U.S. Supreme Court Richardson v. Ramirez, 418 U.S.
24 (1974) Richardson v. Ramirez No. 72-1589 Argued January 15,
1974 Decided June 24, 1974 418 U.S.
24 CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA Syllabus After the three individual respondents, who had been convicted
of felonies and had completed their sentences and paroles, were
refused registration to vote in three different California counties
respectively because of their felony convictions, they brought a
class petition, on behalf of themselves and all other ex-felons
similarly situated, for a writ of mandate in the California Supreme
Court, naming as defendants the Secretary of State and the three
county election officials who had denied them registration
"individually and as representatives of the class of all other"
county election officials in the State, and challenging the
constitutionality of respondents' disenfranchisement on the ground, inter alia, that provisions of the California Constitution
and the implementing statutes that disenfranchised ex-felons denied
them equal protection. The three county officials named as
defendants decided not to contest the action, and told the court
they would henceforth register to vote ex-felons, including
respondents, whose sentences and paroles had expired. Prior to the
return date of the writ, the court added to the named defendants
(instead of allowing her to intervene) another county election
official (petitioner here) who was the defendant in a similar
action by an ex-felon pending in the State Court of Appeal. After
holding that the three first-named county officials' acquiescence
did not render the case moot, the California Supreme Court went on
to hold that the constitutional and statutory provisions in
question, as applied to ex-felons whose sentences and paroles had
expired, violated the Equal Protection Clause of the Fourteenth
Amendment, but did not issue the peremptory writ. Held: 1. In view of its unusual procedural history in the Supreme
Court of California, the case is not moot. Pp. 418 U. S.
34 -40.

															(a) The State Supreme Court's action in adding petitioner as a
named defendant after the other named county officials decided not
to contest the action, and at a time when the Secretary of Page 418 U. S. 25 State (who did not join in the petition to this Court) was still
a party defendant who had answered the complaint, indicates that
the court considered the suit to be not only on behalf of the three
named plaintiffs, but also on behalf of all ex-felons in California
similarly situated, and also that the court regarded petitioner's
opponent in the Court of Appeal suit, both as an unnamed member of
the class of ex-felons referred to in the complaint and as one of a
class actually seeking to register in petitioner's county, as a
party to the Supreme Court action. Pp. 418 U. S.
38 -40.

															(b) Being rendered in a class action in which relief in the
nature of declaratory relief was granted, the decision below is not
only binding on petitioner, and thus dispositive of her other suit,
but also decides the federal constitutional question presented for
the unnamed members of the classes represented below by petitioner
and respondents, whose continuing controversy in the State Supreme
Court still continues in this Court. Brockington v.
Rhodes, 396 U. S. 41 ,
distinguished. P. 418 U. S.
40 .

															2. California, in disenfranchising convicted felons who have
completed their sentences and paroles, does not violate the Equal
Protection Clause. Pp. 418 U. S.
41 -56.

															(a) The understanding of the framers of the Fourteenth
Amendment, as reflected in the express language of § 2 of the
Amendment, which exempts from the sanction of reduced congressional
representation resulting from the denial of citizens' right to vote
the denial of such right for "participation in rebellion, or other
crime," and in the historical and judicial interpretation of the
Amendment's applicability to state laws disenfranchising felons, is
of controlling significance in distinguishing such laws from those
other state limitations on the franchise that this Court has held
invalid under the Equal Protection Clause. Pp. 418 U. S.
54 -55.

															(b) Section 1 of the Fourteenth Amendment, which contains the
Equal Protection Clause, in dealing with voting rights as it does,
could not have been meant to bar outright a form of
disenfranchisement that was expressly exempted from the less
drastic sanction of reduced representation that § 2 imposed for
other forms of disenfranchisement. P. 418 U. S.
55 .

															(c) Even if § 2 was made part of the Amendment " largely
through the accident of political exigency, rather than for the
relation which it bore to the other sections of Amendment,'" as
respondents contend, this does not preclude looking to it for
guidance in interpreting § 1, since § 2 is as much a part of the
Amendment Page 418 U. S.
26 as any of the other sections, and how it became part of the
Amendment is less important than what it says and what it means. P. 418 U. S.
55 . 9 Cal. 3d 199 ,
507 P.2d 1345, reversed and remanded.

															REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, WHITE, BLACKMUN, and POWELL, JJ.,
joined. DOUGLAS, J., filed a dissenting statement, post, p. 418 U. S. 86 .
MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J.,
joined and in Part I-A of which DOUGLAS, J., joined, post, p. 418 U. S.
56 .

															MR. JUSTICE REHNQUIST delivered the opinion of the Court.

															The three individual respondents in this case were convicted of
felonies and have completed the service of their respective
sentences and paroles. They filed a petition for a writ of mandate
in the Supreme Court of California to compel California county
election officials to register them as voters. [ Footnote 1 ] They claimed, on behalf of Page 418 U. S. 27 themselves and others similarly situated, that application to
them of the provisions of the California Constitution and
implementing statutes which disenfranchised persons convicted of an
"infamous crime" denied them the right to equal protection of the
laws under the Federal Constitution. The Supreme Court of
California held that,

															"as applied to all ex-felons whose terms of incarceration and
parole have expired, the provisions of article II and article XX,
section 11, of the California Constitution denying the right of
suffrage to persons convicted of crime, together with the several
sections of the Elections Code implementing that disqualification .
. . , violate the equal protection clause of the Fourteenth
Amendment." Ramirez v. Brown, 9 Cal. 3d 199 ,
216-217, 507 P.2d 1345, 1357 (1973). We granted certiorari, 414
U.S. 816 (1973).

															Article XX, § 11, of the California Constitution has provided
since its adoption in 1879 that "[l]aws shall be made" to exclude
from voting persons convicted of bribery, perjury, forgery,
malfeasance in office, "or other high crimes." At the time
respondents were refused registration, former Art. II, § 1, of the
California Constitution provided in part that

															"no alien ineligible to citizenship, no idiot, no insane person,
no person conflicted of any infamous crime, no person hereafter
convicted of the embezzlement or misappropriation of public money,
and no person who shall not be able to read the Constitution in the
English language and write his or her name, shall ever exercise the
privileges of an elector Page 418 U. S. 28 in this State. [ Footnote
2 ]"

															Sections 310 and 321 of the California Elections Code provide
that an affidavit of registration shall show whether the affiant
has been convicted of "a felony which disqualifies [him] from
voting." [ Footnote 3 ] Sections
383, 389, and 390 direct the county clerk to cancel the
registration of all voters who have been convicted of "any infamous
crime or of the embezzlement or misappropriation of any public
money." [ Footnote 4 ] Sections
14240 and Page 418 U. S. 29 14246 permit a voter's qualifications to be challenged on the
ground that he has been convicted of "a felony" or of "the
embezzlement or misappropriation of public money." [ Footnote 5 ] California provides by statute
for restoration of the right to vote to persons convicted of crime
either Page 418 U. S. 30 by court order after the completion of probation, [ Footnote 6 ] or, if a prison term was served,
by executive pardon after completion of rehabilitation proceedings.
[ Footnote 7 ] California also
provides a procedure by which a person refused Page 418 U. S. 31 registration may obtain judicial review of his disqualification.
[ Footnote 8 ]

															Each of the individual respondents was convicted of one or more
felonies, and served some time in jail or prison followed by a
successfully terminated parole. Respondent Ramirez was convicted in
Texas; respondents Lee and Gill were convicted in California. When
Ramirez applied to register to vote in San Luis Obispo County, the
County Clerk refused to allow him to register. The Monterey County
Clerk refused registration to respondent Lee, and the Stanislaus
County Registrar of Page 418 U. S. 32 Voters (hereafter also included in references to clerks) refused
registration to respondent Gill. All three respondents were refused
registration because of their felony convictions. [ Footnote 9 ]

															In May, 1972, respondents filed a petition for a writ of mandate
in the Supreme Court of California, invoking its original
jurisdiction. [ Footnote 10 ]
They named as defendants [ Footnote 11 ] below the three election officials of San
Luis Obispo, Page 418 U. S. 33 Monterey, and Stanislaus Counties who had refused to allow them
to register,

															"individually and as representatives of the class of all other
County Clerks and Registrars of Voters who have the duty of
determining for their respective counties whether any ex-felon will
be denied the right to vote."

															The petition for a writ of mandate challenged the
constitutionality of respondents' exclusion from the voting rolls
on two grounds. First, it was contended that California's denial of
the franchise to the class of ex-felons could no longer withstand
scrutiny under the Equal Protection Clause of the Fourteenth
Amendment. Relying on the Court's recent voting-rights cases,
respondents argued that a compelling state interest must be found
to justify exclusion of a class from the franchise, and that
California could assert no such interest with respect to ex-felons.
Second, respondents contended that application of the challenged
California constitutional and statutory provisions by election
officials of the State's 58 counties was so lacking in uniformity
as to deny them due process and "geographical . . . equal
protection." They appended a report by respondent California
Secretary of State, and the questionnaires returned by county
election officials on which it was based. The report concluded that
there was wide variation in the county election officials'
interpretation of the challenged voting exclusions. [ Footnote 12 ] The Supreme Page 418 U. S. 34 Court of California upheld the first contention, and therefore
did not reach the second one.

															Before reaching respondents' constitutional challenge, the
Supreme Court of California considered whether a decision reached
by the three county clerks not to contest the action, together with
their representation to the court that they would henceforth permit
all ex-felons whose terms of incarceration and parole had expired
to register and vote, rendered this case moot. That court decided
that it did not. The acquiescence of the three officials was in no
way binding on election officials of the other 55 California
counties in which respondents might choose to reside, and it was
undisputed that there were many ex-felons among the residents of
those counties who had been or would be refused registration on the
ground challenged. Because the case posed a question of broad
public interest, which was likely to recur and which should receive
a state-wide resolution, the court exercised its

															"inherent discretion to resolve the issue 'even though an event
occurring during its pendency would normally render the matter
moot.' . . . This rule is particularly applicable to challenges to
the validity of election laws."

															9 Cal. 3d at 203, 507 P.2d at 1347. In addition to California
cases, the court cited Roe v. Wade, 410 U.
S. 113 (1973), and Goosby v. Osser, 409 U. S. 512 (1973). Page 418 U. S. 35 As a practical matter, there can be no doubt that there is a
spirited dispute between the parties in this Court as to the
constitutionality of the California provisions disenfranchising
ex-felons. Even though the Supreme Court of California did not, in
fact, issue a permanent writ of mandate, and therefore its judgment
is in effect a declaratory judgment, an action for such relief may
stem from a controversy that is "definite and concrete, touching
the legal relations of parties having adverse legal interests." Aetna Life Insurance Co. v. Haworth, 300 U.
S. 227 , 300 U. S.
240 -241 (1937). By reason of the special relationship of
the public officials in a State to the court of last resort of that
State, the decision of the Supreme Court of California, if left
standing, leaves them permanently bound by its conclusion on a
matter of federal constitutional law. Cf. North Dakota Pharmacy
Bd. v. Snyder's Stores, 414 U. S. 156 (1973).

															This case, in some respects, presents stronger arguments for
concluding that a live case or controversy remains than in other
election cases in which we have addressed the question of mootness.
Unlike Moore v. Ogilvie, 394 U. S. 814 (1969), in which the particular candidacy was not apt to be revived
in a future election, or Hall v. Beals, 396 U. S.
45 (1969), in which the voters who had been
disenfranchised because of a residence requirement would not have
suffered the same fate under the amended statute, respondents here
are indefinitely disenfranchised by the provisions of California
law which they challenge. While the situation in Moore v.
Ogilvie, supra, was described as " capable of repetition,
yet evading review,'" 394 U.S. at 394 U. S. 816 ,
that involved here can best be described, in view of the Supreme
Court of California's decision against the state officials and
their obligation to follow the law as laid down by that court, as
"incapable of repetition," and therefore evading review. There are
thus the strongest sorts of practical arguments, as well as the
language Page 418 U. S.
36 of Moore v. Ogilvie, supra, which militate against
a conclusion of mootness in this case. But purely practical considerations have never been thought to
be controlling by themselves on the issue of mootness in this
Court. While the Supreme Court of California may choose to
adjudicate a controversy simply because of its public importance
and the desirability of a state-wide decision, we are limited by
the case or controversy requirement of Art. III to adjudication of
actual disputes between adverse parties.

															The mootness problem here arises because, as it noted, the
Supreme Court of California was assured by the three county clerks
who were named as defendants that the three named plaintiffs would
be allowed to register and vote. The three named plaintiffs resided
respectively in the California counties of San Luis Obispo,
Monterey, and Stanislaus, and the county clerks of those counties
who were named as defendants neither defended the action in the
Supreme Court of California nor sought review here. Petitioner here
is the County Clerk of Mendocino County, who though of course bound
by the judgment of the Supreme Court of California, since she was
made a party to that action, has no concrete dispute with voters
who reside in other counties. Thus, if the case were limited to the
named parties alone, it could be persuasively argued that there was
no present dispute on the issue of the right to register between
the three named individual respondents in this Court and the one
named petitioner here.

															We think, however, that the unusual procedural history of the
case in the Supreme Court of California leads to the conclusion
that the litigation before us is not moot. The individual named
plaintiffs brought their action in the Supreme Court of California
on behalf of themselves and all other ex-felons similarly situated,
and not simply Page 418 U. S. 37 those ex-felons residing in the counties in which the named
plaintiffs resided. While only the county clerks of Stanislaus,
Monterey, and San Luis Obispo were named parties defendant, they
were designated in the original complaint filed in the Supreme
Court of California "as representatives of the class of all other
County Clerks." The California Secretary of State was likewise
named a party defendant. On the basis of this complaint, the
Supreme Court of California issued an alternative writ of mandate
directed to the three named county clerks "individually and as
representatives of the class of all other County Clerks and
Registrars of Voters," directing them to register to vote not
simply the three named plaintiffs, but

															"all ex-felons whose term of incarceration and parole have
expired and who upon application demonstrate that they are
otherwise fully qualified to vote,"

															or, in the alternative, to show cause why they had not done so
upon the return date of the writ. Thus, while the Supreme Court of
California did not in so many words say that it was permitting
respondents to proceed by way of a "class action," the fact that
the court's process recited that the named clerks were subject to
it "individually and as representatives of the class of all other
County Clerks and Registrars of Voters," and the fact that the
beneficiaries of that process were not merely the named plaintiffs
but "all ex-felons whose term of incarceration and parole [had]
expired . . ." indicates that the court treated the action as one
brought for the benefit of the class described in the petition for
the writ of mandate.

															Petitioner Viola Richardson, the County Clerk of Mendocino
County, filed a complaint in intervention in the action in the
Supreme Court of California, alleging that the suit as framed by
the named plaintiffs was collusive, in that neither the three named
county clerks nor the Secretary of State could be expected to
contest the claims Page 418 U. S. 38 of plaintiffs. Petitioner Viola Richardson further alleged in
her complaint of intervention that she was a party to a lawsuit
brought against her by an ex-felon (also named Richardson) who had
sought to register in Mendocino County, had been denied the right,
and whose suit seeking to establish the right was then pending in
the State Court of Appeal.

															The county clerks actually named as defendants in the mandate
action each obeyed the alternative writ issued by the Supreme Court
of California, and did not contest the named plaintiffs' legal
claim that they had a right to vote secured by the Equal Protection
Clause of the Fourteenth Amendment which overrode the contrary
provisions of the California Constitution. The Secretary of State
appeared in the action and generally denied the named plaintiffs'
essential claims.

															The Supreme Court of California, prior to the return date of the
writ, issued an order denying petitioner Richardson's motion to
intervene, but instead ordered her added to the named defendants in
the action along with the three other named county clerks and the
Secretary of State. This action in the Supreme Court of California,
coming as it did after the acquiescence of the named clerks in the
counties in which the named plaintiffs resided, and yet at a time
when the Secretary of State was still a party defendant who had
answered the complaint, clearly indicates to us that that court
considered the action to be not only on behalf of the three named
plaintiffs, but also on behalf of all ex-felons in California
similarly situated. We are reinforced in this conclusion by the
language quoted above from the alternative writ of mandate issued
by the Supreme Court of California. Had the Supreme Court of
California based its action on petitioner Richardson's claim that
the suit was collusive, and that it might become a binding
precedent in Page 418 U. S. 39 her litigation then pending in the State Court of Appeal, it
would seem to have been sufficient to grant the motion to
intervene. But the court's action adding petitioner Richardson as a
named defendant would appear to have been based on its conclusion
that at least some members of the class represented by the
plaintiffs in fact resided in Mendocino County, and were there
seeking to exercise their right to vote. In reaching such a
conclusion, of course, the Supreme Court of California had before
it petitioner Richardson's allegation that at least her opponent in
the litigation pending in the Court of Appeal was not merely
seeking to register to vote in Mendocino County, but had brought a
lawsuit to enforce his claim.

															At the time petitioner Richardson was added as a party
defendant, the three named plaintiffs had obtained the relief which
they sought, whereas the remaining members of the class, including
petitioner Richardson's opponent in the Court of Appeal litigation,
had not. We have held that, in the federal system, one may not
represent a class of which he is not a part, Bailey v.
Patterson, 369 U. S. 31 , 369 U. S. 32 -33
(1962), and, if this action had arisen in the federal courts, there
would be serious doubt as to whether it could have proceeded as a
class action on behalf of the class of ex-felons denied the right
to register after the three named plaintiffs had been granted that
right. Indiana Employment Security Div. v. Burney, 409 U. S. 540 (1973). But California is at liberty to prescribe its own rules for
class actions, subject only to whether limits may be imposed by the
United States Constitution, and we interpret its action in adding
petitioner Richardson as a defendant to mean that it regarded her
opponent in the Court of Appeal litigation both as an unnamed
member of the class of ex-felons referred to in the mandate
complaint and as one of a class actually seeking to register in
Mendocino County, Page 418 U. S. 40 as a party to the action in the Supreme Court of California,
albeit an unnamed one.

															In Brockington v. Rhodes, 396 U. S.
41 (1969), we emphasized in finding the case moot that
appellant's "suit did not purport to be a class action, and he
sought no declaratory relief." Id. at 306 U. S. 42 . We
said:

															"[I]n view of the limited nature of the relief sought, we think
the case is moot because the congressional election is over. The
appellant did not allege that he intended to run for office in any
future election. He did not attempt to maintain a class action on
behalf of himself and other putative independent candidates,
present or future. He did not sue for himself and others similarly
situated as independent voters, as he might have under Ohio law. .
. . He did not seek a declaratory judgment, although that avenue
too was open to him. . . ." Id. at 396 U. S. 43 .
Here, unlike Brockington, there was a class action, and
relief in the nature of declaratory relief was granted. The
decision below is not only binding on petitioner Richardson, and
thus dispositive of her other Court of Appeal litigation, but also
decides the federal constitutional question presented for the
unnamed members of the classes represented below by petitioner and
respondents, whose continuing controversy led the Supreme Court of
California to conclude that this case was not moot.

															The briefs of the parties before us indicate that the adverse
alignment in the Supreme Court of California continues in this
Court, and we therefore hold the case is not moot. [ Footnote 13 ] Page 418 U. S. 41 II Unlike most claims under the Equal Protection Clause, for the
decision of which we have only the language of the Clause itself as
it is embodied in the Fourteenth Page 418 U. S. 42 Amendment, respondents' claim implicates not merely the language
of the Equal Protection Clause of § 1 of the Fourteenth Amendment,
but also the provisions of the less familiar § 2 of the
Amendment:

															"Representatives shall be apportioned among the several States
according to their respective numbers, counting the whole number of
persons in each State, excluding Indians not taxed. But when the
right to vote at any election for the choice of electors for
President and Vice President of the United States, Representatives
in Congress, the Executive and Judicial officers of a State, or the
members of the Legislature thereof, is denied to any of the male
inhabitants of such State, being twenty-one years of age, and
citizens of the United States, or in any way abridged, except
for participation in rebellion, or other crime, the basis of
representation therein shall be reduced in the proportion which the
number Page 418 U. S. 43 of such male citizens shall bear to the whole number of male
citizens twenty-one years of age in such State."

															(Emphasis supplied.)

															Petitioner contends that the italicized language of § 2
expressly exempts from the sanction of that section
disenfranchisement grounded on prior conviction of a felony. She
goes on to argue that those who framed and adopted the Fourteenth
Amendment could not have intended to prohibit outright in § 1 of
that Amendment that which was expressly exempted from the lesser
sanction of reduced representation imposed by § 2 of the Amendment.
This argument seems to us a persuasive one unless it can be shown
that the language of § 2, "except for participation in rebellion,
or other crime," was intended to have a different meaning than
would appear from its face.

															The problem of interpreting the "intention" of a constitutional
provision is, as countless cases of this Court recognize, a
difficult one. Not only are there deliberations of congressional
committees and floor debates in the House and Senate, but an
amendment must thereafter be ratified by the necessary number of
States. The legislative history bearing on the meaning of the
relevant language of § 2 is scant indeed; the framers of the
Amendment were primarily concerned with the effect of reduced
representation upon the States, rather than with the two forms of
disenfranchisement which were exempted from that consequence by the
language with which we are concerned here. Nonetheless, what
legislative history there is indicates that this language was
intended by Congress to mean what it says.

															A predecessor of § 2 was contained in an earlier draft of the
proposed amendment, which passed the House of Representatives, but
was defeated in the Senate early in 1866. The Joint Committee of
Fifteen on Reconstruction Page 418 U. S. 44 then reconvened, and, for a short period in April, 1866, revised
and redrafted what ultimately became the Fourteenth Amendment. The
Journal of that Committee's proceedings shows only what motions
were made and how the various members of the Committee voted on the
motions; it does not indicate the nature or content of any of the
discussion in the Committee. While the Journal thus enables us to
trace the evolution of the draft language in the Committee, it
throws only indirect light on the intention or purpose of those who
drafted § 2. See B. Kendrick, Journal of the Joint
Committee of Fifteen on Reconstruction 104-120 (1914).

															We do know that the particular language of § 2 upon which
petitioner relies was first proposed by Senator Williams of Oregon
to a meeting of the Joint Committee on April 28, 1866. Senator
Williams moved to strike out what had been § 3 of the earlier
version of the draft, and to insert in place thereof the
following:

															"Representatives shall be apportioned among the several states
which may be included within this Union according to their
respective numbers, counting the whole number of persons in each
State excluding Indians not taxed. But whenever in any State the
elective franchise shall be denied to any portion of its male
citizens, not less than twenty-one years of age, or in any way
abridged, except for participation in rebellion or other crime, the
basis of representation in such State shall be reduced in the
proportion which the number of such male citizens shall bear to the
whole number of male citizens not less than twenty-one years of
age." Id. at 102. The Joint Committee approved this proposal
by a lopsided margin, and the draft Amendment was reported to the
House floor with no change in the language of § 2. Page 418 U. S. 45 Throughout the floor debates in both the House and the Senate,
in which numerous changes of language in § 2 were proposed, the
language "except for participation in rebellion, or other crime"
was never altered. The language of § 2 attracted a good deal of
interest during the debates, but most of the discussion was devoted
to its foreseeable consequences in both the Northern and Southern
States, and to arguments as to its necessity or wisdom. What little
comment there was on the phrase in question here supports a plain
reading of it.

															Congressman Bingham of Ohio, who was one of the principal
architects of the Fourteenth Amendment and an influential member of
the Committee of Fifteen, commented with respect to § 2 as follows
during the floor debates in the House:

															"The second section of the amendment simply provides for the
equalization of representation among all the States of the Union,
North, South, East, and West. It makes no discrimination. New York
has a colored population of fifty thousand. By this section, if
that great State discriminates against her colored population as to
the elective franchise, (except in cases of crime), she loses to
that extent her representative power in Congress. So also will it
be with every other State."

															Cong.Globe, 39th Cong., 1st Sess., 2543 (1866). Two other
Representatives who spoke to the question made similar comments.
Representative Eliot of Massachusetts commented in support of the
enactment of § 2 as follows:

															"Manifestly no State should have its basis of national
representation enlarged by reason of a portion of citizens within
its borders to which the elective franchise is denied. If political
power shall be lost because of such denial, not imposed because
of Page 418 U. S. 46 participation in rebellion or other crime, it is to be hoped
that political interests may work in the line of justice, and that
the end will be the impartial enfranchisement of all citizens not
disqualified by crime." Id. at 2511.

															Representative Eckley of Ohio made this observation:

															"Under a congressional act, persons convicted of a crime against
the laws of the United States the penalty for which is imprisonment
in the penitentiary are now and always have been disfranchised, and
a pardon did not restore them unless the warrant of pardon so
provided."

															". . . But suppose the mass of the people of a State are
pirates, counterfeiters, or other criminals, would gentlemen be
willing to repeal the laws now in force in order to give them an
opportunity to land their piratical crafts and come on shore to
assist in the election of a President or members of Congress
because they are numerous? And let it be borne in mind that these
latter offenses are only crimes committed against property; that of
treason is against the nation, against the whole people -- the
highest known to the law." Id. at 2535.

															The debates in the Senate did not cover the subject as
exhaustively as did the debates in the House, apparently because
many of the critical decisions were made by the Republican Senators
in an unreported series of caucuses off the floor. Senator
Saulsbury of Delaware, a Democrat who was not included in the
majority caucus, observed:

															"It is very well known that the majority of the members of this
body who favor a proposition of this character have been in very
serious deliberation Page 418 U. S. 47 for several days in reference to these amendments, and have held
some four or five caucuses on the subject." Id. at 2869. Nonetheless, the occasional comments of
Senators on the language in question indicate an understanding
similar to that of the House members. Senator Johnson of Maryland,
one of the principal opponents of the Fourteenth Amendment, made
this argument:

															"Now it is proposed to deny the right to be represented of a
part simply because they are not permitted to exercise the right of
voting. You do not put them upon the footing of aliens, upon the
footing of rebels, upon the footing of minors, upon the footing of
the females, upon the footing of those who may have committed
crimes of the most heinous character. Murderers, robbers,
houseburners, counterfeiters of the public securities of the United
States, all who may have committed any crime, at any time, against
the laws of the United States or the laws of a particular State,
are to be included within the basis; but the poor black man, unless
he is permitted to vote, is not to be represented, and is to have
no interest in the Government." Id. at 3029.

															Senator Henderson of Missouri, speaking in favor of the version
of § 2 which had been reported by the Joint Committee in April, as
opposed to the earlier provision of the proposal which had been
defeated in the Senate, said this:

															"The States under the former proposition [the corresponding
provision of the original Amendment reported by the Committee of
Fifteen, which passed the House of Representatives but was defeated
in the Senate] might have excluded the negroes under Page 418 U. S. 48 an educational test and yet retained their power in Congress.
Under this, they cannot. For all practical purposes, under the
former proposition, loss of representation followed the
disfranchisement of the negro only; under this, it follows the
disfranchisement of white and black unless excluded on account of
'rebellion or other crime.'" Id. at 3033.

															Further light is shed on the understanding of those who framed
and ratified the Fourteenth Amendment, and thus on the meaning of §
2, by the fact that, at the time of the adoption of the Amendment,
29 States had provisions in their constitutions which prohibited,
or authorized the legislature to prohibit, exercise of the
franchise by persons convicted of felonies or infamous crimes.
[ Footnote 14 ]

															More impressive than the mere existence of the state
constitutional provisions disenfranchising felons at the time of
the adoption of the Fourteenth Amendment is the congressional
treatment of States readmitted to the Union following the Civil
War. For every State thus readmitted, affirmative congressional
action in the form of an enabling act was taken, and as a part of
the Page 418 U. S. 49 readmission process the State seeking readmission was required
to submit for the approval of the Congress its proposed state
constitution. In March, 1867, before any State was readmitted,
Congress passed "An act to provide for the more efficient
Government of the Rebel States," the so-called Reconstruction Act.
Act of Mar. 2, 1867, c. 153, 14 Stat. 428. Section 5 of the
Reconstruction Act established conditions on which the former
Confederate States would be readmitted to representation in
Congress. It provided:

															"That when the people of any one of said rebel States shall have
formed a constitution of government in conformity with the
Constitution of the United States in all respects, framed by a
convention of delegates elected by the male citizens of said State,
twenty-one years old and upward, of whatever race, color, or
previous condition, who have been resident in said State for one
year previous to the day of such election, except such as may
be disfranchised for participation in the rebellion or for felony
at common law, and when such constitution shall provide that
the elective franchise shall be enjoyed by all such persons as have
the qualifications herein stated for electors of delegates, and
when such constitution shall be ratified by a majority of the
persons voting on the question of ratification who are qualified as
electors for delegates, and when such constitution shall have been
submitted to Congress for examination and approval, and Congress
shall have approved the same, and when said State, by a vote of its
legislature elected under said constitution, shall have adopted the
amendment to the Constitution of the United States, proposed by the
Thirty-ninth Congress, and known as article fourteen, and when said
article shall have become a part of the Constitution Page 418 U. S. 50 of the United States, said State shall be declared entitled to
representation in Congress, and senators and representatives shall
be admitted therefrom on their taking the oath prescribed by law,
and then and thereafter the preceding sections of this act shall be
inoperative in said State. . . ."

															(Emphasis supplied.) Section 5 was introduced as a Senate
amendment to the House bill, which was concerned only with the
establishment of military government in the former Confederate
States. Cong.Globe, 39th Cong., 2d Sess., 1360-1361 (1867). The
legislative history of the Reconstruction Act was recounted by
Senator Henderson of Missouri, who ultimately voted for it:

															"As the bill originally came from the House, it was a bald and
naked proposition to establish without limitation of power or the
time of its duration a purely military government for the ten
States now unrepresented. This, in my judgment, was a most
dangerous experiment. . . ."

															"The Senate, being unwilling to embark on the experiment of pure
military rule, modified the House bill by adopting what is known a
the Blaine or Sherman amendment. This amendment conceded military
rule, as asked by the House, but put some sort of limit to its
duration. It provided that, when the rebel States should adopt
universal suffrage, regardless of color or race, excluding none,
white or black, except for treason or such crimes as were felony at
the common law, the regulation of exclusion to be left to the
States themselves, and should adopt the constitutional amendment
proposed at the lat session of Congress . . . and so soon as a
sufficient number of said States should adopt it to make it a Page 418 U. S. 51 part of the Constitution of the United States, then military law
should cease and the States should be admitted, provided that
Congress even then should see fit to receive them." Id. at 1641.

															A series of enabling acts in 1868 and 1870 admitted those States
to representation in Congress. The Act admitting Arkansas, the
first State to be so admitted, attached a condition to its
admission.Act of June 22, 1868, c. 69, 15 Stat. 72. That Act
provided:

															"WHEREAS the people of Arkansas, in pursuance of the provisions
of an act entitled 'An act for the more efficient government of the
rebel States' passed March second, eighteen hundred and
sixty-seven, and the act supplementary thereto, have framed and
adopted a constitution of State government, which is republican,
and the legislature of said State has duly ratified the amendment
to the Constitution of the United States proposed by the
Thirty-ninth Congress, and known as article fourteen:
Therefore,"

															" Be it enacted . . . That the State of Arkansas is
entitled and admitted to representation in Congress as one of the
States of the Union upon the following fundamental condition: That
the constitution of Arkansas shall never be so amended or changed
as to deprive any citizen or class of citizens of the United States
of the right to vote who are entitled to vote by the constitution
herein recognized, except as a punishment for such crimes as are
now felonies at common law, whereof they shall have been duly
convicted, under laws equally applicable to all the inhabitants of
said State: Provided, That any alteration of said
constitution prospective in its effect may be made in regard to the
time and place of residence of voters. " Page 418 U. S. 52 The phrase "under laws equally applicable to all the inhabitants
of said State" was introduced as an amendment to the House bill by
Senator Drake of Missouri. Cong.Globe, 40th Cong., 2d Sess., 2600
(1868). Senator Drake's explanation of his reason for introducing
his amendment is illuminating. He expressed concern that, without
that restriction, Arkansas might misuse the exception for felons to
disenfranchise Negroes:

															"There is still another objection to the condition as expressed
in the bill, and that is in the exception as to the punishment for
crime. The bill authorizes men to be deprived of the right to vote
'as a punishment for such crimes as are now felonies at common law,
whereof they shall have been duly convicted.' There is one
fundamental defect in that, and that is that there is no
requirement that the laws under which men shall be duly convicted
of these crimes shall be equally applicable to all the inhabitants
of the State. It is a very easy thing in a State to make one set of
laws applicable to white men, and another set of laws applicable to
colored men." Ibid. The same "fundamental condition" as was imposed by the act
readmitting Arkansas was also, with only slight variations in
language, imposed by the Act readmitting North Carolina, South
Carolina, Louisiana, Georgia, Alabama, and Florida, enacted three
days later. Act of June 25, 1868, c. 70, 15 Stat. 73. That
condition was again imposed by the Acts readmitting Virginia,
Mississippi, Texas, and Georgia early in 1870. Act of Jan. 26,
1870, c. 10, 16 Stat. 62; Act of Feb. 1, 1870, c. 12, 16 Stat. 63;
Act of Feb. 23, 1870, c.19, 16 Stat. 67; Act of Mar. 30, 1870, c.
39, 16 Stat. 80; Act of July 15, 1870, c. 299, 16 Stat. 363. Page 418 U. S. 53 This convincing evidence of the historical understanding of the
Fourteenth Amendment is confirmed by the decisions of this Court
which have discussed the constitutionality of provisions
disenfranchising felons. Although the Court has never given plenary
consideration to the precise question of whether a State may
constitutionally exclude some or all convicted felons from the
franchise, we have indicated approval of such exclusions on a
number of occasions. In two cases decided toward the end of the
last century, the Court approved exclusions of bigamists and
polygamists from the franchise under territorial laws of Utah and
Idaho. Murphy v. Ramsey, 114 U. S. 15 (1885); Davis v. Beason, 133 U. S. 333 (1890). Much more recently, we have strongly suggested in dicta
that exclusion of convicted felons from the franchise violates no
constitutional provision. In Lassiter v. Northampton County
Board of Elections, 360 U. S. 45 (1959), where we upheld North Carolina's imposition of a literacy
requirement for voting, the Court said, id. at 360 U. S.
51 :

															"Residence requirements, age, previous criminal record
( Davis v. Beason, 133 U. S. 333 , 133 U. S.
345 -347) are obvious examples indicating factors which a
State may take into consideration in determining the qualifications
of voters."

															Still more recently, we have summarily affirmed two decisions of
three-judge District Courts rejecting constitutional challenges to
state laws disenfranchising convicted felons. Fincher v.
Scott, 352 F.
Supp. 117 (MDNC 1972), aff'd, 411 U.S. 961 (1973); Beacham v. Braterman, 30 F. Supp. 182 (SD Fla.), aff'd, 396 U. S. 12 (1969). Both District Courts relied on Green v. Board of
Elections, 380 F.2d 445 (1967), cert. denied, 389
U.S. 1048 (1968), where the Court of Appeals for the Page 418 U. S. 54 Second Circuit held that a challenge to New York's exclusion of
convicted felons from the vote did not require the convening of a
three-judge district court.

															Despite this settled historical and judicial understanding of
the Fourteenth Amendment's effect on state laws disenfranchising
convicted felons, respondents argue that our recent decisions
invalidating other state-imposed restrictions on the franchise as
violative of the Equal Protection Clause require us to invalidate
the disenfranchisement of felons as well. They rely on such cases
as Dunn v. Blumstein, 405 U. S. 330 (1972), Bullock v. Carter, 405 U.
S. 134 (1972), Kramer v. Union Free School
District, 395 U. S. 621 (1969), and Cipriano v. City of Houma, 395 U.
S. 701 (1969), to support the conclusions of the Supreme
Court of California that a State must show a "compelling state
interest" to justify exclusion of ex-felons from the franchise and
that California has not done so here.

															As we have seen, however, the exclusion of felons from the vote
has an affirmative sanction in § 2 of the Fourteenth Amendment, a
sanction which was not present in the case of the other
restrictions on the franchise which were invalidated in the cases
on which respondents rely. We hold that the understanding of those
who adopted the Fourteenth Amendment, as reflected in the express
language of § 2 and in the historical and judicial interpretation
of the Amendment's applicability to state laws disenfranchising
felons, is of controlling significance in distinguishing such laws
from those other state limitations on the franchise which have been
held invalid under the Equal Protection Clause by this Court. We do
not think that the Court's refusal to accept Mr. Justice Harlan's
position in his dissents in Reynolds v. Sims, 377 U.
S. 533 , 377 U.S.
589 (1964), and Carrington v. Rash, 380 U. S.
89 , 380 U. S. 97 (1965), that § 2 is the only part of the Amendment Page 418 U. S. 55 dealing with voting rights, dictates an opposite result. We need
not go nearly so far as Mr. Justice Harlan would to reach our
conclusion, for we may rest 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. Nor can we accept respondents' argument that,
because § 2 was made part of the Amendment

															"'largely through the accident of political exigency, rather
than through the relation which it bore to the other sections of
the Amendment,'"

															we must not look to it for guidance in interpreting § 1. It is
as much a part of the Amendment as any of the other sections, and
how it became a part of the Amendment is less important than what
it says and what it means.

															Pressed upon us by the respondents, and by amici
curiae, are contentions that these notions are outmoded, and
that the more modern view is that it is essential to the process of
rehabilitating the ex-felon that he be returned to his role in
society as a fully participating citizen when he has completed the
serving of his term. We would by no means discount these arguments
if addressed to the legislative forum which may properly weigh and
balance them against those advanced in support of California's
present constitutional provisions. But it is not for us to choose
one set of values over the other. If respondents are correct, and
the view which they advocate is indeed the more enlightened and
sensible one, presumably the people of the State of California will
ultimately come around to that view. And if they do not do so,
their failure is some evidence, at least, of the fact that there
are two sides to the argument. Page 418 U. S. 56 We therefore hold that the Supreme Court of California erred in
concluding that California may no longer, consistent with the Equal
Protection Clause of the Fourteenth Amendment, exclude from the
franchise convicted felons who have completed their sentences and
paroles. The California court did not reach respondents'
alternative contention 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, and we believe that it should have an opportunity to
consider the claim before we address ourselves to it. Accordingly,
we reverse and remand for further proceedings not inconsistent with
this opinion. It is so ordered. [ Footnote 1 ]

															The petition for a writ of mandate in the Supreme Court of
California also named the California Secretary of State as a
respondent in his capacity of chief elections officer of the State
of California. He did not join the petition for a writ of
certiorari to this Court, and has filed a brief as a party
respondent. Respondents here (petitioners below) also include, in
addition to the three individual respondents, the League of Women
Voters and three nonprofit organizations which support the
interests of ex-convicts -- Los Pintos, 7th Step Foundations, Inc.
(California Affiliates), and Prisoners' Union.

															[ Footnote 2 ]

															Proposition 7, passed at the November 7, 1972, general election,
repealed former Art. II, § 1, of the California Constitution and
added new Art. II, § 3:

															"The Legislature shall prohibit improper practices that affect
elections and shall provide that no severely mentally deficient
person, insane person, person convicted of an infamous crime, nor
person convicted of embezzlement or misappropriation of public
money, shall exercise the privileges of an elector in this
state."

															The Supreme Court of California concluded that the new
constitutional provision was no different in substance from the
former one, and that it did not implicitly repeal the implementing
sections of the California Elections Code challenged here.

															[ Footnote 3 ]

															Section 310 of the California Elections Code provides in
relevant part that

															"[t]he affidavit of registration shall show:"

															" * * * *" "(h) That the affiant is not disqualified to vote by reason of a
felony conviction."

															Section 321 sets the form of the registration affidavit, which
includes the following: "10. I am not disqualified to vote by
reason of a felony conviction."

															[ Footnote 4 ]

															Section 383 of the California Elections Code provides:

															"The county clerk shall cancel the registration in the following
cases:"

															" * * * *" "(c) Upon the production of a certified copy of a subsisting
judgment of the conviction of the person registered of any infamous
crime or of the embezzlement or misappropriation of any public
money. . . ."

															Section 389 provides:

															"The county clerk shall, in the first week of September in each
year, examine the records of the courts having jurisdiction in case
of infamous crimes and the embezzlement or misappropriation of
public money, and shall cancel the affidavits of registration of
all voters who have been finally convicted of an infamous crime or
of the embezzlement or misappropriation of public money. . . ."

															Section 390 provides:

															"The county clerk, on the basis of the records of courts in the
county having jurisdiction of such offenses, shall furnish to the
registrar of voters in a county where there is a registrar of
voters, before the first day of September of each year a statement
showing the names of all persons convicted of infamous crimes or of
the embezzlement or misappropriation of public money during the
year prior to that first day of September, whose convictions have
become final. The registrar of voters shall, during the first week
of September in each year, cancel the affidavits of registration of
such persons. The county clerk shall certify the statement under
the seal of his office. . . ."

															[ Footnote 5 ]

															Section 14240 of the California Elections Code (Supp. 1974)
provides:

															"A person offering to vote may be orally challenged within the
polling place only by a member of the precinct board upon any or
all of the following grounds:"

															" * * * *" "(g) That he has been convicted of a felony."

															" * * * *" "On the day of the election. no person, other than a member of a
precinct board or other official responsible for the conduct of the
election, shall challenge any voter or question him concerning his
qualifications to vote. . . ."

															Section 14246 (Supp. 1974) provides:

															"If the challenge is on the ground that the person challenged
has been convicted of a felony or that he has been convicted of the
embezzlement or misappropriation of public money, he shall not be
questioned, but the fact may be proved by the production of an
authenticated copy of the record or by the sworn oral testimony of
two witnesses."

															[ Footnote 6 ]

															Section 1203.4 of the California Penal Code (Supp. 1974)
provides:

															"(a) In any case in which a defendant has fulfilled the
conditions of probation for the entire period of probation, or has
been discharged prior to the termination of the period of
probation, or in any other case in which a court, in its discretion
and the interests of justice, determines that a defendant should be
granted the relief available under this section, the defendant
shall, at any time after the termination of the period of
probation, if he is not then serving a sentence for any offense, on
probation for any offense, or charged with the commission of any
offense, be permitted by the court to withdraw his plea of guilty
or plea of nolo contendere and enter a plea of not guilty;
or, if he has been convicted after a plea of not guilty, the court
shall set aside the verdict of guilty; and, in either case, the
court shall thereupon dismiss the accusations or information
against the defendant and he shall thereafter be released from all
penalties and disabilities resulting from the offense of which he
has been convicted. The probationer shall be informed of this right
and privilege in his probation papers. . . ."

															[ Footnote 7 ]

															Section 4852.01 of the California Penal Code (1970) provides
that a person convicted of a felony who was incarcerated may file,
any time after his release from custody, a notice of intention to
apply for a certificate of rehabilitation and pardon. It further
provides, however:

															"This chapter shall not apply to persons convicted of
misdemeanors; to persons who have served time in county jails only;
to persons serving a mandatory life parole; to persons committed
under death sentences; or to persons in the military service."

															Section 4852.13 of the California Penal Code (1970)
provides:

															"If, after hearing, the court finds that the petitioner has
demonstrated by his course of conduct his rehabilitation and his
fitness to exercise all of the civil and political rights of
citizenship, the court shall make an order declaring that the
petitioner has been rehabilitated, and recommending that the
Governor grant a full pardon to the petitioner. Such order shall be
filed with the clerk of the court, and shall be known as a
certificate of rehabilitation. The certificate shall show the date
on which the original notice of intention to apply for a
certificate was filed."

															Section 4852.16 provides:

															"The certified copy of a certificate of rehabilitation
transmitted to the Governor shall constitute an application for a
full pardon upon receipt of which the Governor may, without any
further investigation, issue a pardon to the person named therein,
except that, pursuant to Section 1 of Article VII of the
Constitution, the Governor shall not grant a pardon to any person
twice convicted of felony, except upon the written recommendation
of a majority of the judges of the Supreme Court."

															Section 4852.17 (Supp. 1974) provides:

															"Whenever a person is granted a full and unconditional pardon by
the Governor, based upon a certificate of rehabilitation, the
pardon shall entitle the person to exercise thereafter all civil
and political rights of citizenship, including but not limited to:
(1) the right to vote. . . ."

															[ Footnote 8 ]

															Section 350 of the California Elections Code (1961)
provides:

															"If the county clerk refuses to register any qualified elector
in the county, the elector may proceed by action in the superior
court to compel his registration. In an action under this section,
as many persons may join as plaintiffs as have causes of
action."

															Respondents contended that pardon was not an effective device
for obtaining the franchise, noting that, during 1968-1971, 34,262
persons were released from state prisons, but only 282 pardons were
granted.

															[ Footnote 9 ]

															Respondent Ramirez was convicted in Texas of the felony of
"robbery by assault" in 1952. He served three months in jail and
successfully terminated his parole in 1962. In February, 1972, the
San Luis Obispo County Clerk refused to allow Ramirez to register
to vote on the ground that he had been convicted of a felony and
spent time in incarceration. Respondent Lee was convicted of the
felony of heroin possession in California in 1955, served two years
in prison, and successfully terminated his parole in 1959. In
March, 1972, the Monterey County Clerk refused to allow Lee to
register to vote on the sole ground that he had been convicted of a
felony and had not been pardoned by the Governor. Respondent Gill
was convicted in 1952 and 1967 of second-degree burglary in
California, and in 1957 of forgery. He served some time in prison
on each conviction, followed by a successful parole. In April,
1972, the Stanislaus County Registrar of Voters refused to allow
Gill to register to vote on the sole ground of his prior felony
convictions.

															[ Footnote 10 ]

															Paragraph VI of respondents' petition for mandamus states that
the named

															"Petitioners bring this action individually and on behalf of all
other persons who are ineligible to register to vote in California
solely by reason of a conviction of a felony other than an election
code felony."

															The remainder of the petition makes it clear that the class was
further restricted to ex-felons, and the Supreme Court of
California so treated it.

															[ Footnote 11 ]

															We refer to the named "defendants" in the action in the Supreme
Court of California, even though in that court they were actually
denominated respondents according to California practice, and we
refer to named "plaintiffs" in that court, even though they were
actually there denominated as petitioners. We do this for
convenience of reference, in order to avoid as much as possible
confusion between reference to the position of the parties in the
Supreme Court of California and their position here.

															[ Footnote 12 ]

															The parties agree that the lack of uniformity is the result of
differing interpretations of the 1966 Supreme Court of California
decision in Otsuka v. Hite, 64 Cal. 2d
596 , 414 P.2d 412, which defined "infamous crime" as used in
the California constitutional provisions.

															The California Secretary of State's report noted that "[m]ost"
of the 49 responding counties

															"have attempted to develop consistent criteria for determining
which ex-felons shall be entitled to register. In some counties,
these policies have been formalized in writing, but in most
instances a case-by-case method has been used."

															The report concluded:

															"2. Although the policy within most counties may be consistent,
the fact that some counties have adopted different policies has
created a situation in which there is a lack of uniformity across
the state. It appears from the survey that a person convicted of
almost any given felony would find that he is eligible to vote in
some California counties and ineligible to vote in others."

															"3. In order to remedy this lack of uniformity, authoritative
guidelines from either the legislature or the courts are urgently
needed."

															[ Footnote 13 ]

															Our Brother MARSHALL argues in dissent that, since the Supreme
Court of California did not issue the peremptory writ of mandate,.
its opinion in this case is an advisory one which does not come
within the "case or controversy" requirement of Art. III of the
Constitution. He also contends that that court's refusal to issue
the peremptory writ must rest on some unarticulated state ground,
which he concludes should bar review of the federal constitutional
question by this Court.

															The Supreme Court of California has only recently noted its
policy of avoiding advisory opinions on abstract questions of law, In re William M., 3 Cal. 3d 16 ,
473 P.2d 737 (1970), while in the same opinion adverting to its
"declaratory use of habeas corpus in a number of cases" such as In re Gonsalves, 48 Cal. 2d 638 311 P.2d 483 (1957). In support of its determination in the case
before us that exercise of its original jurisdiction would be
appropriate, the Supreme Court of California cited Young v.
Gnoss, 7 Cal. 3d 18 ,
496 P.2d 445 (1972). There it had exercised its original mandamus
jurisdiction to conclude that the durational residence requirements
for voting imposed by California law violated the Equal Protection
Clause of the Fourteenth Amendment. Saying that its "function at
this time is simply to declare the minimum that must be done to
implement Dunn v. Blumstein[, 405 U.
S. 330 (1972)]," 7 Cal. 3d at 27, 496 P.2d at 451, the
court refused to issue a peremptory writ of mandate in that case,
just as it did here, saying that,

															"[s]ince there is no reason to believe that any of the parties
to this proceeding will not accede to our holdings herein, no
purpose would be served by issuing a writ of mandate to compel such
compliance with respect to the November, 1972, general election. .
. ." Id. at 29, 496 P.2d at 453. United States courts of
appeals, which are barred by the case or controversy requirement of
Art. III from issuing advisory opinions, have nonetheless declined
to issue peremptory writs against district judges on the assumption
that the latter would abide by the opinion of the court of appeals
without the compulsion of such a writ. In re United
States, 257 F.2d 844 (CA5 1958); In re United States, 207 F.2d 567 (CA5 1953).

															We think that the reliance of the Supreme Court of California on
its earlier decision recognizing and approving the use of its
original jurisdiction to grant declaratory relief, as well as its
reliance on precedent in an original mandamus proceeding in which
it reached the merits but declined to issue the peremptory writ
where there was no question of mootness, supports our conclusion
that that court's judgment in this case is for all practical
purposes at least a declaratory judgment. And it is well settled
that, where there is "an actual and acute controversy," an appeal
from a declaratory judgment of a state court presents a "case or
controversy" within this Court's jurisdiction. Nashville, C.
& St. L.R. Co. v. Wallace, 288 U.
S. 249 (1933). Indeed, any other conclusion would
unnecessarily permit a state court of last resort, quite contrary
to the intention of Congress in enacting 28 U.S.C. § 1257, to
invalidate state legislation on federal constitutional grounds
without any possibility of state officials who were adversely
affected by the decision seeking review in this Court.

															We are equally unable to accept the view of the dissenters that
the California court's failure here to issue the peremptory writ
must rest on that court's resolution of some unspecified state law
question against petitioner. The mere failure of a state court to
award peremptory relief in a proceeding which it treats as one for
a declaratory judgment is not an "adequate state ground" which
precludes our review of its federal constitutional holding.

															[ Footnote 14 ]

															Ala.Const., Art. 6, § 5 (1819); Cal.Const., Art. 2, § 5 (1849);
Conn.Const., Art. 6, § 3 (1818); Del.Const., Art. 4, § 1 (1831);
Fla.Const., Art. 6, § 4 (1838); Ga.Const., Art. 2, § 6 (1868);
Ill.Const., Art. , § 30 (1818); Ind.Const., Art. 6, § 4 (1816);
Iowa Const., Art. 2, § 5 (1846); Kan.Const., Art. 5, § 2 (1859);
Ky.Const., Art. 6, § 4 (1799); La.Const., Art. 6, § 4 (1812);
Md.Const., Art. 1, § 5 (1851); Minn.Const., Art. 7, § 2 (1857);
Miss.Const., Art. 6, § 5 (1817); Mo.Const., Art. 3, § 14 (1820);
Nev.Const., Art. 2, § 1 (1864); N.J.Const., Art. 2, § 1 (1844);
N.Y.Const., Art. 2, § 2 (1821); N.C.Const., Art. 6, § 5 (1868);
Ohio Const., Art. 4, § 4 (1802); Ore.Const., Art. 2, § 3 (1857);
R.I.Const., Art. 2, § 4 (1842); S.C.Const., Art. 4 (1865);
Tenn.Const., Art. 4, § 2 (1834); Tex.Const., Art. 7, § 4 (1845);
Va.Const., Art. 3, § 14 (1830); W.Va.Const., Art. 3, § 1 (1863);
Wis.Const., Art. 3, § 2 (1848).

															MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins,
dissenting.

															The Court today holds that a State may strip ex-felons who have
fully paid their debt to society of their fundamental right to vote
without running afoul of the Fourteenth Amendment. This result is,
in my view, based on an unsound historical analysis which already
has been rejected by this Court. In straining to reach that result,
I believe that the Court has also disregarded important limitations
on its jurisdiction. For these reasons, I respectfully dissent. I A brief retracing of the procedural history of this case is
necessary to a full understanding of my views. Each of the
respondents, the plaintiffs below, [ Footnote 2/1 ] had been convicted Page 418 U. S. 57 of a felony unrelated to voting and had fully served his term of
incarceration and parole. Each applied to register to vote in his
respective county -- Ramirez in San Luis Obispo County, Lee in
Monterey County, and Gill in Stanislaus County. All three were
refused registration because, under applicable provisions of the
California Constitution, "no person convicted of any infamous crime
. . . shall ever exercise the privileges of an elector." [ Footnote 2/2 ]

															The three named plaintiffs filed a petition for a writ of
mandate in the California Supreme Court, invoking its original
jurisdiction. Plaintiffs challenged the State's disenfranchisement
of ex-felons as being violative of the Equal Protection Clause of
the Fourteenth Amendment, and sought issuance of a peremptory writ
of mandate to compel their registration. The complaint labeled the
suit as brought "individually and on behalf of all other persons
who are ineligible to register to vote in California solely by
reason of a conviction of a felony other than an election code
felony" and who had fully served their terms of incarceration and
parole. The complaint named as defendants the election officials
who had refused to register them,

															"individually and as representatives of the class of all other
County Clerks and Registrars of Voters who have the duty of
determining for their respective counties whether any ex-felon will
be denied the right to vote. " Page 418 U. S. 58 The three named election officials did not contest the action,
and represented to the state court that they would permit the named
plaintiffs and all similarly situated ex-felons in their counties
to register and to vote. The representative of the Secretary of
State of California, also named as a defendant, has similarly
agreed not to contest the suit. [ Footnote 2/3 ] At this point in the litigation, all of
the named plaintiffs had been voluntarily afforded the relief they
were seeking by the election officials in their respective
counties.

															Subsequently, the petitioner in this Court, Viola Richardson, as
County Clerk of Mendocino County, filed a motion to intervene in
the proceedings before the California Supreme Court. She indicated
to the court that she was being sued in a separate action in a
lower state court by an ex-felon seeking to register in her county,
and that the decision in this case would be dispositive of the
legal issue in that controversy. The State Supreme Court ordered
Richardson added as a named defendant in the instant action, but
did not name the ex-felon suing her as a plaintiff or named class
representative herein.

															In its opinion, the California Supreme Court found the case not
to be moot, and took the opportunity to address the merits of the
Fourteenth Amendment issue. It indicated that, in its view, the
ex-felon disenfranchisement provision of the California
Constitution and its implementing statutes violated the Equal
Protection Clause. The state court did not, however, afford the
plaintiffs the relief they sought. The court denied the peremptory
writ of mandate.

															Although the California Supreme Court did not issue a writ
ordering Richardson to register either the ex-felon Page 418 U. S. 59 suing her or any other potential elector in her county, she
sought review of the state court's decision by way of writ of
certiorari in this Court. The election officials in the named
plaintiffs' counties did not seek review and the Secretary of State
filed a memorandum opposing review by this Court. A There are a number of reasons why I do not believe this case is
properly before us at this time. First, I am persuaded that the
judgment of the California Supreme Court rests on an adequate and
independent state ground.

															"This Court, from the time of its foundation, has adhered to the
principle that it will not review judgments of state courts that
rest on adequate and independent state grounds. . . . Our only
power over state judgments is to correct them to the extent that
they incorrectly adjudge federal rights. And our power is to
correct wrong judgments, not to revise opinions. We are not
permitted to render an advisory opinion, and if the same judgment
would be rendered by the state court after we corrected its views
of federal laws, our review could amount to nothing more than an
advisory opinion." Herb v. Pitcairn, 324 U. S. 117 , 324 U. S.
125 -126 (1945).

															Plaintiffs sought, from the California Supreme Court, a writ of
mandate compelling their registration. The state court denied that
relief. The entirety of the judgment of that court is as
follows:

															"The alternative writ, having served its purpose, is discharged,
and the petition for peremptory writ is denied." Ramirez v. Brown, 9 Cal. 3d 199 ,
217, 507 P.2d 1345, 1357 (1973). [ Footnote 2/4 ] Page 418 U. S. 60 The accompanying opinion indicates that the California court did
not consider the case before it to be moot, and that, in its view,
the plaintiffs' assertion that the disenfranchisement provisions
were unconstitutional was well taken. Since the court nonetheless
denied plaintiffs the relief they sought, we can only conclude that
it did so on independent state law grounds. Cf. Brockington v.
Rhodes, 396 U. S. 41 , 396 U. S. 44 (1969). For example, a writ of mandate being discretionary, the
state court may have declined its issuance simply because the named
plaintiffs had already been registered and mandate relief seemed
unnecessary. [ Footnote 2/5 ] There
is certainly no indication that the decision to deny the writ was
based on the state court's view on any federal question.

															This Court creates an interesting anomaly by purporting to
reverse the judgment of the California court. Since that court
denied a writ of mandate to compel the registration of ex-felons,
the only disposition consistent with this Court's view that the
California disenfranchisement provisions are constitutional would
be to affirm the judgment below. By reversing, the Court apparently
directs the issuance of the peremptory writ. This anomaly
demonstrates that this is a classic example of a case where "the
same judgment would be rendered by the state court after we
corrected its views of federal laws," Herb v. Pitcairn,
supra, at 324 U. S. 126 ;
hence we can but offer an advisory opinion here. Whether we agree
or disagree with the state court's view of the constitutionality of
the challenged provisions, the judgment of the state court will
necessarily remain to deny the writ of mandate.

															The Court is aware of this problem, and purports to resolve it
by speculating that the California court may Page 418 U. S. 61 have afforded plaintiffs declaratory relief. Such speculation is
totally unfounded. Neither the opinion nor the judgment of the
court below even mentions declaratory relief. The plaintiffs did
not seek a declaratory judgment. The California Constitution, on
its face, appears to bar the State Supreme Court from issuing a
declaratory judgment in an original proceeding such as the one
before us, since it limits that court's original jurisdiction to
"proceedings for extraordinary relief in the nature of mandamus,
certiorari, and prohibition." Calif.Const., Art. 6, § 10 (Supp.
1974). Exclusive jurisdiction for suits seeking declaratory relief
is vested, by statute, in the State Superior Courts. [ Footnote 2/6 ]

															This Court's basis for construing the judgment of the court
below as affording declaratory relief is its argument that, because
the California Supreme Court is the highest court of the State, its
observations on the constitutionality of the challenged
disenfranchisement provisions are apt to be heeded by state
officials. It is true that the opinion of the California court did
indicate a view on the merits of the plaintiffs' constitutional
claim. But this Court's power "is to correct wrong judgments, not
to revise opinions." Herb v. Pitcairn, supra, at 324 U. S. 126 .
One could always argue that, where a state court had commented on a
matter of federal law, state officials would heed those comments.
To say that such comments are a "declaration of federal law"
reviewable by this Court is a rationale that would reach every case
in which the state court decision rests on adequate Page 418 U. S. 62 state grounds, rendering that doctrine a virtual nullity. The
Court also cites two cases for the proposition that the California
Supreme Court can issue a declaratory judgment in an original
proceeding. But on closer inspection, the cases cited by the Court, ante at 418 U. S. 41 n.
13, merely demonstrate that California courts, whose jurisdiction
is not limited by any equivalent to Art. III, are free to render
advisory opinions. [ Footnote 2/7 ]
There is little doubt Page 418 U. S. 63 that many public officials would heed such an advisory opinion
from the California Supreme Court, and they would also heed an
advisory opinion issued by this Court, but that does not free us
from the constitutional limitations on our jurisdiction.

															Because I believe that the judgment of the California court was
based on adequate and independent state grounds, I do not think we
have jurisdiction to consider any other issues presented by this
case. B Assuming, arguendo, that the California Supreme Court
did grant a declaratory judgment, I still believe that we are
without jurisdiction, because no case or controversy is presented.
The Court seems willing to concede that the claims of the named
plaintiffs may well be moot. Ante at 418 U. S. 36 .
The Court, however, premises its Page 418 U. S. 64 jurisdiction on the assumption that there is a live controversy
between the named petitioner in this Court and the unnamed
plaintiff class members in her own county. To reach this
conclusion, it is essential for the Court to conclude that this
case is, in fact, a class action, and that, in the circumstances of
this case, it is appropriate to look to unnamed class members to
determine whether there is a live controversy.

															I am forced to point out that one of the crucial premises upon
which the Court bases its assumption of jurisdiction -- the
existence of a class action -- is highly speculative. I am
persuaded that the California court never treated this case as a
class action. As the majority notes, the case was titled a class
action by its originators, and the show cause order merely tracked
the language of the complaint. But the California court was, of
course, not bound by that designation. In the entirety of its
lengthy opinion, the California court does not once refer to this
suit as a class action, to respondents as class representatives, to
the existence of unnamed parties or to any other indicia of class
action status. Rather, the state court describes the case as simply
"a proceeding for writ of mandate brought by three ex-felons to
compel respondent election officials to register them as voters." 9
Cal. 3d at 201, 507 P.2d at 1346. The opinion proceeds to list the
three plaintiffs and, in a footnote, to explain that the only other
plaintiffs were the League of Women Voters and three nonprofit
organizations which support the interests of ex-felons. The opinion
describes the defendants as the election officials of San Luis
Obispo, Monterey, and Stanislaus Counties and the Secretary of
State "in his capacity [as] chief elections officer of California,"
and notes that, "[u]pon application, we ordered the Mendocino
County clerk [the petitioner here] joined as an additional party
[defendant]." Id. at 202 n. 1, 507 P.2d at 1346 � 1. This
description of the parties Page 418 U. S. 65 plainly indicates that this suit was not treated as a class
action by the state court. I think it highly inappropriate that, on
the basis of nothing but speculation, this case be fashioned into a
class action, for the first time, in this Court. C Even assuming that this case is a class action, I still would
not agree that it is properly before us. I do not believe that we
can look beyond the named class members to find a case or
controversy in the circumstances of this case. The Court seems to
hold that review is not foreclosed by the possible mootness of the
named plaintiffs' claim because, but for the California Supreme
Court's decision, unnamed class members would still be subject to
the challenged disenfranchisement, hence the case presents, as to
unnamed class members, an issue capable of repetition, yet evading
review. I disagree. As the Court properly notes, a general rule of
justiciability is that one may not represent a class of which he is
not a part. Thus, as a general proposition, a federal court will
not look to unnamed class members to establish the case or
controversy requirement of Art. III. [ Footnote 2/8 ] But the "evading review" doctrine of Southern Pacific Terminal Co. v. ICC, 219 U.
S. 498 , 219 U. S. 515 (1911), as recently applied in Dunn v. Blumstein, 405 U. S. 330 , 405 U. S. 333 n. 2 (1972), provides a limited exception to the general rule -- an
exception necessary to insure that judicial review is not
foreclosed in cases where intervening events threaten invariably to
moot the named plaintiff's claim for relief. Page 418 U. S. 66 The necessity for looking beyond the named class members in this
limited category of cases is evidenced by our decision in Dunn
v. Blumstein, supra, in which the Court struck down a
durational residence requirement for voting. The suit had been
brought to compel the registration of the named plaintiff and the
members of the class he represented in order that they might
participate in an election scheduled for August 6, 1970. The
Federal District Court did not order preliminary relief in time for
the August election and, by the time the District Court decided the
case, the next election was scheduled for November, 1970. By then,
the named plaintiff would have met the challenged three-month
requirement. The District Court, nonetheless, rejected the State's
argument that the controversy over the validity of the three-month
requirement was therefore moot.

															By the time the appeal reached this Court, the only named
plaintiff had also satisfied the one-year state residence
requirement. We nonetheless reached the merits, observing that,

															"[a]lthough appellee [the only named plaintiff] now can vote,
the problem to voters posed by the Tennessee residence requirements
is " capable of repetition, yet evading review.'" Moore v.
Ogilvie, 394 U. S. 814 , 394 U. S. 816 (1969)." 405 U.S. at 405 U. S. 333 n. 2. Both this Court and the District Court found that, although
the named plaintiff had satisfied the challenged residence
requirements and would no longer be disenfranchised thereby, the
case was not moot. The challenged requirement remained applicable
to unnamed class members, [ Footnote
2/9 ] and the Page 418 U. S. 67 issue presented was likely to evade review. Obviously the mere
passage of a few months would invariably have rendered a challenge
to the residence requirements by individual named plaintiffs moot
-- threatening virtually to foreclose judicial review.

															A similar situation was presented in Roe v. Wade, 410 U. S. 113 (1973), relied on by the California court. We there held that,
although a woman who was not pregnant at the time the suit was
filed did not have standing to challenge the constitutionality of
the Texas abortion laws, a continuing controversy over the
constitutionality of those laws existed as to a named plaintiff who
was pregnant when the suit was filed, even though she may not have
been pregnant at later stages of the appeal. We concluded that this
case provided a classic example of an issue capable of repetition,
yet evading review, hence the termination of the plaintiff's
pregnancy while the case was on appeal did not render the case moot
-- even though a woman whose pregnancy has ended is no more
affected by the abortion laws than one who was not pregnant at the
time the suit was filed.

															"[T]he . . . human gestation period is so short that . . .
pregnancy will come to term before the usual appellate process is
complete. If that termination makes a case moot, . . . appellate
review will be effectively denied." Id. at 410 U. S.
125 .

															There are two common threads running through these case -- in
each, the challenged statute would continue to be applied, but the
named plaintiff's claim would inevitably mature into mootness
pending resolution of the lawsuit. In Roe, the termination
of pregnancy, in Dunn, the passage of the residence
requirement period, and in other voting cases, the occurrence of an
election, [ Footnote 2/10 ]
deprived Page 418 U. S. 68 the named plaintiff of a continuing controversy over the
application of the challenged statute. In each instance, the mere
passage of time threatened to insulate a constitutional deprivation
from judicial review, and it is that danger which served as the
rationale for rejecting suggestions of mootness. Where an invalid
statute would thus continue to be applied simply because judicial
review of a live controversy involving the named plaintiff was
invariably foreclosed -- the issue would be capable of repetition
yet evading review.

															Accordingly, the Southern Pacific doctrine requires the
satisfaction of two tests in order to provide an answer to a
suggestion of mootness. First, the claimed deprivation must, in
fact, be "capable of repetition." This element is satisfied where,
even though the named plaintiff's immediate controversy has been
mooted by intervening events, either he or unnamed class members
may continue to suffer the alleged constitutional deprivation in
the future. The case before us clearly satisfies this first element
of the Southern Pacific doctrine test. Since the
California court declined to order any county clerk to Page 418 U. S. 69 register ex-felons, presumably the challenged disenfranchisement
provisions could continue to be applied to unnamed class members in
counties other than those in which the named plaintiffs reside.
[ Footnote 2/11 ]

															Second, the issue presented must be likely to evade review, but
for invocation of the Southern Pacific doctrine. It is on
the "evading review" element that the Court's analysis fails.
Because the claim raised in this case concerns not a time-related,
but rather a status-based deprivation, there is no issue evading
review, and no reason to look beyond the named plaintiffs.
[ Footnote 2/12 ] This is Page 418 U. S. 70 not a situation where, by the time a case reaches this Court, it
will always be too late to grant the named plaintiff relief. If and
when an ex-felon is refused access to the voting rolls because of
his past criminal record, an intervening election will not moot his
claim for relief, and the status giving rise to his
disenfranchisement will not inevitably terminate pending
review.

															There are clearly ways in which a challenge to the California
disenfranchisement provisions could reach this Court. The
California Supreme Court has not issued a writ of mandate
compelling the registration of any ex-felon. [ Footnote 2/13 ] If such a potential voter is, in
fact, refused registration, a controversy suitable for resolution
by this Court will be presented. The suit brought against
petitioner Richardson, by an ex-felon resident of her own county,
raising the same issues as those presented by this case, is
presently pending in a California intermediate appellate court.
[ Footnote 2/14 ] In that case,
petitioner Richardson did, in fact, deny the plaintiff registration
because he was an ex-felon. Once that case completes its passage
through the state courts, it could well serve as a vehicle for our
review of the California disenfranchisement provisions. Page 418 U. S. 71 That is, of course, but one example of how the issue presented
here could properly reach this Court. This case does not therefore
benefit from the Southern Pacific doctrine's authority to
look to unnamed class members to establish a case or
controversy.

															That the California Supreme Court appears to have found the
plaintiffs' claims not to be moot does not detract from this
conclusion, since,

															"[e]ven in cases arising in the state courts, the question of
mootness is a federal one which a federal court must resolve before
it assumes jurisdiction." North Carolina v. Rice, 404 U.
S. 244 , 404 U. S. 246 (1971). Thus, unlike the Court, I am persuaded that we can look
only to the named plaintiffs to satisfy the case or controversy
requirement of Art. III. D The named plaintiffs here were registered only because the
clerks in their counties had voluntarily abandoned an allegedly
illegal practice of disenfranchising ex-felons, and we have said
that

															"[m]ere voluntary cessation of allegedly illegal conduct does
not moot a case; if it did, the courts would be compelled to leave
'[t]he defendant . . . free to return to his old ways.' . . . [But
a] case might become moot if subsequent events made it absolutely
clear that the allegedly wrongful behavior could not reasonably be
expected to recur." United States v. Concentrated Phosphate Export Assn., 393 U. S. 199 , 393 U. S. 203 (1968); accord, United States v. W. T. Grant Co., 345 U. S. 629 , 345 U. S. 632 (1953). Accordingly, whether the named plaintiffs have a live
controversy with the clerks in their own counties would depend on
the likelihood of future disenfranchisement. [ Footnote 2/15 ] But we need not consider that
question here because Page 418 U. S. 72 none of the election officials in the named plaintiffs' counties
sought review in this Court, and none is now before us.

															The sole petitioner before this Court is Viola Richardson. None
of the named plaintiffs are residents of her county. While those
named plaintiffs may or may not have a live controversy with the
clerks in their own counties, they surely do not have one with
petitioner Richardson. While Richardson may well have a live
controversy with ex-felons in her own county over the validity of
the disenfranchisement laws, those ex-felons are not before this
Court, and she has no dispute with the named plaintiffs. In sum,
there is no controversy between the parties before this Court.
Petitioner Richardson seeks to use the named plaintiffs'
controversy with their own county clerks as a vehicle for this
Court to issue an advisory opinion on the issue presented by the
suit brought against her by an ex-felon in her own county. Such a
decision would violate the " oldest and most consistent thread
in the federal law of justiciability . . . that the federal courts
will not give advisory opinions.'" Flast v. Cohen, 392 U. S. 83 , 392 U. S. 96 (1968). II Since the Court nevertheless reaches the merits of the
constitutionality of California's disenfranchisement of ex-felons,
I find it necessary to register my dissent on the merits as well.
The Court construes § 2 of the Fourteenth Amendment as an express
authorization for the States to disenfranchise former felons.
Section 2 does except disenfranchisement for "participation in
rebellion, or other crime" from the operation of its penalty
provision. As the Court notes, however, there is little independent
legislative history as to the crucial words "or Page 418 U. S. 73 other crime"; the proposed § 2 went to a joint committee
containing only the phrase "participation in rebellion" and emerged
with "or other crime" inexplicably tacked on. [ Footnote 2/16 ] In its exhaustive review of the
lengthy legislative history of the Fourteenth Amendment, the Court
has come upon only one explanatory reference for the "other crimes"
provision -- a reference which is unilluminating, at best.
[ Footnote 2/17 ]

															The historical purpose for § 2 itself is, however, relatively
clear and, in my view, dispositive of this case. The Republicans
who controlled the 39th Congress were concerned that the additional
congressional representation of the Southern States which would
result from the abolition of slavery might weaken their own
political dominance. [ Footnote
2/18 ] There were two alternatives available -- either to limit
southern representation, which was unacceptable on a long-term
basis, [ Footnote 2/19 ] or to
insure that southern Negroes, sympathetic to the Republican cause,
would be enfranchised; but an explicit grant of suffrage to Negroes
was thought politically unpalatable at the time. [ Footnote 2/20 ] Section 2 of the Fourteenth
Amendment was the resultant com Page 418 U. S. 74 promise. It put Southern States to a choice -- enfranchise Negro
voters or lose congressional representation. [ Footnote 2/21 ]

															The political motivation behind § 2 was a limited one. It had
little to do with the purposes of the rest of the Fourteenth
Amendment. As one noted commentator explained:

															"'It became a part of the Fourteenth Amendment largely through
the accident of political exigency, rather than through the
relation which it bore to the other sections of the Amendment.'
[ Footnote 2/22 ]"

															"[I]t seems quite impossible to conclude that there was a clear
and deliberate understanding in the House that § 2 was the sole
source of national authority to protect voting rights, or that it
expressly recognized the states' power to deny or abridge the right
to vote. [ Footnote 2/23 ]"

															It is clear that § 2 was not intended, and should not be
construed, to be a limitation on the other sections of the
Fourteenth Amendment. Section 2 provides a special remedy --
reduced representation -- to cure a particular form of electoral
abuse -- the disenfranchisement of Negroes. There is no indication
that the framers of the provisions intended that special penalty to
be the exclusive remedy for all forms of electoral discrimination.
This Court has repeatedly rejected that rationale. See Reynolds
v. Sims, 377 U. S. 533 (1964); Carrington v. Rash, 380 U. S.
89 (1965).

															Rather, a discrimination to which the penalty provision of § 2
is inapplicable must still be judged against the Equal Protection
Clause of § 1 to determine whether judicial or congressional
remedies should be invoked. Page 418 U. S. 75 That conclusion is compelled by this Court's holding in Oregon v. Mitchell, 400 U. S. 112 (1970). Although § 2 excepts from its terms denial of the franchise
not only to ex-felons, but also to persons under 21 years of age,
we held that the Congress, under § 5, had the power to implement
the Equal Protection Clause by lowering the voting age to 18 in
federal elections. As MR. JUSTICE BRENNAN, joined by MR. JUSTICE
WHITE, as well as myself, there observed, § 2 was intended as no
more

															"than a remedy supplementary, and in some conceivable
circumstances indispensable, to other congressional and judicial
remedies available under §§ 1 and 5."

															400 U.S. at 400 U. S.
278 .

															The Court's references to congressional enactments
contemporaneous to the adoption of the Fourteenth Amendment, such
as the Reconstruction Act and the readmission statutes, are
inapposite. They do not explain the purpose for the adoption of § 2
of the Fourteenth Amendment. They merely indicate that
disenfranchisement for participation in crime was not uncommon in
the States at the time of the adoption of the Amendment. Hence, not
surprisingly, that form of disenfranchisement was excepted from the
application of the special penalty provision of § 2. But because
Congress chose to exempt one form of electoral discrimination from
the reduction of representation remedy provided by § 2 does not
necessarily imply congressional approval of this
disenfranchisement. [ Footnote
2/24 ] By providing a special remedy for disenfranchisement Page 418 U. S. 76 of a particular class of voters in § 2, Congress did not approve
all election discriminations to which the § 2 remedy was
inapplicable, and such discriminations thus are not forever
immunized from evolving standards of equal protection scrutiny. Cf. Shapiro v. Thompson, 394 U. S. 618 , 394 U. S.
638 -639 (1969). There is no basis for concluding that
Congress intended by § 2 to freeze the meaning of other clauses of
the Fourteenth Amendment to the conception of voting rights
prevalent at the time of the adoption of the Amendment. In fact,
one form of disenfranchisement -- one-year durational residence
requirements -- specifically authorized by the Reconstruction Act,
one of the contemporaneous enactments upon which the Court relies
to show the intendment of the framers of the Fourteenth Amendment,
has already been declared unconstitutional by this Court in Dunn v. Blumstein, 405 U. S. 330 (1972).

															Disenfranchisement for participation in crime, like durational
residence requirements, was common at the time of the adoption of
the Fourteenth Amendment. But "constitutional concepts of equal
protection are not immutably frozen like insects trapped in
Devonian amber." Dillenburg v. Kramer, 469 F.2d 1222, 1226
(CA9 1972). We have repeatedly observed:

															"[T]he Equal Protection Clause is not shackled to the political
theory of a particular era. In determining what lines are
unconstitutionally discriminatory, we have never been confined to
historic notions of equality, any more than we have restricted due
process to a fixed catalogue of what was at a given time deemed Page 418 U. S. 77 to be the limits of fundamental rights." Harper v. Virginia Board of Elections, 383 U.
S. 663 , 383 U. S. 669 (1966). Accordingly, neither the fact that several States had
ex-felon disenfranchisement laws at the time of the adoption of the
Fourteenth Amendment nor that such disenfranchisement was
specifically excepted from the special remedy of § 2 can serve to
insulate such disenfranchisement from equal protection
scrutiny. III In my view, the disenfranchisement of ex-felons must be measured
against the requirements of the Equal Protection Clause of § 1 of
the Fourteenth Amendment. That analysis properly begins with the
observation that, because the right to vote "is of the essence of a
democratic society, and any restrictions on that right strike at
the heart of representative government," Reynolds v. Sims, 377 U.S. at 377 U. S. 655 ,
voting is a "fundamental" right. As we observed in Dunn v.
Blumstein, supra, at 405 U. S.
336 :

															"There is no need to repeat now the labors undertaken in earlier
cases to analyze [the] right to vote and to explain in detail the
judicial role in reviewing state statutes that selectively
distribute the franchise. In decision after decision, this Court
has made clear that a citizen has a constitutionally protected
right to participate in elections on an equal basis with other
citizens in the jurisdiction. See, e.g., Evans v. Cornman, 398 U. S.
419 , 398 U. S. 421 -422, 426
(1970); Kramer v. Union Free School District, 395 U. S.
621 , 395 U. S. 626 -628 (1969); Cipriano v. City of Houma, 395 U. S.
701 , 395 U. S. 706 (1969); Harper v. Virginia Board of Elections, 383 U. S.
663 , 383 U. S. 667 (1966); Carrington v. Rash, 380 U. S. 89 , 380 U. S.
93 -94 (1965); Reynolds v. Sims, supra. " Page 418 U. S. 78 We concluded:

															"[I]f a challenged statute grants the right to vote to some
citizens and denies the franchise to others, 'the Court must
determine whether the exclusions are necessary to promote
a compelling state interest.'"

															405 U.S. at 405 U. S. 337 (Emphasis in original.)

															To determine that the compelling state interest test applies to
the challenged classification is, however, to settle only a
threshold question. "Compelling state interest" is merely a
shorthand description of the difficult process of balancing
individual and state interests that the Court must embark upon when
faced with a classification touching on fundamental rights. Our
other equal protection cases give content to the nature of that
balance. The State has the heavy burden of showing, first, that the
challenged disenfranchisement is necessary to a legitimate and
substantial state interest; second, that the classification is
drawn with precision -- that it does not exclude too many people
who should not and need not be excluded; and, third, that there are
no other reasonable ways to achieve the State's goal with a lesser
burden on the constitutionally protected interest. E.g., Dunn
v. Blumstein, supra, at 405 U. S. 343 , 405 U. S. 360 ; Kramer v. Union Free School District, 395 U.
S. 621 , 395 U. S. 632 (1969); see Rosario v. Rockefeller, 410 U.
S. 752 , 410 U. S. 770 (1973) (POWELL, J., dissenting); cf. Memorial Hospital v.
Maricopa County, 415 U. S. 250 (1974); NAACP v. Button, 371 U. S. 415 438
(1963); Shelton v. Tucker, 364 U.
S. 479 , 364 U. S. 488 (1960)

															I think it clear that the State has not met its burden of
justifying the blanket disenfranchisement of former felons
presented by this case. There is certainly no basis for asserting
that ex-felons have any less interest in the democratic process
than any other citizen. Like everyone else, their daily lives are
deeply affected and changed by the decisions of government. See
Kramer, supra, at 395 U. S. 627 .
As the Secretary of State of California observed in his Page 418 U. S. 79 memorandum to the Court in support of respondents in this
case:

															"It is doubtful . . . whether the state can demonstrate either a
compelling or rational policy interest in denying former felons the
right to vote. The individuals involved in the present case are
persons who have fully paid their debt to society. They are as much
affected by the actions of government as any other citizens, and
have as much of a right to participate in governmental
decisionmaking. Furthermore, the denial of the right to vote to
such persons is a hindrance to the efforts of society to
rehabilitate former felons and convert them into law-abiding and
productive citizens. [ Footnote
2/25 ]"

															It is argued that disenfranchisement is necessary to prevent
vote frauds. Although the State has a legitimate, and, in fact,
compelling interest in preventing election fraud, the challenged
provision is not sustainable on that ground. First, the
disenfranchisement provisions are patently both overinclusive and
underinclusive. The provision is not limited to those who have
demonstrated a marked propensity for abusing the ballot by
violating election laws. Rather, it encompasses all former felons,
and there has been no showing that ex-felons generally are any more
likely to abuse the ballot than the remainder of the population. See Dillenburg v. Kramer, 469 F.2d at 1225. In contrast,
many of those convicted of violating election laws are treated as
misdemeanants, and are not barred from voting at all. It seems
clear that the classification here is not tailored to achieve its
articulated goal, since it crudely excludes large numbers of
otherwise qualified voters. See Kramer v. Union Free Page 418 U. S. 80 School District, supra, at 395 U. S. 632 ; Cipriano v. City of Houma, 395 U.
S. 701 , 395 U. S. 706 (1969).

															Moreover, there are means available for the State to prevent
voting fraud which are far less burdensome on the constitutionally
protected right to vote. As we said in Dunn, supra, at 405 U. S. 353 ,
the State "has at its disposal a variety of criminal laws that are
more than adequate to detect and deter whatever fraud may be
feared." Cf. Harman v. Forssenius, 380 U.
S. 528 , 380 U. S. 543 (1965); Schneider v. State, 308 U.
S. 147 , 308 U. S. 164 (1939). The California court's catalogue of that State's penal
sanctions for election fraud surely demonstrates that there are
adequate alternatives to disenfranchisement.

															"Today . . . the Elections Code punishes at least 76 different
acts as felonies, in 33 separate sections; at least 60 additional
acts are punished as misdemeanors, in 40 separate sections; and 14
more acts are declared to be felony-misdemeanors. Among this
plethora of offenses, we take particular note, in the present
connection, of the felony sanctions against fraudulent
registrations (§ 220), buying and selling of votes (§§
12000-12008), intimidating voters by threat or bribery (§§
29130-29135), voting twice, or fraudulently voting without being
entitled to do so, or impersonating another voter (§§ 14403,
29430-29431), fraud or forgery in casting absentee ballots (§§
14690-14692), tampering with voting machines (§ 15280) or ballot
boxes (§§ 17090-17092), forging or altering election returns (§§
29100-29103), and so interfering 'with the officers holding an
election or conducting a canvass, or with the voters lawfully
exercising their rights of voting at an election, as to prevent the
election or canvass from being fairly held and lawfully conducted'
(§ 17093)."

															9 Cal.3d at Page 418 U. S. 81 215-216, 507 P.2d at 1355-1356 (1973) (footnotes omitted). Given
the panoply of criminal offenses available to deter and to punish
electoral misconduct, as well as the statutory reforms and
technological changes which have transformed the electoral process
in the last century, election fraud may no longer be a serious
danger. [ Footnote 2/26 ]

															Another asserted purpose is to keep former felons from voting
because their likely voting pattern might be subversive of the
interests of an orderly society. See Green v. Board of
Elections, 380 F.2d 445, 451 (CA2 1967). Support for the
argument that electors can be kept from the ballot box for fear
they might vote to repeal or emasculate provisions of the criminal
code is drawn primarily from this Court's decisions in Murphy
v. Ramsey, 114 U. S. 15 (1885), and Davis v. Beason, 133 U.
S. 333 (1890). In Murphy, the Court upheld the
disenfranchisement of anyone who had ever entered into a bigamous
or polygamous marriage, and in Davis, the Court
sanctioned, as a condition to the exercise of franchise, the
requirement of an oath that the elector did not "teach, advise,
counsel or encourage any person to commit the crime of bigamy or
polygamy." The Court's intent was clear -- "to withdraw all
political influence from those who are practically hostile to" the
goals of certain criminal laws. Murphy, supra, at 114 U. S. 45 ; Davis, supra, at 133 U. S.
348 .

															To the extent Murphy and Davis approve the
doctrine that citizens can be barred from the ballot box because
they would vote to change the existing criminal law, those
decisions are surely of minimal continuing precedential value. We
have since explicitly held that such "differences of opinion cannot
justify excluding [any] group Page 418 U. S. 82 from . . . the franchise,'" Cipriano v. City of
Houma, 395 U.S. at 395 U. S.
705 -706; see Communist Party of Indiana v.
Whitcomb, 414 U. S. 441 (1974); Evans v. Cornman, 398 U.
S. 419 , 398 U. S. 423 (1970). "[I]f they are . . . residents, . . . they, as all other
qualified residents, have a right to an equal opportunity for
political representation. . . . 'Fencing out' from the franchise a
sector of the population because of the way they may vote is
constitutionally impermissible." Carrington v. Rash, 380 U.S. at 380 U. S. 94 . See Dunn, 405 U.S. at 405 U. S.
355 .

															Although, in the last century, this Court may have justified the
exclusion of voters from the electoral process for fear that they
would vote to change laws considered important by a temporal
majority, I have little doubt that we would not countenance such a
purpose today. The process of democracy is one of change. Our laws
are not frozen into immutable form; they are constantly in the
process of revision in response to the needs of a changing society.
The public interest, as conceived by a majority of the voting
public, is constantly undergoing reexamination. This Court's
holding in Davis, supra, and Murphy, supra, that
a State may disenfranchise a class of voters to "withdraw all
political influence from those who are practically hostile" to the
existing order, strikes at the very heart of the democratic
process. A temporal majority could use such a power to preserve
inviolate its view of the social order simply by disenfranchising
those with different views. Voters who opposed the repeal of
prohibition could have disenfranchised those who advocated repeal
"to prevent persons from being enabled by their votes to defeat the
criminal laws of the country." Davis, supra, at 133 U. S. 348 .
Today, presumably those who support the legalization of marihuana
could be barred Page 418 U. S. 83 from the ballot box for much the same reason. The ballot is the
democratic system's coin of the realm. To condition its exercise on
support of the established order is to debase that currency beyond
recognition. Rather than resurrect Davis and Murphy, I would expressly disavow any continued adherence
to the dangerous notions therein expressed. [ Footnote 2/27 ]

															The public purposes asserted to be served by disenfranchisement
have been found wanting in many quarters. When this suit was filed,
23 States allowed ex-felons full access to the ballot. Since that
time, four more States have joined their rank. [ Footnote 2/28 ] Shortly after lower federal Page 418 U. S. 84 courts sustained New York's and Florida's disenfranchisement
provisions, the legislatures repealed those laws. Congress has
recently provided for the restoration of felons' voting rights at
the end of sentence or parole in the District of Columbia. D.C.Code
§ 1-1102(7) (1973). The National Conference on Uniform State Page 418 U. S. 85 Laws, [ Footnote 2/29 ] the
American Law Institute, [ Footnote
2/30 ] the National Probation and Parole Association, [ Footnote 2/31 ] the National Advisory
Commission on Criminal Justice Standards and Goals, [ Footnote 2/32 ] the President's Commission
on Law Enforcement and the Administration of Justice, [ Footnote 2/33 ] the California League of
Women Voters, [ Footnote 2/34 ] the
National Democratic Party, [ Footnote
2/35 ] and the Secretary of State of California [ Footnote 2/36 ] have all strongly endorsed
full suffrage rights for former felons.

															The disenfranchisement of ex-felons had

															"its origin in the fogs and fictions of feudal jurisprudence
and Page 418 U. S. 86 doubtless has been brought forward into modern statutes without
fully realizing either the effect of its literal significance or
the extent of its infringement upon the spirit of our system of
government." Byers v. Sun Savings Bank, 41 Okla.
728 , 731, 139 P. 948, 949 (1914). I think it clear that,
measured against the standards of this Court's modern equal
protection jurisprudence, the blanket disenfranchisement of
ex-felons cannot stand.

															I respectfully dissent.

															MR. JUSTICE DOUGLAS, agreeing with Part I-A of this opinion,
dissents from a reversal of the judgment below, as he cannot say
that it does not rest on an independent state ground. See
Hayakawa v. Brown, 415 U. S. 1304 (DOUGLAS, J., in chambers).

															[ Footnote 2/1 ]

															The proceeding below was a petition for a writ of mandate in the
California Supreme Court, hence the moving parties should properly
be described as petitioners, rather than plaintiffs. However, to
avoid confusion, since the petitioners below are the respondents
here and vice versa, the parties in the California court will be
referred to herein simply as plaintiffs and defendants.

															[ Footnote 2/2 ]

															California Const., Art. II, § 1, provided, in part, that "no
person convicted of any infamous crime . . . shall ever exercise
the privileges of an elector in this State." Article II, § 1, was
repealed by referendum at the November 7, 1972, general election
and was replaced by a new Art. II, § 3, containing the same
prohibition. The state implementing statutes include California
Elections Code §§ 310, 321, 383, 389, 390, and 14240.

															[ Footnote 2/3 ]

															The Attorney General filed a separate petition for certiorari,
No. 73-324, to review the judgment of the California Supreme Court.
The Secretary of State filed a memorandum opposing that petition
for certiorari. The petition was denied today, post, p.
904.

															[ Footnote 2/4 ]

															The judgment of the California Supreme Court is, by custom, the
final paragraph of its opinion. The alternative writ referred to is
merely a show cause order, requiring the respondent to comply with
the petitioner's demand or show cause why it should not be ordered
to do so.

															[ Footnote 2/5 ] See 5 B. Witkin, Cal.Proc.2d Extraordinary Writs § 22,
pp. 3796-3797, and § 123, p. 3899 (1971).

															[ Footnote 2/6 ]

															Calif.Code Civ.Proc. § 1060; see 15 Cal.Jur.2d
Declaratory Relief § 13; 3 B. Witkin, Cal.Proc.2d Pleading §
705(c), p. 2329 (1971); see, e.g., Dills v. Delira
Corp., 145 Cal. App.
2d 124 , 129, 302 P.2d 397, 400 (1956).

															The difference between "mandamus and declaratory relief [is]
that appellate courts cannot give the latter." 5 B. Witkin,
Cal.Proc.2d Extraordinary Writs § 21, p. 3796 (1971).

															[ Footnote 2/7 ]

															In the first case relied on by the majority, In re William
M., 3 Cal. 3d 16 ,
473 P.2d 737 (1970), the California Supreme Court had previously
granted a writ of habeas corpus which effectively mooted the
petitioner's claim for relief. The court, nonetheless, later issued
an opinion on the issue posed by the case while denying further
relief. In a footnote, the court observed that, as a general
proposition, courts should avoid advisory opinions, but, in the
very next sentence, reaffirmed its inherent discretion to issue
such opinions. In the accompanying text, the court noted that it
could render a decision in a moot case which would not be binding
on a party before it, where the case involved issues of particular
public importance. Although the court referred to its "declaratory
use of habeas corpus in a number of cases," citing B. Witkin,
Cal.Crim.Proc. § 790 (1963), and In re
Fluery, 67 Cal. 2d
600 , 432 P.2d 96 (1967), the Witkin treatise refers to the
court's "declaratory use of habeas corpus" and In re Fluery,
supra, in particular, as examples of the "use of the writ to
render a purely advisory opinion unnecessary to the determination
of the particular controversy." B. Witkin, Cal.Crim.Proc., Habeas
Corpus and Other Extraordinary Writs § 790, p. 247 (Supp.
1967).

															The second case relied on by the majority is Young v.
Gnoss, 7 Cal. 3d 18 ,
496 P.2d 445 (1972), cited by the court below solely for the
proposition that mandamus is an appropriate remedy to seek in an
original proceeding. In that case, the petitioners had sought
mandamus relief from the application of a state durational
residence requirement for voting in order that they might vote in a
June primary. The California Supreme Court, in a lengthy opinion,
indicated that the challenged requirement was unconstitutional on
the authority of our decision in Dunn v. Blumstein, 405 U. S. 330 (1972), but exercised its equitable discretion not to order a
change in the residence requirements for the June primary because
too little time remained for such a change to be implemented in an
orderly fashion. Accordingly, mandamus relief was denied. The court
recommended that the necessary changes in residence requirements be
effected before the November election, but did not so order, to
give the "Legislature the opportunity to address itself to the
problem. . . ." 7 Cal. 3d at 28, 496 P.2d at 452-453. The court
relied on its earlier decision in Legislature v.
Reinecke, 6 Cal. 3d 595 ,
492 P.2d 385 (1972), where the court had expressed its views on a
legislative reapportionment problem, denied a writ of mandate, and
retained jurisdiction to allow the legislature an opportunity to
act before providing any judicial relief.

															Each of these cases involves examples of advisory opinions,
rather than declaratory relief. In the latter, what the California
Supreme Court did was to provide some guidance to the legislature
while staying its hand and not affording judicial relief for the
claimed deprivation. It seems well settled that California courts
have "inherent discretion" to issue such advisory opinions. See 2 B. Witkin, Cal.Proc.2d Actions § 44, p. 920 (1970); id. § 42, p. 916; 5 B. Witkin, Cal.Proc.2d Extraordinary
Writs § 117, p. 3894; cf. Kirstowsky v. Superior
Court, 143 Cal. App.
2d 745 , 749, 300 P.2d 163, 166 (1956).

															[ Footnote 2/8 ]

															The Court has held, for example, that Art. III restricts
standing to bring a class action to the actual members of the
class. O'Shea v. Littleton, 414 U.
S. 488 (1974). The named plaintiffs here had been
disenfranchised at the time they filed suit, and there is thus no
question concerning their standing to challenge the California
disenfranchisement provisions.

															[ Footnote 2/9 ]

															The Court distinguished its decision in Hall v. Beals, 396 U. S. 45 (1969), finding a challenge to Colorado's durational residence
requirement moot, on the grounds that, in Hall, there had
been an intervening change in law reducing the residence
requirements from six months to two while the case was on appeal.
Accordingly, application of the six-month requirement was incapable
of repetition as to the named plaintiff or any other member of his
class, and, having never been disenfranchised thereby, the named
plaintiff had no standing to challenge the two-month
requirement.

															[ Footnote 2/10 ]

															The Court has found a live controversy in other voting cases in
which intervening circumstances seemed to have mooted the named
plaintiff's claim for relief. Moore v. Ogilvie, 394 U. S. 814 (1969), for example, was an appeal from a decision denying relief
to appellants who had unsuccessfully sought to be certified, as
required by state law, as independent candidates for Presidential
elector on the 1968 ballot. Appellants asserted that the Illinois
certification requirement violated the State's constitutional
obligation not to discriminate against voters in less populous
counties. By the time their appeal reached this Court, the 1968
election had already taken place, but we held the case was not moot
because, "while the 1968 election is over, [the challenged burden]
remains, and controls future elections . . . ," id. at 394 U. S. 816 ; see Hall v. Beals, supra, at 396 U. S. 49 ,
and the short span of time between the denial of certification for
candidacy and actual balloting threatens to moot all future attacks
on the questioned candidacy requirements. 394 U.S. at 394 U. S. 816 . See also Storer v. Brown, 415 U.
S. 724 , 415 U. S. 737 n. 8 (1974); Rosario v. Rockefeller, 410 U.
S. 752 , 410 U. S. 756 n. 5 (1973).

															[ Footnote 2/11 ]

															The extent of continuing disenfranchisement is apt to be
minimal. A survey conducted by the Secretary of State of California
indicated that the election officials of 52 of the 58 counties in
California, representing counties which contain 97.39% of the
registered voters in the State, agreed with the clerks in the named
plaintiffs' counties that ex-felons should not be barred from
voting in their counties. Brief for Respondents 30.

															[ Footnote 2/12 ]

															The Court's opinion cites our decision in Indiana Employment
Security Div. v. Burney, 409 U. S. 540 (1973), for the proposition that unnamed class members may not be
looked to in cases arising from the federal system, but the case
does not support that proposition. Burney concerned a
constitutional challenge to the termination of unemployment
insurance benefits without a prior hearing. The only named class
representative received a post-termination hearing at which she
obtained a reversal of the initial determination of ineligiblity
and full retroactive benefits. The Court remanded for consideration
of mootness. The jurisdictional issue in this Court revolved around
whether the case presented issues "capable of repetition, yet
evading review." The Court did not have to find the alleged
constitutional deprivation incapable of repetition, hence was not
concerned with the problem of whether a future application to the
named class representative was required. Rather, it appeared that
the prior hearing issue was not one which would evade review. But see id. at 409 U. S.
542 -546 (dissenting opinion). The Court reasoned that a
post-termination hearing, afforded as a matter of course, would not
invariably moot all claims for relief from members of the class. If
the post-termination hearing did not result in an award of
retroactive payments, as it had in the named plaintiff's case, a
live and continuing controversy would be presented as to the
insured's claim to the benefits allegedly wrongfully withheld
pending the hearing. A case had already come to this Court in just
such a posture, and the Court had summarily affirmed the judgment
of the three-judge court. Torres v. New York State Department
of Labor, 405 U.S. 949 (1972), but see 410 U.
S. 971 (1973) (dissenting opinion to denial of
rehearing). It was a failure to satisfy the "evading review"
element of the test that led the Court to remand Burney for consideration of mootness.

															[ Footnote 2/13 ]

															In the absence of such an order, petitioner Richardson is under
no compulsion to register ex-felons in her county nor subject to
any penalty for failing to do so. See Cal.Code Civ.Proc. §
1097 (1955).

															[ Footnote 2/14 ]

															The suit against petitioner, Richardson v. James, 1
Civ. 32283 is presently pending in Division 3 of the Court of
Appeal for the First Appellate District of California.

															[ Footnote 2/15 ]

															If claims of the named plaintiffs are moot, the proper
disposition of this case would seem to be to vacate the judgment of
the California Supreme Court and remand for such proceedings as
that court deems appropriate. Brockington v. Rhodes, 396 U. S. 41 , 396 U. S. 44 (1969).

															[ Footnote 2/16 ] See, e.g., Note, Restoring the Ex-offender's Right to
Vote: Background and Developments, 11 Am.Crim.L.Rev. 721, 746-747,
n. 158 (1973).

															[ Footnote 2/17 ]

															Statement of Rep. Eckley, quoted, ante at 418 U. S.
46 .

															[ Footnote 2/18 ]

															Bonfield, The Right to Vote and Judicial Enforcement of Section
Two of the Fourteenth Amendment, 46 Cornell L.Q. 108, 109 (1960);
H. Flack, The Adoption of the Fourteenth Amendment 98, 126 (1908);
B. Kendrick, Journal of the Joint Committee of Fifteen on
Reconstruction 290-291 (1914); J. James, The Framing of the
Fourteenth Amendment 185 (1956); Van Alstyne, The Fourteenth
Amendment, the "Right" to Vote, and the Understanding of the
Thirty-ninth Congress, 1965 Sup.Ct.Rev. 33, 44 (1965).

															[ Footnote 2/19 ]

															James, 418 U.S.
24 fn2/18|>n. 18, supra, at 138-139.

															[ Footnote 2/20 ]

															Kendrick, 418 U.S.
24 fn2/18|>n. 18, supra, at 291; cf. Flack, 418 U.S.
24 fn2/18|>n. 18, supra at 111, 118.

															[ Footnote 2/21 ]

															Bonfield, 418 U.S.
24 fn2/18|>n. 18, supra, at 111; James, 418 U.S.
24 fn2/18|>n. 18, supra, at 185; Van Alstyne, 418 U.S.
24 fn2/18|>n. 18, supra at 43-44, 58, 65.

															[ Footnote 2/22 ] Id. at 43-44 (quoting from Mathews, Legislative and
Judicial History of the Fifteenth Amendment (1909)).

															[ Footnote 2/23 ] Id. at 65

															[ Footnote 2/24 ]

															To say that § 2 of the Fourteenth Amendment is a direct
limitation on the protection afforded voting rights by § 1 leads to
absurd results. If one accepts the premise that § 2 authorizes
disenfranchisement for any crime, the challenged California
provision could, as the California Supreme Court has observed,
require disenfranchisement for seduction under promise of marriage,
or conspiracy to operate a motor vehicle without a muffler. Otsuka v. Hite, 64 Cal. 2d
596 , 414 P.2d 412 (1966). Disenfranchisement extends to
convictions for vagrancy in Alabama or breaking a water pipe in
North Dakota, to note but two examples. Note, Disenfranchisement of
Ex-felons: A Reassessment, 25 Stan.L.Rev. 845, 846 (1973). Even a
jaywalking or traffic conviction could conceivably lead to
disenfranchisement, since § 2 does not differentiate between
felonies and misdemeanors.

															[ Footnote 2/25 ]

															Memorandum of the Secretary of State of California in Opposition
to Certiorari, in Class of County Clerks and Registrars of
Voters of California v. Ramirez, No. 73-324.

															[ Footnote 2/26 ] Ramirez v. Brown, 9 Cal. 3d 199 ,
215-216, 507 P.2d 1345, 1355-1356 (1973).

															[ Footnote 2/27 ]

															The Court also notes that the disenfranchisement of ex-felons
has received support in the dicta of this Court, and that we have
only recently affirmed without opinion the decisions of two
three-judge District Courts upholding disenfranchisement
provisions. Fincher v. Scott, 352 F.
Supp. 117 (MDNC 1972), aff'd mem., 411 U.S. 961
(1973); Beacham v. Braterman, 300 F.
Supp. 182 (SD Fla.), aff'd per curiam, 396 U. S.
12 (1969). But dictum is not precedent, and, as MR.
JUSTICE REHNQUIST has only recently reminded us, summary
affirmances are obviously not of the same precedential value as
would be an opinion of this Court treating the question on the
merits. Edelman v. Jordan, 415 U.
S. 651 , 415 U. S. 671 (1974). See F. Frankfurter & J. Landis, The Business
of the Supreme Court at October Term, 1929, 44 Harv.L.Rev. 1, 14
(1930).

															[ Footnote 2/28 ]

															The following States do not disenfranchise all former felons:
Arkansas, Ark.Stat.Ann. § 3-707 (Supp. 1973); Colorado,
Colo.Const., Art. VII, § 10, and Colo.Rev.Stat.Ann. § 49-3-2
(Perm.Cum.Supp. 1971); Florida, Fla.Stat.Ann. § 940.05 (1973);
Hawaii, Hawaii Rev.Stat. § 716-5 (Supp. 1972); Illinois,
Ill.Rev.Stat., c. 46, § 3-5 (1973); Indiana, Ind. Ann.Stat. §
29-4804 (1969); Kansas, Kan.Stat.Ann. § 22-3722 (Supp. 1973);
Maine, Me.Rev.Stat.Ann., Tit. 21, § 245 (1964); Massachusetts,
Mass.Gen.Laws Ann., c. 51, § 1 (Supp. 1974-1975) (except election
code offenders); Michigan, Mich.Const., Art. II, § 2, and
Mich.Comp.Laws Ann. § 168.10 (1970); Minnesota, Minn.Stat. §
609.165 (1971); Nebraska, Neb.Rev.Stat. § 29-2264 (Supp. 1972) and
Neb.Rev.Stat. § 83-1118 (1971); New Hampshire, N.H.Rev.Stat.Ann. §
607-A:2 (Supp. 1973); New Jersey, N.J.Stat.Ann. § 19:4-1 (Supp.
1974-1975) (except election code offenders); Ohio Rev.Code Ann. §
2967.16 (Supp. 1972); Oregon, Ore.Rev.Stat. §§ 137.240 and 137.250
(1973); Pennsylvania, Pa.Const., Art. VII, § 1, Pa.Stat.Ann.,
Tit.19, § 893 (1964), and Tit. 25, § 3552 (1963) (except election
code offenders for four years); South Dakota, S.D.Comp.Laws Ann. §§
24-5-2 and 23-57-7 (1969); Utah, Utah Const., Art. IV, § 6 (except
those convicted of treason or election code offenses); Vermont,
Vt.Const., c. II, § 51 (except election code offenders);
Washington, Wash.Rev.Code Ann. § 9.96.050 (Supp. 1972); West
Virginia, 51 Op.W.Va. Atty. Gen. No. 42, p. 182 (1965) (construing
W.Va.Const., Art. IV, § 1); Wisconsin, Wis.Stat.Ann. § 57-078
(Supp. 1974-1975); Wyoming, Wyo.Stat.Ann. § 7-311 (1957).

															In 1972, Montana amended its constitution to disenfranchise
potential electors only while "serving a sentence for a felony."
Mont.Const., Art. IV, § 2; Mont.Rev.Codes Ann. § 23-2701 (Supp.
1973). In 1973, New York amended its laws to allow former felons
whose sentence had expired or who were released from parole to
vote. N.Y.Election Law § 152 (Supp. 1973-1974). Also in 1973, North
Carolina amended its laws to restore all civil rights including the
franchise to former felons discharged from prison or parole.
N.C.Gen.Stat. § 13-1 (Supp. 1973). And, in the same year, the
Tennessee Legislature amended its ex-felon disenfranchisement
statutes. See Tenn.Code Ann. § 2-202 (Supp. 1973).

															The New York ex-felon disenfranchisement provision was upheld in Green v. Board of Elections, 380 F.2d 445 (CA2 1967), and,
shortly thereafter, the New York Legislature repealed that law.
N.Y.Election Law § 152 (Supp. 1973-1974). Similarly, the Florida
disenfranchisement provisions were upheld in Beacham v.
Braterman, 300 F.
Supp. 182 (SD Fla.), aff'd per curiam, 396 U. S.
12 (1969). Subsequently, Florida statutes were amended
to provide for the automatic restoration of all civil rights,
including the franchise, upon the completion of sentence or release
from parole or probation. Fla.Stat.Ann. § 940.05 (1973).

															[ Footnote 2/29 ]

															National Conference of Commissioners on Uniform State Laws,
Uniform Act on Status of Convicted Persons §§ 2-3 (1964).

															[ Footnote 2/30 ]

															American Law Institute, Model Penal Code § 306.3 (Proposed
Official Draft 1962).

															[ Footnote 2/31 ]

															National Probation and Parole Association, Standard Probation
and Parole Act §§ 12 and 27 (1955).

															[ Footnote 2/32 ]

															National Advisory Commission on Criminal Justice Standards and
Goals, Corrections, Standard 16.17, p. 592 (1973). The Report
observed:

															"Loss of citizenship rights -- [including] the right to vote . .
. -- inhibits reformative efforts. If correction is to reintegrate
an offender into free society, the offender must retain all
attributes of citizenship. In addition, his respect for law and the
legal system may well depend, in some measure, on his ability to
participate in that system. Mandatory denials of that participation
serve no legitimate public interest." Id. at 593.

															[ Footnote 2/33 ]

															President's Commission on Law Enforcement and the Administration
of Justice, Task Force Report: Corrections 89-90 (1967):

															"[T]here seems no justification for permanently depriving all
convicted felons of the vote. . . . [T]o be deprived of the right
to representation in a democratic society is an important symbol.
Moreover, rehabilitation might be furthered by encouraging
convicted persons to participate in society by exercising the
vote."

															[ Footnote 2/34 ]

															California League of Women Voters, Policy Statement, Feb. 16,
1972.

															[ Footnote 2/35 ]

															National Democratic Party, Party Platform 1972.

															[ Footnote 2/36 ]

															Memorandum of the Secretary of State of California in Opposition
to Certiorari in Class of County Clerks and Registrars of
Voters of California v. Ramirez, No. 73-324.