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90 Chi.-Kent L. Rev. 463 (2015)
Tiered Personhood and the Excluded Voter

handle is hein.journals/chknt90 and id is 491 raw text is: 


                                    ATIBA R. ELLIS*


      The United States Supreme Court's recent decisions on voting
rights have endorsed the power of states to regulate the political par-
ticipation process.1 As late as the Court's opinions in Shelby County v.
Holder2 and Arizona v. Inter-Tribal Council of Arizona,3 the Court has
recognized (again) that the power to govern elections belongs primari-
ly to the states and that supposed federal overreach concerning elec-
tions will not be tolerated.4 There are those who believe this trend
towards deference to states concerning elections ultimately protects
the political process.5 Others see this trend, along with the fact that

* Associate Professor of Law, West Virginia University College of Law. The author would like to
thank Steven Bender, Francisco Valdes, and Tayyab Mahmud for valuable feedback on early
versions of this Essay. The author would also like to thank Dean Joyce McConnell and the
Bloom/Hodges Faculty Research Fund for support of this research, and Richard Morris and Jason
Turner for their valuable research assistance. The author dedicates this Essay to his late mother
and all the others who, because of their status, found their right to vote at risk.
     1. At the outset, it is also worth noting that the recent discourse regarding immigrant
rights and regulation also focuses on this same question of the appropriate sphere of control-
state government or federal authority. The federal government has traditionally controlled the
immigration power, yet, as scholar Margaret Hu has argued, states in this field have effectively
commandeered this power, thus shifting not only the immigration debate but also core federalism
principles. See Margaret Hu, Reverse-Commandeering, 46 U.C. DAVIS L. REV. 535 (2012). These laws
clearly attempt to redefine the community permitted within the boundaries of the United States
(and points to the ideological drive behind these laws to exclude undocumented persons deemed
unworthy). See Elizabeth Keyes, Race and Immigration, Then and Now: How the Shift to 'Worthi-
ness' Undermines the 1965 Immigration Law's Civil Rights Goals, 57 How. L.I. 899, 928 (2014)
(examining the effects of shifting immigration narratives on those deemed worthy verses those
deemed unworthy). This same dynamic of exclusion of the unworthy from the American commu-
nity animates voter exclusion among the citizenry of the United States. Indeed, Keyes herself
points to felon disenfranchisement and its racial effects as representing the same dynamic. See id.
Exploring, at least initially, how the voter suppression dilemma and the felon disenfranchisement
dilemma are dual manifestations of this worthiness dynamic is a goal of this Essay.
     2. 133 S. Ct. 2612, 2623 (2013).
     3. 133 S. Ct. 2247, 2253 (2013).
     4. See id. at 2272. (interpreting the Elections Clause, U.S. CONST. art. 1, § 4, cl. 1, stating that
states shall have power over elections subject to such revisions that Congress may make).
     5. For example, Ilya Shapiro argued that the Shelby County decision restore[d] the consti-
tutional order that had been disrupted by the Section 5 preclearance scheme. This was justified
in his view because there is no longer systemic racial disenfranchisement.... See Ilya Shapiro,
Supreme Court Recognizes jim Crow's Demise, Restores Constitutional Order, SCOTUSBLOG Uune 25,

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