When Felons Rule, CtdPosted: November 8, 2015
A comment posted on my initial post about changing the law that allowed convicted felon Joe Ganim to run for office again pointed out that former Republican candidate for Secretary of State Peter Lumaj made a similar proposal in 2013. Responding to that proposal, CT Newsjunkie reports that Secretary of the State Denise Merrill “said she had faith in voters’ ability to choose their candidates. She said prior felons running for office was not one of the state’s pressing election issues. Merrill said Lumaj’s proposal also raised constitutional concerns. ‘It contradicts the principle that once you have served your time and paid your debt to society, you can resume as a citizen,’ Merrill said. ‘I’m not sure it would pass constitutional muster.'”
In reading articles about Ganim’s comeback victory, I’ve seen others raise the same concern about whether denying a convicted felon the right to vote and/or run for state or local office would be constitutional. As I explain below, these concerns are without any basis in law. (Laws that impose limitations on candidates seeking federal office are a different matter and are beyond the scope of this post.) It troubles me that the Secretary of the State would suggest otherwise. Her words carry great weight and authority. She is certainly entitled to express her opinion on whether she thinks such a law would be good public policy. But she should not comment negatively on proposed legislation based on groundless legal concerns.
Let’s begin with our own state constitution. Article Sixth, § 3 of the Connecticut Constitution states:
The general assembly shall by law prescribe the offenses on conviction of which the right to be an elector and the privileges of an elector shall be forfeited and the conditions on which and methods by which such rights may be restored.
Because one must be an “elector” both to vote and to run for public office in the state, our constitution unambiguously grants the General Assembly the power to make laws that preclude persons convicted of crimes from running for office. In fact, many states have similar constitutional provisions.
What about the federal constitution? Does it impose any barriers to state laws that bar convicted felons from voting or running for office? No, it does not. As the Seventh Circuit Court of Appeals explained last year when it rejected one Mr. Parker’s claim that a law barring him from running for office because of his felony record was unconstitutional:
The right to run for or hold public office is not a fundamental right, Brazil-Breashears v. Bilandic, 53 F.3d 789, 792-93 (7th Cir. 1995), and felons are not a suspect class, Talley v. Lane, 13 F.3d 1031, 1034 (7th Cir.1994); thus, a ban on felons running for elective office is valid if it is rationally related to a legitimate state interest. See Clements v. Fashing, 457 U.S. 957, 963, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982). Illinois’s stated interest in barring felons from elective office is to ensure “public confidence in the honesty and integrity of those serving in state and local offices.” People v. Hofer, 363 Ill. App.3d 719, 300 Ill.Dec. 202, 843 N.E.2d 460, 464 (2006). Parker does not dispute the legitimacy of this interest, nor has he argued that the statute does not rationally further it. Moreover, even if a higher level of scrutiny applied to restrictions on the right of ex-felons to hold office, the claim would fail. The Supreme Court has held that states may deprive convicted felons of the right to vote — a right that, unlike Parker’s interest in running for office, is fundamental and subject to strict scrutiny. Richardson v. Ramirez, 418 U.S. 24, 56, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974); see Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 210, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008) (voting is a fundamental right).
In sum, neither the state nor the federal constitution poses any impediment to the General Assembly passing a law that bars convicted felons from running for office.
UPDATE (1/29/16): An exceedingly thoughtful professional colleague raises a question that causes me some pause. He asks whether it is possible to be an “elector” for some purposes (such as voting) but not for other purposes (such as running for public office). In other words, can the General Assembly pass a law that allows convicted felons to have their voting privileges restored, while denying them the right to run for office? Would such a law violate the Fourteenth Amendment’s guarantee of equal protection?
I have not researched this specific question, but based on the law set forth above I think the distinction is constitutionally permissible.