Did Justice Sotomayor drop a hint that she opposes prisoner disenfranchisement?

A little-noticed exchange in last week’s oral arguments in Evenwel v Abbott suggests that Supreme Court Justice Sonia Sotomayor has a bone to pick with prisoner disenfranchisement.

Here’s the exchange, which law professor Derek Muller pointed out today:

Justice Sonia Sotomayor, via Wikimedia Commons

Justice Sonia Sotomayor, via Wikimedia Commons

[Plaintiffs’ lawyer William] CONSOVOY: . . . The State can solve this problem themselves. These States can enfranchise these people and give them the vote. The States come here to say we do not want them to vote, but we want them to count for districting. That should be rejected by this Court.


JUSTICE SOTOMAYOR: That’s not quite accurate. For–for most states, too many, they disenfranchise prisoners, except for those who come from that locale, which is quite rational. Most States disenfranchise the mentally ill. So how are they–who else are they going to disenfranchise.

As Muller notes, in the context of Evenwel, a case concerning which people should count when states draw legislative district lines, Sotomayor’s point is that the state can’t simply give every person living within their borders the right to vote — even if those people are affected by those states’ laws. However, in making her point, she let slip that “too many” states include prisoners — and presumably, by extension, ex-felons — in that list.

Vermont and Maine are currently the only two states that let prisoners vote. All but ten states have some form of fully automatic voting rights restoration for ex-felons.

Previous legal challenges to ex-felon disenfranchisement have failed, in part because the right to vote as outlined in the Constitution is not affirmative. States are free to take the right to vote away from their citizens, so long as they don’t do so on the basis of race, sex or other protected classes. However, voting rights advocates have long held that ex-felon disenfranchisement laws, despite being written with racially-neutral language, produce racially disparate effects. The data back them up. Not only were such laws passed with racially discriminatory intent — popping up in the late 1800s, shortly following the passage of the 15th Amendment — to this day African-Americans are far more likely to be disenfranchised due to restrictions on ex-felon voting rights than their white counterparts.

Furthermore, laws requiring ex-felons to pay legal fees before they can have their rights restored have been challenged on the grounds that they constitute an illegal wealth-based requirement for voting. At least one state, Virginia, recently warmed to this line of reasoning.

However, while the case for extending voting rights to ex-felons is strong and picking up steam, Sotomayor’s comments in last week’s oral arguments are particularly interesting because they more directly speak to the disenfranchisement of prisoners in in the first place. To be clear, she doesn’t seem to imply that there’s a solid legal argument for prohibiting states from denying voting rights for prisoners. However, she does suggests that, in her opinion, too many states choose to do so.


The really interesting thing about Justice Sotomayor’s comments is that after she said “too many” states disenfranchise prisoners, she continued, in the same sentence, to call the practice rational. As she notes, voting rights for most prisoners are, as a practical matter, complicated by the fact that they’re housed in jurisdictions other than the ones they call home. So it becomes rational for states to deny them voting rights not because they shouldn’t vote in principle, but because they’d be voting in the wrong elections. That says a lot about why a given state would want to count prisoners for apportionment without giving them voting rights — from the state’s perspective, prisoners amount to a large non-citizen population that is affected by the laws the state passes — but that says nothing about whether, as a legal or moral matter, prisoners should be denied the right to vote altogether.

While it likely won’t have an effect on the ruling in Evenwel, and voting rights for prisoners are unlikely to be argued before the Court in the near future, it’s something to keep in mind as the broader voting rights debate presses on.

Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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  • Alek Kolchak

    The non-slaveholding states didn’t want them voting. The slaveholders would have been more than happy to count their slaves as 100 percent a citizen, and the slaveholders would have been pleased as punch to give their slaves the vote. Guess how the slaves would have voted?

  • Alek Kolchak

    I’m for not counting non-citizens (visa holders and alien residents–detected illegals, naturally, are deportation fodder) when considering a state’s cut of the 435 congressional representatives. I wonder what Sortamanure would think of that?

    But getting back to prisoners: what about prisoners in federal pens? Federal prisoners do not necessarily call home the state in which the federal pen is located.

  • nicho

    Pretty much the same problem the Founders had with slaves. They wanted them to count — but not too much — and they sure as hell didn’t want them voting.

  • Hue-Man

    Write the rules so they are voting in the correct election and the correct district/state!

    “Definition of Place of Ordinary Residence

    For electoral purposes, the incarcerated elector’s place of ordinary residence is not the institution in which he or she is serving a sentence. It is the first of the following places for which the elector
    knows the civic and mailing addresses:

    his or her residence before being incarcerated; or

    the residence of the spouse, the common-law partner, a relative or dependant of the elector, a relative of his or her spouse or common-law partner or a person with whom the elector would live if not incarcerated; or

    the place of his or her arrest; or

    the last court where the elector was convicted and sentenced.”


    I’m well aware of the complexity of having prisoners vote “correctly” but it is 2015 and even prisons occasionally have computers and printers. It’s also an incentive to reduce the vast number of Americans who are incarcerated.

    Finallly, you can’t proclaim how important voting is for democracy and then turn around and say “it’s just too hard.”

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