By: Atiba R. Ellis, West Virginia University College of Law
The modern discourse critiquing vote denial policies in the United States has taken two distinct paths. The first and more recent path has been to critique the effects of legislation like voter identification laws, narrowed early voting opportunities, and similar enactments to hyper-regulate the voting process, effecting, as some argue, the ability for the poor, the elderly, and minorities to vote. The second strain of this voter suppression discourse relates to the express exclusion of persons who have been convicted of felonies from the exercise of the franchise. While both vote denial by effect or by express disenfranchisement have raised numerous civil rights concerns, few scholars have treated these issues in tandem or examined the ideological interconnections between these doctrinally distinct voter suppression doctrines. This essay will use the lens of “tiered personhood” to conceptualize the dual aspects of the voter denial problem as a unified phenomenon of political subordination intended to exclude certain persons from the political community. This essay argues that this voter suppression dynamic creates statuses as between persons based upon the ability to exercise complete or less than complete constitutional rights driven by an ideology of exclusion of those deemed “un-worthy” of full membership in the political community, thus excluding those persons from full citizenship. With the problem framed in this way, the essay will briefly use this lens to analyze the disparate treatment of convicted felons and the disparate impact of voter suppression legislation as parallel mechanisms that serve the same end—the maintenance of an American political underclass. The essay will then propose a sketch of a new model for subverting this underclass dynamic—a communitarian re-conception of American political community based on a premise of inclusion within that community rather than a dynamic of exclusion.
Cite as: Atiba R. Ellis, Tiered Personhood and the Excluded Voter, 90 Chi.-Kent. L. Rev. 463 (2015).
Available at: http://scholarship.kentlaw.iit.edu/cklawreview/vol90/iss2/4