States should make decisions about felony disenfranchisement independently

The argument

Proponents of this position argue that the question of felony disenfranchisement is settled at the level of constitutional structure before it is ever reached as a matter of policy. The United States' founders, on their account, intended for state governments to run federal elections, and clearly established this in Article 1 of the Constitution and in the 10th Amendment. Because the rules governing who may cast a ballot form part of running an election, supporters hold that the authority to set them, including the authority to decide whether a felony conviction removes the franchise, rests with the states. From that premise the argument draws a strong conclusion about federal action. Creating federal laws about felony disenfranchisement is, on this view, a violation of the Constitution, because the federal government has no right to intervene in what is a states' rights issue. Proponents are careful to present this as a claim about who decides rather than about what should be decided: the position does not require holding that disenfranchisement is good policy, only that the power to adopt or repeal it lies elsewhere. The practical advice that follows is addressed to reformers. Instead of trying to create universal legislation against the practice, activists should focus on appealing to their local governments, where the decision actually sits. Supporters of the position accept, and indeed expect, the variation this produces. Naturally each state will arrive at a slightly different approach to felony disenfranchisement, and states already have different felony voting laws, with some completely disenfranchising felons and others, like Maine and Vermont, not disenfranchising them at all. That existing divergence is offered as evidence both that the matter has long been treated as a state question and that states are capable of resolving it themselves. On this reasoning, the decision should be left up to each state.

Premises

Counter-arguments

In past times, states refused to outlaw horrific practices. For example, a number of states refused to outlaw slavery before the federal government intervened. We cannot use states' rights as an excuse not to appeal to the federal government for change, especially if this is the most effective way of reforming disenfranchisement laws.

Rejecting the premises

[Rejecting P1] The constitutional claim is incomplete. Article I's Elections Clause lets states set the times, places and manner of federal elections but expressly reserves to Congress the power to "make or alter such Regulations", and the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth and Twenty-Sixth Amendments each restrict what a state may do with the franchise. The Tenth Amendment reserves only powers not delegated, so it cannot settle a question the Constitution addresses directly. [Rejecting P2] That states currently differ describes the status quo rather than justifying it — the same was true of poll taxes and literacy tests before federal intervention, which is the counter-argument's point. The premise also does not engage the objection that the content of a right should not depend on where one lives, and it leaves the position without a principle: "leave it to the states" answers who decides, while the question asks what the answer should be.