is redistributed away from them. But they could still be made worse offwith respect to having their political preferences reflected in legislative outcomes depending on who else is excluded from—or later reincluded within—political participation. Restoring political privileges on a selective basis, especially along a salient cleavage like wealth or class status, can therefore worsen the electoral consequences of disenfranchisement for indigent disenfranchised citizens at the group level. This is not to say that, as an empirical matter, nonindigent and indigent disenfranchised citizens necessarily have diverging preferences (this proposition is almost certainly context specific).86 The point is that, as an analytical matter, financially conditioned restoration can never be an isolated, one-sided “statutory benefit” without constitutional implication and as permitted under the Court’s more recent readings of Griffin.87 It also has a negative, exclusionary underside because it redistributes political power—and power is a zero-sum game.

C. Bridging Poll Taxes with Unconstitutional Punishment

Before concluding, it is worth briefly explaining how the subordination account can shore up the punishment-based criticism of financially conditioned restoration schemes.88 In Bearden v. Georgia, the Court held that the punitive deprivation of a fundamental right or liberty—namely, but not exclusively, physical liberty from incarceration—cannot be imposed solely on account of an individual’s inability to afford a financial payment.89 But as with political-rights claims, courts have rejected Bearden challenges by reasoning that disenfranchised citizens lack deprivable political rights.90 So too, they have framed disenfranchisement as a discrete moment where rights are vacated, rather than an active and ongoing dynamic between the state and the disenfranchised citizen. This casts disenfranchisement and restoration as discontinuous state actions, and all cases of disenfranchisement—regardless of their relative length—as equivalent punishments. For instance, the Eleventh Circuit found that Florida’s restoration scheme “do[es] not impose additional punishment” upon indigent disenfranchised citizens in violation of Bearden; by contrast, the scheme “would resemble Bearden if Florida left the right to vote intact upon conviction but then revoked the franchise from any felons who could not pay their fines and restitution.”91

But from the subordination angle and in light of the relational, instrumental character of political rights, these rationales break down. Disenfranchised citizens continue to possess deprivable rights. And if political rights channel political power, then the longer someone is disenfranchised, the longer they are sapped of electoral influence and the more severe the deprivation becomes. It follows that once an individual’s disenfranchisement takes on a poverty valence because the state has introduced a financial consideration, the ongoing suppression of the right shifts in kind, from one legitimately based in the Section 2 “affirmative sanction” and its related Lockean principles to another illegitimately tying the deprivation to wealth. At that inflection point, the disenfranchised citizen incurs the deprivation of a right on the basis of inability to pay, registering a violation under Bearden.92


Far from merely extending the status quo of disenfranchisement, financially conditioned restoration intensifies the exclusion of poorer disenfranchised citizens in a manner that registers constitutionally. As courts continue to consider challenges to the practice, with the disenfranchisement of hundreds of thousands hanging in the balance, they should engage the first-order question of what disenfranchisement actually does to political rights—rather than simply accept that rights are “lost” and therefore a priorioutside the field of constitutional analysis. This is a framing choice, a function of the way in which a disenfranchised citizen is characterized vis-à-vis the political boundary and its associated juridical categories.

Beyond this litigation context, how we understand a disenfranchised citizen’s political connection speaks to broader visions of democratic belonging and distributive
justice.93 Ultimately, a disenfranchised citizen can be imagined outside the realm of the political community, or treated as a continued member whose fate remains tied to the community’s own.

Law Clerk, U.S. Court of Appeals for the Seventh Circuit; J.D. Yale Law School, 2021. I am grateful to Akhil Amar, Heather Gerken, Robert Post, and Judith Resnik for their generous conversations and engagement in the ideas presented here, and to Katie Ning, Noelle Wyman, Rachel Sommers, and the rest of the Yale Law Journal’s editorial team for their assistance. This Essay reflects only my personal views and not the views of the U.S. Court of Appeals for the Seventh Circuit or any member thereof. A previous version of this Essay was co-awarded Yale Law School’s Benjamin Scharps Prize for best paper by a third-year student.