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Owens v. Barnes

United States Court of Appeals for the Third Circuit

March 8, 1983, Argued ; June 30, 1983, Decided

No. 82-3207



SLOVITER, Circuit Judge.

Plaintiff, convicted of a third-degree felony under Pennsylvania law, is currently incarcerated in a Pennsylvania institution.  [*26]  He filed this action under 42 U.S.C. § 1983 claiming that the Pennsylvania Election Code violates the Equal Protection Clause of the Fourteenth Amendment by denying incarcerated convicted felons an absentee ballot which, in effect, disenfranchises them. 1

 [**2]  Plaintiff concedes that Pennsylvania could constitutionally disenfranchise all convicted felons. 2 [**3]  That concession is compelled by the decision in Richardson v. Ramirez, 418 U.S. 24, 41 L. Ed. 2d 551, 94 S. Ct. 2655 (1974). In Richardson, the Court considered not only the language of the Equal Protection Clause contained in § 1 of the Fourteenth Amendment but also the language of the less familiar § 2 of that amendment which provides for reduced representation "when the right to vote at any election . . . is denied . . . or in any way abridged, except for participation in rebellion, or other crime" (emphasis supplied). 3 After reviewing the history relating to the adoption of that section, the Court rested its conclusion that ] the state may disenfranchise felons on "the demonstrably sound proposition that § 1, in dealing with voting rights as it does, could not have been meant to bar outright a form of disenfranchisement which was expressly exempted from the less drastic sanction of reduced representation which § 2 imposed for other forms of disenfranchisement." Id. at 55.

Plaintiff, however, argues that while Pennsylvania could choose to disenfranchise all convicted felons, it has not done so; unincarcerated convicted felons, such as those who have been sentenced to probation [**4]  or released on parole, may vote. 4 Plaintiff claims that the distinction made between incarcerated and unincarcerated felons violates equal protection. He argues that because the right to vote is fundamental, the classification must withstand strict scrutiny; in the alternative, he argues the classification is not even rationally related to a legitimate state interest.

 [**5]  It has not been seriously contended that Richardson precludes any equal protection analysis when the state legislates regarding  [*27]  the voting rights of felons. In the first place, in Richardson itself the Court acknowledged that unequal enforcement, if proven, could be unconstitutional and remanded so that the California courts could consider the claim "that there was such a total lack of uniformity in county election officials' enforcement of the challenged state laws as to work a separate denial of equal protection. . . ." 418 U.S. at 56. Secondly, while there have been differing views as to whether there is any equal protection scrutiny of the state's selection of disenfranchising offenses, compare the separate opinions in the in banc decision in Allen v. Ellisor, 664 F.2d 391 (4th Cir.), vacated to consider mootness in light of new statute, 454 U.S. 807, 102 S. Ct. 80, 70 L. Ed. 2d 76 (1981), it is generally accepted that the state may not otherwise classify on a wholly arbitrary basis.  See Shepherd v. Trevino, 575 F.2d 1110, 1114-15 (5th Cir. 1978), cert. denied, 439 U.S. 1129, 59 L. Ed. 2d 90, 99 S. Ct. 1047 (1979). [**6]  ] Disenfranchisement distinctions among prisoners made on the basis of race are precluded by the Fifteenth Amendment, but the Equal Protection Clause in § 1 of the Fourteenth Amendment must be relied on to protect prisoners against invidious distinctions based on sex or other arbitrary classifications. Thus, the Comonwealth conceded at oral argument that the state could not disenfranchise similarly situated blue-eyed felons but not brown-eyed felons. It follows that the Equal Protection Clause remains applicable, even after Richardson, to some voting classifications affecting convicted felons.

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711 F.2d 25 *; 1983 U.S. App. LEXIS 26175 **

PAUL B. OWENS, Appellant, v. WILLIAM BARNES, Dauphin County Bureau of Elections, Appellee, COMMONWEALTH OF PENNSYLVANIA, Intervenor



disenfranchise, felons, incarcerated, convicted felon, classification, equal protection, right to vote, unincarcerated, franchise, election, argues, compelling state interest, legitimate state interest, plaintiff's claim, voting rights, state law, abridge, invalid, unequal, voting

Governments, State & Territorial Governments, Elections, Civil Rights Law, Protection of Rights, Prisoner Rights, Voting, Constitutional Law, Equal Protection, Nature & Scope of Protection, Discrimination, Elections, Terms & Voting, Race-Based Voting Restrictions, Gender & Sex, National Origin & Race, Criminal Law & Procedure, Postconviction Proceedings, Imprisonment, Business & Corporate Law, Distributorships & Franchises, Franchise Relationships, Franchise Agreements, General Overview, Judicial Review, Standards of Review