Erika Stern


Felon disenfranchisement, a mechanism by which felons and former felons are deprived of their right to vote, is a widespread practice that has been challenged on many grounds. However, felon disenfranchisement has not yet been properly challenged under the First Amendment. This Article argues that states implicate felons’ First Amendment rights through felon disenfranchisement without citing adequate or compelling rationales to justify this severe intrusion. In fact, at least one rationale, a rationale based on the fear of the way felons might vote, is itself inconsistent with First Amendment principles. Disenfranchising felons based on a fear of the way that felons might vote is contrary to the First Amendment, which partially sought to protect unpopular speech. Because courts in other voting rights cases have deemed similar rationales unconstitutional, this Article suggests that courts should reach the same result in felon disenfranchisement cases. Once courts recognize that this distrust-based rationale is inconsistent with First Amendment principles, states should critically consider whether other rationales are compelling enough to justify a complete denial of felons’ right to vote.