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Bar Journal - September 1, 2001

Commentary: The Disenfranchisement of New Hampshire's Incarcerated Felons

By:

INTRODUCTION

Forty-eight states, including New Hampshire, disenfranchise felons during incarceration.1  Today, an estimated 3.9 million Americans, one in fifty adults, have currently or permanently lost the ability to vote.2  Of the 3.9 million, 1.4 million have completed their sentence, and another 1.4 million are currently on probation or parole.3 

Until recently, New Hampshire was one of a few states to give incarcerated felons the right to vote. On March 24, 2000, in Fischer v. Governor, the New Hampshire Supreme Court upheld the legislature's decision to disallow the right of incarcerated felons to vote by absentee ballot. In Fischer, the court ruled that the legislature retained its authority to determine voter qualifications and that the felon disenfranchisement statutes were a reasonable exercise of legislative authority.5 

This article attempts to set forth the rationale behind disenfranchisement and propose changes to the New Hampshire Constitution, as well as the sentencing process. Part I of this article will present the facts, issue, holding and arguments in Fischer v. Governor, while part II will discuss the development of voting rights in the United States and New Hampshire. Part III will address current legislation in New Hampshire. Further, part IV will discuss current law in Pennsylvania and Massachusetts. Finally, part V will present arguments for changes to the current status of felon disenfranchisement and part VI will conclude with proposals to alter New Hampshire legislation.

I. FISCHER V. GOVERNOR

A. Facts

In Fischer, the plaintiff, David J. Fischer was incarcerated in New Hampshire State Prison for first-degree assault and witness tampering.6  In September of 1998, Fischer sought an absentee ballot registration from the Rochester City Clerk to vote in the next election.7  Denying his request, the clerk sent him a copy of RSA 607:A-2, which prohibits a felon from voting "from the time of his sentence until his final discharge."8 

Fischer brought an action against the Governor, the Secretary of State and the Supervisor of the Checklist of the City of Rochester, seeking a declaratory judgment and injunctive relief.9  The plaintiff alleged that the disenfranchisement statute violated his right to vote under Part I, Article 11 of the New Hampshire Constitution.10  The trial court (Brennan, J.) declared the disenfranchisement statute unconstitutional and ordered local election officials to allow plaintiff and others similarly situated to register and vote in the next elections.11  The State appealed from the trial court decision.12 

B. Court Holding

The New Hampshire Supreme Court's opinion focuses on whether the state felon disenfranchisement statutes13  violate Part I, Article 11 of the New Hampshire Constitution.14  The court applied a standard of reasonableness to review article 11, its constitutional history, and legislation pertinent to the historical right of felons to vote.15  The court concluded that the legislature retains the authority under Article 11 to determine voter qualifications and that the felon disenfranchisement statutes are a reasonable exercise of legislative authority.16  Thus, incarcerated felons are not "qualified" absentee voters under the absentee ballot provision of article 11, part I of the New Hampshire Constitution. However, the court noted that incarcerated misdemeanants retain the right to vote.17 

C. Arguments on Appeal

The court briefly addressed Fischer's comparison of part I, articles 1 and 2 of the New Hampshire Constitution with the pertinent parts of the Massachusetts Constitution.18  In Massachusetts, the high court determined that prisoners have a constitutionally protected right to vote.19  However, the New Hampshire Supreme Court held that article 11 of the state constitution should be read "consistently with" part I, articles 1 and 2, which states that "all men are born equally free and independent" and "all men have certain natural, essential, and inherent rights."20  Therefore, the legislature's power to determine voter qualifications may not be hindered by the broad wording of part I, articles 1 and 2 of the New Hampshire Constitution.21 

Finally, the court briefly addressed Fischer's equal protection argument.22  However, the court dismissed the argument because Fischer's brief cited federal cases alone, and thereafter he conceded that the disenfranchisement statutes did not violate any of his federal rights.23 

II. DEVELOPMENT OF VOTING RIGHTS

A. The History of Voter Qualifications in the United States

The United States has not always been governed by the full consent of all its inhabitants.24  Early on, the Federal Constitution restricted the right to vote to wealthy white male inhabitants.25  Over time, amendments to the Constitution gave the right to vote to African Americans, women and eighteen-year olds by eliminating literacy tests and property qualifications.26 

Even though the voting populace has increased over time, voter qualifications may be determined by a state's legislature.27  This granted authority has led states to divest felons of the right to vote in state and federal elections.28  For example, in 1890, the United States Supreme Court upheld the Idaho legislature's authority to proscribe voter qualifications.29  In writing for the Court, Justice Field supported the Idaho statute, which among other things, disallowed felons the right to vote.30 

A federal felony conviction includes collateral "civil" consequences along with penal sanctions, such as fines or imprisonment. While incarcerated, federal felony offenders automatically lose the right to vote, among other "civil disabilities" which may continue after the criminal sentence has been served.31 

Disenfranchisement stems from ancient Greece, where "[c]riminals pronounced infamous were prohibited from appearing in court, voting, making speeches, attending assemblies, and serving in the army."32  Deprivation of all civil rights and excommunication from the community served as punishment in the middle ages.33  In English common law, bills of attainder extinguished the "civil rights and capacities which took place whenever a person who had committed treason or felony received sentence of death for his crime."34  Attainder meant that a felon forfeited all of his estate, real and personal property.35  Later, offenders were denied the power to transfer property through the doctrine of corruption of blood. That doctrine posited that crimes were evidence that a supposed criminal and his family "were corrupt and therefore unworthy of being feudal tenants."36  Offenders denounced as "civilly dead" were absolved of all civil and political rights, severing marriages, and prohibiting the resolution of contracts or filing suit.37 

Attainder followed the English to colonial North America where voting qualifications varied greatly from one area to another. Initially, voters had to be freeholders, lifetime owners of property by outright grant or unlimited purchase, and the property had to be a specified value, not just a scrap of land.38  The value of land fluctuated to restrict the vote to the "better class of citizens."39  Particularly, the New England colonies restricted the right to vote by church membership, but gradually changed this practice and substituted religious affiliations for land or money.40 

After gaining independence from England, the United States rejected much of its common law heritage while retaining criminal disenfranchisement.41  Article III, section 3, clause 2 of the United States Constitution expressly abolished the forfeiture of rights for treason and corruption of blood as well as attainder.42 

The conclusion of the Civil War and the passage of the Fifteenth Amendment to the Federal Constitution, giving African Americans the right to vote, brought a new outlook to felon disenfranchisement. Southerners who opposed the African American right to vote lobbied to establish race preferential barriers to voting. These barriers included literacy and property ownership tests, poll taxes, grandfather clauses and criminal disenfranchisement provisions.43 

"Between 1890 and 1910, many southern states tailored their criminal disenfranchisement laws, along with other pre-existing voting qualifications, to increase the effect of these laws on African Americans."44  Disenfranchisement laws were tailored to include crimes that African Americans were thought to commit more often. In Mississippi, "legislators . . . thought that blacks were more likely to commit 'furtive offenses' such as petty theft [rather] than 'robust crimes' such as murder, thus adapting state disenfranchisement law to reflect such sentiments."45  Further, in 1944, a South Carolina historian wrote, "[a]mong the disqualifying crimes [of blacks] were . . . thievery, adultery, arson, wife-beating, housebreaking, and attempted rape."46  Murder and fighting were not included because black men did not predominantly commit these crimes.47 

Subsequently, challenges were made to the constitutionality of state disenfranchisement laws.48  However, the right of state legislators to create disenfranchisement laws prevailed over opposition. Richardson v. Ramirez is the seminal case involving a constitutional challenge to state disenfranchisement laws under the Equal Protection Clause.49  In this case, three California ex-offenders challenged the constitutionality of state law barring ex-offenders the right to register to vote. The ex-offenders argued that the statutes, which disenfranchised ex-offenders, denied them equal protection under the Federal Constitution.50  The Supreme Court "declared that states may generally deprive offenders of the right to vote without violating the Fourteenth Amendment's Equal Protection clause."51  The Supreme Court relied upon the language of section 2 of the Fourteenth Amendment, which expressly states that the right to vote shall not be "denied to any male inhabitant 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 . . . ."52 

In 1985, the limits placed on the Fourteenth Amendment's Equal Protection Clause in Ramirez were challenged in Hunter v. Underwood.53  The plaintiffs, one black and one white, alleged there was racial discriminatory intent in the Alabama Constitution.54 

In Underwood, the plaintiffs were "blocked from the voter rolls . . . by the Board of Registrars . . . because they each had been convicted of writing a worthless check."55  This crime was considered one "involving moral turpitude" under section 182 of the Alabama Constitution according to the Alabama Attorney General.56  Justice Rehnquist, writing for the majority, determined there was substantial evidence to support that this section of the Alabama Constitution had been adopted for the sole purpose of disproportionately disenfranchising blacks and overturned the provision.57  Alabama had a long-standing history of intentional and indirect exclusion of minority voters.58  "Underwood made clear that a showing of intentional discrimination is the sine qua non of an equal protection claim, under standards derived from the Court's housing discrimination jurisprudence."59 

The Supreme Court in Underwood did not revisit its section 2 analysis of the Equal Protection Clause as in Ramirez, stating, "we are confident that section 2 was not designed to permit the purposeful racial discrimination attending the enactment and operation of section 182 which otherwise violates section 1 of the Fourteenth Amendment. Nothing in our opinion in Richardson v. Ramirez . . . suggests the contrary."60  Although, the Supreme Court held the Alabama statute unconstitutional, the plaintiff was still required to demonstrate the high hurdle of intentional discrimination in order to prevail under a claim for disenfranchisement.

In 1965, the United States adopted the Voting Rights Act,61  as a remedy to persistent racial discrimination in voting. Reinforcing the Fifteenth Amendment, the Act has two principal provisions. Section 2 does not accept the application or creation of any:

voting qualification or prerequisite to voting, or standard, practice, or procedure . . . by any state or political subdivision in a manner which results in a denial or abridgement of the right of a citizen of the United States to vote on account of race or color. Section 5 requires federal approval of changes in voting procedures in areas where there is a history of discrimination.62 

Section 2 was amended in 1982 to encompass what is known as the "results test," which bars all voting qualifications, standards, practices or procedures that result in a minority group having "less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice."63  The results test called for a totality of the circumstances test to be applied rather than looking for an invidious purpose.64 

In Baker v. Pataki, incarcerated felons claimed that New York laws denying the franchise right to incarcerated and paroled felons violated the Voting Rights Act.65  In an en banc decision, the Second Circuit divided evenly on how to apply the results test of section 2 to state criminal disenfranchisement laws.66  Hence, the question of whether the Voting Rights Act applied to the states remained much debated.

B. The Founding of New Hampshire's Voter Qualifications

Three hundred years ago, a royal decree of King Charles II of England established the New Hampshire Legislature by way of a Royal Commission.67  In 1680, the Royal Commission named six men to a Council under the direction of President Cutt.68  In order for the Council to create an Assembly, the Council requested the four towns of New Hampshire to submit listings of those who owned property.69  From the lists, "freemen" who were eligible to vote were chosen as "Deputies" to pioneer the newly founded legislature.70 

In the same year, the first legislature defined a voter as "an English man, a Protestant, twenty-four years of age, possessed of 20 of taxable property, and 'not vitious in life, but honest and good conversation.'"71  Following, in 1781, the Legislature increased the taxable property value requirements from 20 to 100 for the right to elect Senators, Representatives and the Governor.72 

New Hampshire created the first state constitution in 1784.73  Article 11 of the New Hampshire Constitution provided that, "[a]ll elections ought to be free, and every inhabitant of the State, having the proper qualifications, has equal right to elect and be elected into office."74  The broad language of the article granted the right to vote to New Hampshire residents with "proper qualifications."75  Because "proper qualifications" was not defined in article 11 or the Constitution itself, it was held that the legislature necessarily had the constitutional authority to define its scope.76 

The legislature narrowed the broad "proper qualifications" rule in 1789 by restricting the right to vote to male taxpayers who were at least twenty-one years of age.77  In 1830, the legislature narrowed the constraints of franchise to "native or naturalized citizens of the United States and revoked the right to vote for 'paupers and persons excused from paying taxes at their own request.'"78 

In 1912, New Hampshire disenfranchisement laws grew when article 11 was amended to annul voting rights of those persons convicted of certain enumerated offenses.79  As a result, article 11 in pertinent part provided:

All elections ought to be free; and every inhabitant of the state, having the proper qualifications, has equal right to elect . . . no person shall have the right to vote . . . under the constitution of this state who shall have been convicted of treason, bribery, or any willful violation of the election laws of this state or of the United States . . . .80 

The first proposed amendment to article 11 included a conviction provision that listed "felony" and "larceny" within disenfranchising offenses.81  Ultimately, both categories were eliminated from the amendment in order "to strike out all offenses not relating to elections, with the exception of treason."82  The conviction provision was retained until 1925, when the legislature enacted absentee voting legislation, which allowed felons the right to vote for the first time.83  However, in 1967, the legislature repealed this grant by enacting the first felon disenfranchisement statutes. RSA 607:A-2 and RSA 654:5,84  in pertinent part, appears as follows:

607-A: 2 Rights Lost

A person sentenced for a felony, from the time of his sentence until his final discharge, may not:

(a) Vote in an election, but if execution of sentence is suspended with or without the defendant being placed on probation or he is paroled after commitment to imprisonment, he may vote during the period of the suspension or parole;

654:5 Disqualification for a Felony

A person sentenced for a felony shall forfeit his rights as provided in RSA 607:A-2

In 1974, article 11 was further amended, reducing the minimum age of voters, incorporating domicile, requiring the Secretary of State's receipt and count of votes, and mandating the availability of absentee ballots.85  Additionally, the amendment separated voting and candidacy clauses.86  Further, the proper qualifications language was removed and "retained solely in the sentence granting every inhabitant an equal right to run for office."87  By eliminating the proper qualifications provision, the "historic authority of the legislature to define voter qualifications beyond those enumerated in Article 11" was extinguished.88 

Today the voting age remains at eighteen, and all New Hampshire citizens are allowed to vote except for incarcerated felons.

III. CURRENT LEGISLATION IN NEW HAMPSHIRE- BILL CACR5

On Wednesday, January 6, 1999, Representative C. Donald Stritch (R) introduced Bill CACR5, related to voting and elective rights of incarcerated felons, into the New Hampshire House of Representatives. The proposed bill would have added one line to article 11 of the New Hampshire Constitution reading "[a]ny person who has been convicted of a felony may be denied the right to vote for any or all of the time between conviction and final discharge of sentence, as provided by law."89  The New Hampshire House of Representatives passed the proposed bill in 12-4 vote.90 

On Thursday, February 17, 2000, Bill CACR5 was introduced to the Senate. During the Senate hearing on March 22, 2000, Representative Stritch, Joshua Gordon (counsel for Fischer) and Claire Ebel (Executive Director of the New Hampshire Civil Liberties Union) testified about the bill. Speaking for the bill, Representative Stritch discussed how CACR5 was restoring pieces of the 1784 constitution, which stated that the legislature has the power to decide whether or not a felon votes from the time of his incarceration to the end of his sentence.91  Fischer's counsel, Joshua Gordon, protested against the bill.92  He discussed disenfranchisement from a historical perspective, highlighting civil death, the suffrage movement, and absentee ballots. Further, Gordon pointed out numerous things in which prisoners retain interest while incarcerated. Thus, he argued prisoners should retain the right to vote since they still have possessory interests.93  Claire Ebel made the last commentary against the proposed bill.94  She stated that granting the right to vote to incarcerated felons furthers rehabilitation.95 

At the conclusion of the arguments, the Senate killed the proposed bill.96  Nonetheless, the New Hampshire Supreme Court, in deciding Fischer, rendered the bill moot by determining that the legislature retains constitutional authority to determine voter qualifications and that the felon disenfranchisement statutes are a reasonable exercise of legislative authority.97 

IV. CURRENT LAW IN OTHER JURISDICTIONS

The legislatures and courts of some jurisdictions have upheld felon disenfranchisement statutes while other legislatures have repealed the disenfranchisement right of incarcerated felons. Most recently, the Pennsylvania Supreme Court affirmed that incarcerated felons are not qualified absentee voters and Massachusetts passed legislation to revoke incarcerated felons voting rights in state elections.

A. Pennsylvania: Mixon v. Commonwealth

In Mixon v. Commonwealth, present and former incarcerated felons, along with a black female resident and registered voter of Philadelphia, sought declaratory relief challenging Pennsylvania state election and voting laws disenfranchisement of felons as unconstitutional.98  The Election Code and the Pennsylvania Voter Registration Act excluded incarcerated felons from the definition of "qualified absentee electors" and barred a felon who had been released from a penal institution for less than five years from registering to vote.99  Pursuant to 25 P.S. 2602(w) and 3146.1 "qualified absentee electors shall in no way be construed to include persons confined in a penal institution..."100  Section 501 of the Pennsylvania Voters Registration Act delineates the qualifications for elector registrations by stating that any person who "has not been confined in a penal institution for a conviction of a felony within the last five years shall be entitled to be registered."101 

At the outset, the Pennsylvania Supreme Court remarked that the felons' argument could not prevail under the rule of stare decisis.102  The court relied on Ray v. Commonwealth, which specifically held the definition of "qualified absentee elector" to exclude persons confined in penal institutions.103  Following Martin v. Haggerty, the court upheld the constitutionality of the state's Election Code that disallowed those confined in penal institutions the right to vote.104 

Moreover, citing Lassiter v. Northhampton County Board of Elections, the court stated that, while every citizen has a general right to vote, the state has broad powers to determine the conditions under which that right may be exercised and may take into consideration an individual's criminality in determining voter qualifications.105  The state legislature has the power to establish a means of distinguishing the qualified voter from the unqualified voter.106  The court in Mixon, seeing no constitutional infirmity, reaffirmed the holding of Martin and Ray that incarcerated felons are not qualified absentee voters.107 

B. Massachusetts: Dane v. Board of Registered Voters

In 1978, the Supreme Judicial Court of Massachusetts stated, "[w]hile many other jurisdictions deprive prisoners of the voting franchise, it is clear from . . . [The Constitution of the Commonwealth of Massachusetts] and statutory provisions that Massachusetts does not."108  Inmates housed in state correctional facilities who were duly qualified, registered voters in Massachusetts's municipalities had the right to vote in state elections.109  The incarcerated registrant had to satisfy the board of registrars' qualifications by answering questions as to prior residence, length of incarceration, prior voter registration, eligibility for parole, and future plans on release from prison, among others.110  Having answered the above questions, the incarcerated registrant established his or her domicile in the Commonwealth of Massachusetts, thus establishing his or her right to vote in state elections.111 

C. Massachusetts Legislation

Massachusetts remained one of few states allowing incarcerated felons to vote in state elections for two decades following the Dane decision. In 1998, the General Court approved a proposed amendment to the state's constitution disallowing the right to vote in joint sessions of the houses on July 29, 1998 (yeas 155; nays 34) and again on June 28, 2000 (yeas 144; nays 45).112  Proposed by Massachusetts State Representative, Francis L. Marini (R-Hanson), the amendment prohibited persons incarcerated for a felony conviction in a state correctional facility the right to vote in elections for Governor, Lieutenant Governor, State Senator, or State Representative. The amendment also withheld incarcerated felons right to vote for Governor's Council, Secretary of State, State Auditor, State Attorney General, and a United States Senator or Congressional Representative.113 

Following approval, the amendment was placed on the November 2000 electoral ballot whereby Massachusetts' voters ratified the amendment to the Massachusetts Constitution.114  This furthered the repudiation of the liberties of incarcerated felons and took Massachusetts off the short list of states allowing incarcerated felons the right to vote in state elections.

V. ARGUMENTS FOR CHANGE

New Hampshire has joined a long list of states that has increased the punishment handed down to felons by denying them the right to vote. Although a prisoner loses his right to liberty he "retains all other rights subject only to those reasonable restrictions that promote the safe, orderly and secure functioning of prisons."115  In 1998, two leading organizations studying the question of disenfranchisement stated there is no plausible argument against allowing incarcerated felons the right to vote by absentee ballot.116  They argued that allowing incarcerated felons the right to vote does not interfere with prison authority, nor does voting by absentee ballot interfere with every day prison operations since prison authorities do not participate in effectuating absentee ballot procedures.117 

When the focus of a prison system is to prevent recidivism, rehabilitation should not stifle a prisoner's interests that existed prior to incarceration by absolving them of the right to vote.118  The promotion of such interests may prevent recidivism by integrating the individuals back into the community. Instead, by disenfranchising incarcerated felons, New Hampshire is heightening the notion of retributive punishment serving to disvalue and dishonor the individual, rather than rehabilitate.119 

States who advocate for disenfranchisement argue that it preserves the "purity of the ballot box."120  One fear is that offenders will vote as an anti-democratic cohesive group.121  New Hampshire clearly does not fall into this line of thought since voting rights are reinstated upon suspension of sentence, probation or parole.122 

Disenfranchisement is automatically imposed upon conviction.123  Judges are unable to prevent automatic disenfranchisement because constitutionally based provisions are not exercised through criminal law and are administrative consequences of the judicial system.124  For these reasons, the authors propose that the legislature consider altering the disenfranchisement statutes.

VI. PROPOSED NEW HAMPSHIRE LEGISLATION

The authors suggest that the legislature allow judges to address the issue of disenfranchisement during the sentencing process. Allowing judicial discretion has the potential for conflict of interest and abuse of discretion,125  however, a New Hampshire judge could avoid conflict of interest and abuse of discretion if the legislature established narrowly tailored sentencing guidelines.126  Narrowly tailored sentencing guidelines, that mirror the federal sentencing guidelines, would alleviate any disparities when sentencing similarly situated offenders.127  Consequently, felony offenders would be denied the franchise right based upon the severity of their crime. These guidelines could be retroactively applied to create a more diverse voting pool and to accurately reflect the views of New Hampshire.

ENDNOTES

1. See Marc Mauer & Jamie Fellner, Comment, Life Sentence of a Different Kind, Am. L. Media, L.P. 4 (1998) (updated with current laws and legislation since date of publication. Maine and Vermont are the only states that do not disenfranchise incarcerated felons.)
2. Id.
3. Id.
4. Fischer v. Governor, ___ N.H. ___, 749 A.2d 321 (N.H. 2000).
5. Id. at 324.
6. Id. at 323.
7. Id.
8. Id.
9. Id.
10. Id.
11. Id.
12. Id.
13. N.H. Rev. Stat. Ann. 607-A:2 (1967); N.H. Rev. Stat. Ann. 654:5 (1979).
14. Fischer, 749 A.2d at 324.
15. Id. at 329.
16. Id. at 324.
17. Id. at 330.
18. Id.
19. Id.
20. Id.
21. Id.
22. Id.
23. Id.
24. Bill Severn, The Right To Vote 3-4 (1972).
25. Marc Mauer et al., Losing the Vote: The Impact of Felony Disenfranchisement Law in the United States, (1998) <http://www.hrw.org/reports98/vote/>
26. Id.
27. See Fischer, 749 A.2d at 329.
28. Andrew Shapiro, The Disenfranchised, The Am. Prospect 35 (1997).
29. Davis v. Benson, 133 U.S. 333 (1890).
30. Id. at 346-47 (emphasis added) (quoting Murphy v. Ramsey, 114 U.S. 15 (1885) (upholding a Congressional statute excluding polygamists and bigamists from voting or holding office)).
31. Mauer, supra note 25.
32. Note, The Disenfranchisement of Ex-Felons: Citizenship, Criminality, and "The Purity of the Ballot Box," 102 Harv. L. Rev. 1300, 1301 (1989).
33. Mixon v. Commonwealth, 759 A.2d 442, 448 (Pa. 2000).
34. Black's Law Dictionary 123 (7th ed. 1999).
35. Id.
36. Note, supra note 32, at 1302.
37. Nora V. Demleitner, Continuing Payment on One's Debt to Society: The German Model of Felon Disenfranchisement as an Alternative, 84 Minn. L. Rev. 753, 766 (2000).
38. Severn, supra note 24, at 5.
39. Id. at 7.
40. Id. at 8.
41. Mauer, supra note 25.
42. Demleitner, supra note 37 (citing U.S. Const. art. III, 3, cl. 2).
43. Mauer, supra note 25.
44. Andrew L. Shapiro, Challenging Criminal Disenfranchisement Under the Voting Rights Act: A New Strategy, 103 Yale L.J. 540 (1993).
45. Id. at 541 (quoting Francis B. Simpkins, Pitchfork Ben Tillman 297 (1944)).
46. Id.
47. Id.
48. See, e.g., Richardson v. Ramirez, 418 U.S. 24 (1974); Hunter v. Underwood, 417 U.S. 222 (1985).
49. Richardson, 418 U.S. 24 (1974).
50. Id.
51. Id. at 56.
52. Id. at 42-43 (emphasis added).
53. Hunter, 417 U.S. 222 (1985).
54. Id.
55. Id. at 224.
56. Id.
57. Id. at 231.
58. Virginia Hench, The Death of Voting Rights: The Legal Disenfranchisement of Minority Voters, 48 Case W. Res. 727, 763 (1998) (citing Hunter, 471 U.S. at 227-31).
59. Id. at 763-764.
60. Hunter, 471 U.S. at 233.
61. 42 U.S.C. 1973 (1965).
62. 42 U.S.C. 1973 (a) (1994) (containing violations found with the Act).
63. 42 U.S.C. 1973 (b) (1998).
64. Id. See, e.g., White v. Regester, 412 U.S. 755 (1973) (illuminating evidentiary factors plaintiffs must use to establish a case of vote dilution).
65. Baker v. Pataki, 85 F.3d 919 (2d Cir. 1996).
66. Id.
67. Leon W. Anderson, To this day: The 300 years of the New Hampshire Legislature 13 (1981).
68. Id.
69. Id. at 15.
70. Id.
71. Id. at 31.
72. Id. at 79.
73. Id. at 82.
74. Fischer, 749 A.2d at 326.
75. Id. at 325.
76. Id. (citing State v. Sullivan, 101 N.H. 429, 430 (1958)).
77. Fischer, 749 A.2d at 430.
78. Id.
79. Id.
80. Id. at 325-326.
81. Id. at 326.
82. Id.
83. Id.
84. Id. at 327.
85. Id. at 327-328 (citing Convention to Revise the Constitution 177 (1974)).
86. Fischer, 749 A.2d at 328.
87. Id.
88. Id.
89. Article 11 of the first part of the constitution would be amended as follows: [Art.] 11 [Elections and Elective Franchises.] All elections are to be free, and every inhabitant of the state of 18 years of age and upwards shall have an equal right to vote in any election. Every person shall be considered an inhabitant for the purposes of voting in the town, ward, or unincorporated place where he or she has [his] domicile. No person shall have the right to vote under the constitution of this state who has been convicted of treason, bribery or any willful violation of the election laws of this state or of the United States; but the supreme court may, on notice to the attorney general, restore the privilege to vote to any person who may have forfeited it by conviction of such offenses. Any person who has been convicted of a felony may be denied the right to vote for any or all of the time between conviction and final discharge of sentence, as provided by law. The general court shall provide by law for voting qualified voters who at the time of the biennial or state elections, or of the primary elections therefore, or of city elections, or of town elections by official ballot, are absent from the city or town of which they are inhabitants, or who by reason of physical disability are unable to vote in person, in the choice of any officer or officers to be elected or upon any question submitted at such election. Voting registration and polling places shall be easily accessible to all persons including disabled and elderly persons who are otherwise qualified to vote in the choice of any officer or officers to be elected or upon any question submitted at such election. The right to vote shall not be denied to any person because of the nonpayment of any tax. Every inhabitant of the state, having the proper qualifications, has equal right to be elected into office subject to the provisions of this article. (emphasis added).
90. H.R. CACR5, 155th Sess. (N.H. 1999).
91. Voting and Elective Rights of Incarcerated Felons: Hearing on CACR5 Before the Senate Committee on Public Affairs, 156th Sess. (N.H. 2000) (statement of Representative Stritch).
92. Id. (statement of Joshua Gordon, counsel for David Fischer).
93. Id.
94. Id. (statement of Claire Ebel, Executive Director of the New Hampshire Civil Liberties Union).
95. Id.
96. S. CACR5, 156th Sess. (N.H. 2000).
97. Fischer, 749 A.2d 321.
98. Mixon v. Commonwealth, 759 A.2d at 444.
99. Id.
100. Id. at 445.
101. Id.
102. Id. at 447.
103. Id.
104. Id. at 447-448.
105. Id. at 448 (citing Lassiter v. Northhampton County Board of Elections, 360 U.S. 45 (1959)).
106. Mixon, 759 A.2d at 450.
107. Id. at 447-448.
108. Dane v. Board of Registrars of Voters, 371 N.E.2d 1358, 1364 (Mass. 1978).
109. Id.
110. Id.
111. Id. at 1374.
112. H.R.-S., M.A99RHB, leg., Jt. Sess. (Mass. 1998-2000).
113. Id.
114. Information provided by Rep. Francis R. Marini (r) office aide, available at <http://www.state.ma.us/sec/ele/eleres/00return/resfin.htm> (1,648,447 people voted yes to amend the constitution to limit voting rights of incarcerated felons, 926,737 voted no and 158,647 abstained).
115. Mauer, supra note 25.
116. Id.
117. The county voting registrar facilitates the necessary materials for felons to participate in elections.
118. Demleitner, supra note 37, at 788.
119. Id.
120. Id. at 771-772.
121. Id. at 772.
122. N.H. Rev. Stat. Ann. 607-A:2 (2000).
123. Demleitner, supra note 37, at 768-69.
124. Id. at 768.
125. Id. at 773.
126. Id. at 801.
127. Id.

 

The Author
Charlene Beaulieu,Class of 2002,
Franklin Pierce Law Center,
Concord, New Hampshire.
The Author
Lauren F. Hanke,Class of 2002,
Franklin Pierce Law Center,
Concord, New Hampshire.

 

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