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86 Tul. L. Rev. 389 (2011-2012)

handle is hein.journals/tulr86 and id is 393 raw text is: Documentary Disenfranchisement Jessie Allen* In the generay accepted pictur of criminal drsenfranchisement in the United States today permanent voting bans are rw. Laws on the books in most states now provide that people with criminal convictions regain their voting nghts after serving thek sentences. This Article argues that the legal reality may be sjgniFwcanty different Interviews conducted with county election officials in New York suggest that administrative pactices sometimes transform temporary voting bans into hfelong disenfranchisement Such de facto pennanent dsenfian- chisement has signficant political, legal, and cultural implications. Politically it undermines the comforting story that states'legislative refons have amelorated the antidemocratic interaction of felony disenfanchisement and the 'ar on crime high and racially dsproportionate conviction rates. Even fconfinedto only a few states, permanent &senfranchisement ia post- war-on-crme society may be politically significant in those junsdictions Legally such disenranchisement challenges the doctrinal impenetrability of a United States Supreme Court decision that has long blocked federal challenges to voting bans based on criminal conviction. Culturally the local election practices I describe reveal something about the mle of wntten text in our legal system. The pennanent enforcement of nominally temporary voting bans is accomplished though election officials' demands for nonexistent eligibility documents from people with cnininal convictions-the practice I call documentary Asenfanchisement. I prpose that those demands both refilect and construct a deep cultural undeistanding that law enacts status changes thmugh the vehicle of written tex4 changes that can only be undone by more positive text This performative view of legal language is recapitulatedin recent federal court decisions blocking challenges to felony disenfranchisement irmially those courts' constitutional interpmtations look more like the county election boards'demands for documents than the reasoning ofthe Suprme Court decision theypurport to follow I. INTRODUCTION. ..........................................391 II. BACKGROUND: THE STANDARD PICTURE OF FELONY DISENFRANCHISEMENT. .......................... .....400 A. States' Codified Laws and the Effects ofPermanent Disenfhanchisement. ........................401 B. Federal Courts'Responses to Felony Disenfranchisement... ........................408 1. Richardson v Ramirez ....................408 * C 2011 Jessie Allen. Assistant Professor, University of Pittsburgh School of Law. My thanks to readers for their helpful comments: Natasha Balendra, Deborah Brake, Mirit Eyal-Cohen, Peggy Davis, Matthew Feigin, David Garland, Haider Hamoudi, David Harris, Bernard Hibbitts, Charles Jalloh, Justin Levitt, Jules Lobel, Peter Oh, George Taylor, and J. Janewa Osei Tutu. Thanks also to my former colleagues at the Brennan Center and Advancement Project, whose work and ideas produced the findings at the core of this Article: Denise Lieberman, Nancy Northup, Erin Randolph, Alex Shalom, Kele Williams, and Erika Wood. Finally, thanks to Derek Candela, indefatigable reference checker. 389

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