FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEBRA L. HARVEY and CATHERINE
M. BEDDARD,
Plaintiffs-Appellants,
v. No. 08-17253
JANICE K. BREWER, Governor; KEN D.C. No.
CV-08-17-TUC-
BENNETT, Secretary of State of
Arizona; and F. ANN RODRIGUEZ, FRZ
Pima County Recorder, in their
official capacities,
Defendants-Appellees.
ARMANDO CORONADO; JOSEPH
RUBIO; MICHAEL GARZA; MICHELE
CONVIE; and RAYMOND LEWIS,
Plaintiffs-Appellants,
v. No. 08-17567
D.C. No.
JANICE K. BREWER, Governor; KEN
BENNETT, Secretary of State of CV-07-1089-PHX-
Arizona; F. ANN RODRIGUEZ, Pima SMM
County Recorder; and HELEN OPINION
PURCELL, Maricopa County
Recorder, in their official
capacities,
Defendants-Appellees.
Appeals from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding (No. 08-17253)
Stephen M. McNamee, District Judge, Presiding
(No. 08-17567)
7655
7656 HARVEY v. BREWER
Argued and Submitted
October 19, 2009—Tempe, Arizona
Filed May 27, 2010
Before: Sandra Day O’Connor, Associate Justice,*
Alex Kozinski, Chief Judge, and Sandra S. Ikuta,
Circuit Judge.
Opinion by Associate Justice O’Connor
*The Honorable Sandra Day O’Connor, Associate Justice of the United
States Supreme Court (Ret.), sitting by designation pursuant to 28 U.S.C.
§ 294(a).
HARVEY v. BREWER 7659
COUNSEL
John R. Cosgrove, Menlo Park, California, for plaintiffs-
appellants Debra L. Harvey and Catherine M. Beddard.
Daniel Pochoda, American Civil Liberties Union of Arizona,
Phoenix, Arizona, for plaintiffs-appellants Armando Coro-
nado, Joseph Rubio, Michael Garza, Michele Convie, and
Raymond Lewis.
Laughlin McDonald, Neil Bradley, and Nancy G. Abudu,
American Civil Liberties Union Voting Rights Project,
Atlanta, Georgia, for plaintiffs-appellants Armando Coro-
nado, Joseph Rubio, Michael Garza, Michele Convie, and
Raymond Lewis.
7660 HARVEY v. BREWER
Terry Goddard, Attorney General, Mary O’Grady, Solicitor
General, and Barbara A. Bailey, Assistant Attorney General,
Phoenix, Arizona, for defendants-appellees Janice Brewer and
Ken Bennett.
Barbara LaWall, Pima County Attorney, Tucson, Arizona, for
defendant-appellee F. Ann Rodriguez.
Erika Wood and Myrna Pérez, Brennan Center for Justice,
New York, New York, on behalf of amicus curiae the Bren-
nan Center for Justice.
Lawrence S. Lustberg, Jennifer B. Condon, Gibbons, P.C.,
Newark, New Jersey, on behalf of amicus curiae the Brennan
Center for Justice.
OPINION
O’CONNOR, Associate Justice (Ret.):
Arizona’s Constitution provides: “No person who is adjudi-
cated an incapacitated person shall be qualified to vote at any
election, nor shall any person convicted of treason or felony,
be qualified to vote at any election unless restored to civil
rights.” Ariz. Const. art. VII, § 2. Arizona statutes give effect
to this constitutional provision by suspending the voting
rights of any person convicted of a felony, Ariz. Rev. Stat.
§ 13-904(A)(1), and automatically restoring those rights to
any person convicted of only one felony, provided he: “1.
Completes a term of probation or receives an absolute dis-
charge from imprisonment,” and “2. Pays any fine or restitu-
tion imposed.” Ariz. Rev. Stat. § 13-912(A).
Plaintiffs brought suits challenging Arizona’s disenfran-
chisement scheme. Their first argument was that disenfran-
chisement for felonies not recognized as such at common law
HARVEY v. BREWER 7661
violates the Equal Protection Clause of the Fourteenth
Amendment. While plaintiffs acknowledged that Section 2 of
the Fourteenth Amendment insulates felon-disenfranchise-
ment schemes from equal protection challenges to some
extent, see Richardson v. Ramirez, 418 U.S. 24 (1974), they
argued that Section 2 only permits disenfranchisement for
common-law felonies. In their view, disenfranchisement for
statutory felonies not recognized at common law has no affir-
mative sanction in Section 2 and violates the Equal Protection
Clause.
Three of the plaintiffs also argued that conditioning the res-
toration of the right to vote upon the payment of their criminal
fines and restitution violates various provisions of the United
States and Arizona Constitutions. Particularly, they alleged
that this repayment condition violates the Equal Protection
Clause of the Fourteenth Amendment, the Twenty-Fourth
Amendment’s bar against poll taxes, the Privileges or Immu-
nities Clauses in both the federal and Arizona Constitutions,
and the Arizona Constitution’s provision mandating free and
equal elections. Defendants’ motions to dismiss were granted,
and plaintiffs now raise these same arguments on appeal.
We consider each of these arguments and AFFIRM.
Facts
This is a consolidated appeal arising from two separate
suits: one on behalf of Debra L. Harvey and Catherine M.
Beddard (“Harvey plaintiffs”), and another on behalf of
Armando Coronado, Joseph Rubio, Michael Garza, Michele
Convie, and Raymond Lewis (“Coronado plaintiffs”).
The Harvey plaintiffs each have multiple felony convic-
tions for “drug or other offenses which were not felonies at
common law.” Amended Complaint at 15. While they claim
they would otherwise be eligible to vote, Arizona has denied
them that right because of their felony convictions. They filed
7662 HARVEY v. BREWER
a 42 U.S.C. § 1983 suit against the Governor and Secretary of
State of Arizona, as well as the Pima County Recorder, chal-
lenging Arizona’s disenfranchisement scheme “for denial of
the vote to Plaintiffs and the consequent failure to accord
them the equal protection of the laws in violation of the Four-
teenth Amendment.” Amended Complaint at 1. Defendants
moved to dismiss the suit for failure to state a claim. They
argued that Section 2 of the Fourteenth Amendment affirma-
tively permits the disenfranchisement of felons, that the reach
of Section 2 is not limited to felonies at common law (as
plaintiffs suggest), and that the plaintiffs’ equal protection
claims therefore fail. The District Court, adopting the Report
and Recommendation of the Magistrate Judge, granted defen-
dants’ motion and dismissed the suit.
The Coronado plaintiffs also brought a § 1983 suit against
the same defendants (plus the Maricopa County Recorder),
alleging that they too were denied the right to vote because of
convictions for offenses that, while classified as felonies
under state law, did not constitute felonies at common law.
Coronado and Garza were each convicted of one felony drug
offense; Rubio was convicted of one felony count of
attempted aggravated domestic violence; Convie and Lewis
were convicted of multiple felony drug offenses. They raised
the same equal protection argument as the Harvey plaintiffs
with regard to Section 2.
The Coronado plaintiffs who had only one felony convic-
tion (Coronado, Garza, and Rubio) also challenged Arizona’s
scheme for restoring voting rights to felons. The crux of their
argument was that, because they had served the entirety of
their prison terms for a lone felony conviction, the only thing
keeping them from having their voting rights automatically
reinstated was their failure to pay the criminal fines and resti-
tution orders included in their sentences. See Ariz. Rev. Stat.
§ 13-912(A)(2). This, they argued, discriminates on the basis
of wealth, conditions the right to vote on the payment of a fee,
and violates various federal and state constitutional provi-
HARVEY v. BREWER 7663
sions. Their complaint did not allege that any of them were
incapable of paying the remainder of the money owed under
their sentences. The defendants moved to dismiss the suit for
failure to state a claim, and the district court granted the
motion.
Plaintiffs timely filed notices of appeal, and defendants’
motion to consolidate these appeals was granted.
Discussion
We first address the argument, common to all plaintiffs,
that the Equal Protection Clause only permits felon disenfran-
chisement when the felonies at issue were felonies at common
law.
A. Equal Protection and the Common-Law Felony Theory
of Section 2
[1] Section 1 of the Fourteenth Amendment provides: “No
State shall make or enforce any law which shall . . . deny to
any person within its jurisdiction the equal protection of the
laws.” U.S. Const. amend. XIV, § 1. Section 2 further pro-
vides, in full:
Representatives shall be apportioned among the sev-
eral 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 Judi-
cial officers of a State, or the members of the Legis-
lature 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
7664 HARVEY v. BREWER
be reduced in the proportion which the number of
such male citizens shall bear to the whole number of
male citizens twenty-one years of age in such State.
U.S. Const. amend. XIV, § 2 (emphasis added).
[2] Section 2 provides an electoral penalty against States
that withhold the franchise from otherwise eligible voters. If
a State disenfranchises some number of otherwise eligible
voters, those disenfranchised persons will count against the
State’s total population for purposes of determining its repre-
sentation in Congress. But Section 2 lifts this penalty when
disenfranchisement is based on (and this is the critical lan-
guage) “participation in rebellion, or other crime.” Plaintiffs
argue that this language should be read as: “participation in
rebellion, or other [common-law felony].” As an initial mat-
ter, it is not obvious how the scope of this Section 2 language
affects a Section 1 equal protection claim; to understand that
issue, we turn to the Supreme Court’s opinion in Richardson
v. Ramirez, 418 U.S. 24 (1974).
1. Richardson
Richardson involved a group of convicted felons who had
served the entirety of their sentences and sought to compel
California election officials to register them as voters. They
had been barred from voting under a California statute which
excluded from the franchise all persons previously convicted
of an “infamous crime.” Id. at 27. The California Supreme
Court sustained their equal protection challenges to the Cali-
fornia law, concluding that the disenfranchisement of con-
victed felons beyond the expiration of their terms of
imprisonment violated the Equal Protection Clause. Ramirez
v. Brown, 507 P.2d 1345, 1357 (Cal. 1973).
In reaching that conclusion, the California Supreme Court
relied primarily upon a then-recent Supreme Court decision
striking down Tennessee’s durational residence requirement
HARVEY v. BREWER 7665
as a condition on the right to vote. Id. at 1351-52 (discussing
Dunn v. Blumstein, 405 U.S. 330 (1972)). In nullifying the
Tennessee law at issue in Dunn, the Supreme Court held that
“[i]t is not sufficient for the State to show that durational resi-
dence requirements further a very substantial state interest.
. . . [I]f there are other, reasonable ways to achieve those goals
with a lesser burden on constitutionally protected activity, a
State may not choose the way of greater interference.” Dunn,
405 U.S. at 343. The California Supreme Court followed
Dunn’s reasoning and concluded that “enforcement of modern
statutes regulating the voting process and penalizing its
misuse—rather than outright disfranchisement of persons con-
victed of crime—is today the method of preventing election
fraud which is the least burdensome on the right of suffrage,”
and therefore outright disenfranchisement was not a “neces-
sary” restriction under Dunn’s rationale. Ramirez, 507 P.2d at
1357.
[3] In Richardson, the Supreme Court reversed this judg-
ment and, in doing so, looked primarily to Section 2 of the
Fourteenth Amendment. The Court reasoned that Section 1’s
Equal Protection Clause could not be read to prohibit the dis-
enfranchisement of felons because Section 2 approves of such
disenfranchisement by removing any electoral penalty for it.
Richardson, 418 U.S. at 54 (“[T]he exclusion of felons from
the vote has an affirmative sanction in § 2 of the Fourteenth
Amendment.”). The Court concluded “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 representa-
tion which § 2 imposed for other forms of disenfranchise-
ment.” Id. at 55. Today, a litigant bringing an equal protection
challenge to a felon-disenfranchisement scheme must first
face the formidable task of escaping Richardson’s long
shadow. But see Hunter v. Underwood, 471 U.S. 222, 227,
231 (1985) (invalidating provision in Alabama Constitution
authorizing disenfranchisement for persons convicted of
“crimes involving moral turpitude,” including misdemeanors
7666 HARVEY v. BREWER
not punishable by imprisonment, where “discrimination
against blacks, as well as against poor whites, was a motivat-
ing factor for the provision”).
2. Plain meaning and contemporary usage of “other
crime”
Plaintiffs’ proposed route around Richardson is to argue
that the affirmative sanction in Section 2 only extends to the
disenfranchisement of persons convicted of common-law fel-
onies, a category that they do not fit into. Plaintiffs identify
the common-law felonies as those listed by the Supreme
Court in Jerome v. United States, 318 U.S. 101, 108 n.6
(1943): “murder, manslaughter, arson, burglary, robbery,
rape, sodomy, mayhem and larceny.” Plaintiffs further posit,
with no support, that treason “was a common law felony of
a special sort,” Harvey Br. at 51, but that is inaccurate. 1
Wharton’s Criminal Law § 17 (Torcia ed., 2009) (“At com-
mon law, there were three kinds of offenses: treason, felony,
and misdemeanor.”).1 So plaintiffs’ proposed reading of Sec-
tion 2 as meaning “except for participation in rebellion, or
other [common-law felony]” is off to a bad start, because it
appears participation in rebellion itself would qualify not as
a common-law felony, but as treason.
[4] And plaintiffs’ interpretation is certainly not a plain
reading of Section 2’s terms, which permit disenfranchise-
ment “for participation in rebellion, or other crime” without
regard to whether the crime was a felony at all, much less one
recognized at common law. As noted in Richardson, “this lan-
guage was intended by Congress to mean what it says.” 418
U.S. at 43.
1
We could quibble further with this list—as it may be over- or under-
inclusive, see Legal Servs. for Prisoners with Children v. Bowen, 170 Cal.
App. 4th 447, 463-64 (2009)—but defendants do not dispute that plain-
tiffs’ crimes do not qualify as common-law felonies under any definition
of that phrase.
HARVEY v. BREWER 7667
Plaintiffs’ proposed reading also seems to be in direct con-
flict with Richardson, which held that California may “ex-
clude from the franchise convicted felons who have completed
their sentences,” 418 U.S. at 56 (emphasis added), evincing
no concern with whether any particular felony was one recog-
nized at common law. Indeed, at least one of the three ex-
felons in Richardson was convicted of a crime that was
clearly not a felony at common law. See Richardson, 418 U.S.
at 32 n.9 (“felony of heroin possession”). Still, neither this
court nor the Supreme Court has directly addressed this pre-
cise question, so we consider plaintiffs’ reasons for looking
beyond Section 2’s plain language.
Plaintiffs argue that the word “crime” at the time of the
Fourteenth Amendment’s drafting and ratification commonly
meant “felony at common law.” Contra Kentucky v. Denni-
son, 65 U.S. 66, 99 (1860) (“The word ‘crime’ of itself
includes every offence, from the highest to the lowest in the
grade of offences, and includes what are called ‘misdemea-
nors,’ as well as treason and felony.”). In support of this argu-
ment, plaintiffs cite a dictionary definition and William
Blackstone’s Commentaries, which preceded the Fourteenth
Amendment’s ratification by a century. Harvey Br. at 43-44.
Contemporaneousness aside, neither of these sources supports
plaintiffs’ position that “crime” was commonly understood as
being restricted to common-law felonies.
[5] Webster’s Dictionary defined the word “crime” in 1867
as “An act which violates a law, divine or human; . . . But in
a more common or restricted sense, a crime denotes violation
of public law, of a deeper and more atrocious nature.” NOAH
WEBSTER, AN AMERICAN DiCTIONARY OF THE ENGLISH
LANGUAGE 246 (Goodrich ed., 1867) (emphasis in original).
And William Blackstone observed that “in common usage the
word ‘crimes’ is made to denote such offenses as are of a
deeper and more atrocious dye; while smaller faults and omis-
sions of less consequence are comprised under the gentler
7668 HARVEY v. BREWER
name of ‘misdemeanors’ only.” 4 COMMENTARIES ON THE LAWS
OF ENGLAND *5 (1769).
[6] Noticeably absent from these definitions is any men-
tion whatsoever of common-law felonies. While a litigant
could use these definitions to support the proposition that the
word “crime” in Section 2 refers only to serious crimes or fel-
onies (such that misdemeanors would not fit within the defini-
tion), that is not plaintiffs’ argument. They instead argue that
in 1868 “crimes” meant “felonies at common law,” and
nowhere in any of the definitions is it suggested that the word
“crimes” was so confined. In fact, the cited definitions plainly
undermine plaintiffs’ argument by omitting any reference to
the common law.
Even if we were to assume arguendo that Section 2 is lim-
ited to serious crimes or felonies (as plaintiffs’ definitions
suggest), a far better reference point for determining whether
a crime is serious is to look at how the crime is designated by
the modern-day legislature that proscribed it, rather than
indulging the anachronisms of the common law. Indeed, that
is precisely the course the Supreme Court has charted in
defining the contours of the right to a jury trial.
[7] The Sixth Amendment provides: “In all criminal prose-
cutions, the accused shall enjoy the right to a speedy and pub-
lic trial, by an impartial jury . . . .” U.S. Const. amend. VI; see
also U.S. Const. art. III, § 2, cl. 3 (“The Trial of all Crimes,
except in Cases of Impeachment, shall be by Jury.”). The
Supreme Court has declined to extend this guarantee to petty
offenses because such offenses were tried without a jury at
common law. See Duncan v. Louisiana, 391 U.S. 145, 159
(1968); Cheff v. Schnackenberg, 384 U.S. 373, 379 (1966).
But when determining what qualifies as a “criminal prosecu-
tion” that requires a jury trial, as opposed to the prosecution
of a mere petty offense, the Supreme Court has rejected the
rigid common-law categories and instead “sought more
‘objective indications of the seriousness with which society
HARVEY v. BREWER 7669
regards the offense.’ ” Blanton v. North Las Vegas, 489 U.S.
538, 541-42 (1989) (quoting Frank v. United States, 395 U.S.
147, 148 (1969)). In that context, the Supreme Court has
explained:
In fixing the maximum penalty for a crime, a legisla-
ture includes within the definition of the crime itself
a judgment about the seriousness of the offense. The
judiciary should not substitute its judgment as to
seriousness for that of a legislature, which is far bet-
ter equipped to perform the task, and is likewise
more responsive to changes in attitude and more
amenable to the recognition and correction of their
misperceptions in this respect.
Blanton, 489 U.S. at 541 (citations, quotation marks, and
brackets omitted).
[8] At bottom, plaintiffs provide absolutely no support for
the proposition that the word “crimes” meant “common-law
felonies” at the time of the Fourteenth Amendment’s ratifica-
tion. At most, they have some support for the argument that
Section 2 should be limited to serious offenses, a proposition
which does not help their cause because they have all been
convicted of crimes currently classified as felonies.
3. Legislative history and the Reconstruction and
Enabling Acts
With the plain meaning and contemporary usage of the
word “crime” stacked against them, plaintiffs next turn to the
legislative history of the Fourteenth Amendment. They find
no support in the immediate drafting history or the debates
surrounding the Fourteenth Amendment, which they argue
should not count against them because the Supreme Court has
noted that “[t]he legislative history bearing on the meaning of
the relevant language of § 2 is scant indeed.” Richardson, 418
U.S. at 43. But what little history there is regarding inclusion
7670 HARVEY v. BREWER
of the word “crime” in Section 2 undermines plaintiffs’ argu-
ment. For instance, Representative Ephraim R. Eckley of
Ohio made the following observation in support of Section 2:
“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.” Cong. Globe, 39th Cong., 1st Sess. 2535
(1866). Like the dictionaries plaintiffs cite, this statement sup-
ports the view that “crimes” might be limited to serious
crimes, or crimes the penalty for which is imprisonment in the
penitentiary, but both of those categories include the plain-
tiffs’ offenses and conflict with their common-law felony the-
ory.
[9] Beyond this drafting history, “[f]urther light is shed on
the understanding of those who framed and ratified the Four-
teenth 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 fran-
chise by persons convicted of felonies or infamous crimes.”
Richardson, 418 U.S. at 48 & n.14 (citing state constitutions).
Of the 29 State constitutions that Richardson referred to, it
does not appear that any of them limited disenfranchisement
to persons convicted of common-law felonies. See, e.g., Ala.
Const. art. VI, § 5 (1819) (providing for disenfranchisement
of persons “convicted of bribery, perjury, forgery, or other
high crimes or misdemeanors”); Conn. Const. art. VI, § 3
(1818) (“bribery, forgery, perjury, duelling, fraudulent bank-
ruptcy, theft, or other offence for which an infamous punish-
ment is inflicted”); Del. Const. art. IV, § 1 (1831) (“convicted
of a crime deemed by law a felony”); Ore. Const. art. II, § 3
(1857) (“of any crime which is punishable by imprisonment
in the penitentiary”); Va. Const. art. III, § 14 (1830)
(“convicted of any infamous offence”). It would be remark-
able if the many states ratifying the Fourteenth Amendment
intended to nullify their own constitutional provisions, but
that is exactly what plaintiffs’ reading of Section 2 entails.
HARVEY v. BREWER 7671
Finding no help in the history of the Fourteenth Amend-
ment’s ratification, plaintiffs focus their argument on the
Reconstruction Act of March 2, 1867. The Reconstruction Act
was enacted by the 39th Congress in 1867—nine months after
the very same Congress submitted the Fourteenth Amendment
to the States for ratification. Section 5 of the Act “established
conditions on which the former Confederate States would be
readmitted to representation in Congress.” Richardson, 418
U.S. at 49. Section 5 of the Act provided, in part:
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 elec-
tion, except such as may be disenfranchised for par-
ticipation in the rebellion or for felony at common
law. . . . said State shall be declared entitled to repre-
sentation in Congress, and senators and representa-
tives 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.
14 Stat. 428, § 5 (emphasis added).2
Similarly, the various enabling acts used to readmit the
Confederate States to representation in Congress provide, in
nearly identical language, that a “fundamental condition” of
2
The first ellipsis omits a number of conditions placed on the Confeder-
ate States before they would be readmitted to representation in Congress,
including ratification of the Fourteenth Amendment. While those condi-
tions are important to understanding the Reconstruction Act, and various
constitutional questions surrounding it, they are not important here.
7672 HARVEY v. BREWER
readmission is that their state constitutions shall never “be so
amended or changed as to deprive any citizen or class of citi-
zens of the United States of the right to vote in said State, who
are entitled to vote by the constitution thereof herein recog-
nized, except as a punishment for such crimes as are now fel-
onies at common law.” 15 Stat. 73 (1868) (emphasis added)
(readmitting North Carolina, South Carolina, Louisiana,
Georgia, Alabama and Florida); see also 15 Stat. 72 (1868)
(readmitting Arkansas); 16 Stat. 62 (1870) (readmitting Vir-
ginia); 16 Stat. 67 (1870) (readmitting Mississippi). Plaintiffs
conclude that because the Reconstruction and Enabling Acts
only permitted disenfranchisement for felonies at common
law, so too must Section 2 of the Fourteenth Amendment be
read to only permit disenfranchisement for felonies at com-
mon law.
[10] But the opposite is true. The Reconstruction Act’s ref-
erence to felonies at common law only shows that when the
39th Congress meant to specify felonies at common law, it
was quite capable of using that phrase. That Congress used
the phrase “other crime” in Section 2, while specifying “fel-
ony at common law” in a later act, clearly indicates that the
two phrases have different meanings and Congress was capa-
ble of using each when it intended to do so.
Plaintiffs’ response—which is really the driving force of
their entire argument—is that we must read Section 2 and the
Reconstruction and Enabling Acts harmoniously and interpret
them identically because to do otherwise would mean “that
the Fourteenth Amendment is in direct and absolute conflict
with the Reconstruction and Enabling Acts.” Harvey Br. at
31. That is, if we reject plaintiffs’ argument, the Fourteenth
Amendment would permit what the Reconstruction Act
explicitly prohibits: disenfranchisement for statutory felonies.
See Harvey Br. at 32 (“[Section 2], as construed by the Dis-
trict Court, affirmatively authorizes disenfranchisement for
statutory felonies. The Acts prohibit disenfranchisement for
HARVEY v. BREWER 7673
statutory felonies. It is hard to imagine a more self-evident
conflict.”).
The most glaring flaw with this argument is that the
absence of a constitutional prohibition does not somehow bar
a statutory one. Simply because the Fourteenth Amendment
does not itself prohibit States from enacting a broad array of
felon disenfranchisement schemes does not mean that Con-
gress cannot do so through legislation—provided, of course,
that Congress has the authority to enact such a prohibition.
Plaintiffs’ confusion on this point seems to stem from lan-
guage in Richardson, in which the Supreme Court noted that
felon disenfranchisement is given an “affirmative sanction” in
Section 2 of the Fourteenth Amendment. 418 U.S. at 54. But
the “affirmative sanction” language in Richardson only means
that the Equal Protection Clause of the Fourteenth Amend-
ment does not prohibit felon disenfranchisement because Sec-
tion 2 brings it outside of Section 1’s prohibition. It certainly
does not mean that a certain felon disenfranchisement scheme
is constitutionally mandated by Section 2, as plaintiffs would
read it.
Plaintiffs’ reliance on the Eleventh Circuit’s opinion in
Johnson v. Governor of Florida, 405 F.3d 1214 (11th Cir.
2005), is also misguided. Johnson held that felon-
disenfranchisement claims are not cognizable under the Vot-
ing Rights Act (“VRA”), which proscribes States from enact-
ing voter qualifications or standards that discriminate based
on race. Id. at 1234; 42 U.S.C. § 1973. As support for this
conclusion, it reasoned that if section 2 of the VRA extended
to such claims, the VRA “would prohibit a practice that the
Fourteenth Amendment permits Florida to maintain.” John-
son, 405 F.3d at 1234.
The Eleventh Circuit’s point was not that the VRA would
somehow conflict with Section 2 of the Fourteenth Amend-
ment if it were interpreted to bar felon disenfranchisement,
but that it would be beyond Congress’s Section 5 enforcement
7674 HARVEY v. BREWER
power. See U.S. Const. amend XIV, § 5 (“The Congress shall
have power to enforce, by appropriate legislation, the provi-
sions of [the Fourteenth Amendment].”); see also Baker v.
Pataki, 85 F.3d 919, 930 (2d Cir. 1996) (opinion of Mahoney,
J.) (“[A]ny attempt by Congress to subject felon disenfran-
chisement provisions to the ‘results’ methodology of [the
VRA] would pose a serious constitutional question concern-
ing the scope of Congress’ power to enforce the Fourteenth
and Fifteenth Amendments.”); Farrakhan v. Washington, 359
F.3d 1116, 1121-25 (9th Cir. 2004) (Kozinski, J., dissenting
from denial of rehearing en banc) (arguing that felon disen-
franchisement claims are not cognizable under the VRA). The
argument in Johnson was that a congressional Act prohibiting
felon disenfranchisement could not be authorized under Con-
gress’s Section 5 powers because such an Act would not be
enforcing the Fourteenth Amendment, which plainly permits
felon disenfranchisement. But see Farrakhan v. Washington,
338 F.3d 1009, 1016 (9th Cir. 2003).
But the Reconstruction Act was most assuredly not enacted
under the Section 5 power, as it preceded the Fourteenth
Amendment’s ratification by more than a year. Cf. Oregon v.
Mitchell, 400 U.S. 112, 192 (1970) (Harlan, J., concurring in
part and dissenting in part) (discussing the Reconstruction
Congress’s “power to interfere with state voter qualifica-
tions,” positing that this power “was said to exist in a variety
of constitutional provisions, including Art. I, § 2, Art. I, § 4,
the war power, the power over territories, the guarantee of a
republican form of government, and § 2 of the Thirteenth
Amendment.”). Johnson, therefore, is inapposite.
Finally, even if we could discern some conflict between
Section 2 of the Fourteenth Amendment and the Reconstruc-
tion and Enabling Acts, plaintiffs’ suggestion that this
requires reading the Amendment to comport with the Acts has
it exactly backward. See Harvey Br. at 35 (“The Fourteenth
Amendment should be construed so that it is consistent with
the Acts.”). The canon of constitutional avoidance—providing
HARVEY v. BREWER 7675
that a court will not pass upon a constitutional question if
there is some other ground upon which the case may be
disposed—is not a two-way street. There is no canon of “stat-
utory avoidance.” Courts construe statutes to avoid constitu-
tional problems, not the other way around.
[11] At bottom, plaintiffs urge an interpretation of Section
2’s “other crime” provision that is in extreme tension with
Richardson, contrary to the phrase’s plain meaning and its
past and contemporary usage, and belied by the Fourteenth
Amendment’s history. In response to these failings, they offer
only an imaginary constitutional dilemma accompanied by an
invitation to insert language into the Fourteenth Amendment’s
text because of a newly conceived canon of statutory avoid-
ance that contradicts basic principles of constitutional inter-
pretation. We decline their invitation and reject their equal
protection claim.
B. Conditioning Restoration of the Right to Vote upon
Payment of Fines and Restitution
The three Coronado plaintiffs who have only one felony
conviction (Coronado, Garza, and Rubio) also challenge Ari-
zona’s scheme for automatically restoring the right to vote to
one-time felons who complete their sentences and pay any
fines or restitution imposed against them. See Ariz. Rev. Stat.
§ 13-912(A). They argue that requiring felons to pay any
money owed under the terms of their sentences violates the
Equal Protection Clause of the Fourteenth Amendment, the
bar against poll taxes in the Twenty-Fourth Amendment, the
Privileges or Immunities Clauses in both federal and state
constitutions, and the free and equal elections provision in
Article II, § 21 of the Arizona Constitution. We address each
of these claims.
[12] At the outset, we note two important points. First,
plaintiffs acknowledge that, “once taken away the right [to
vote] does not have to be restored.” Coronado Br. at 15. That
7676 HARVEY v. BREWER
is, once a felon is properly disenfranchised a state is at liberty
to keep him in that status indefinitely and never revisit that
determination. See Richardson, 418 U.S. at 26-27 (upholding
California’s scheme disenfranchising felons, including those
who had completed the entirety of their sentences). But plain-
tiffs argue that “once a state adopts a scheme to restore this
fundamental right, it may not require satisfaction of an uncon-
stitutional condition.” Id. Second, no plaintiff alleges that he
is indigent, so to the extent that fact might affect the analysis,
we explicitly do not address challenges based on an individu-
al’s indigent status. All we know from the allegations con-
tained in the plaintiffs’ complaint is that each of them failed
to pay obligations owed under the terms of his criminal sen-
tence.
[13] We begin with the equal protection claim. Plaintiffs’
argument is that they have been deprived of the fundamental
right to vote and that we are therefore required to review Ari-
zona’s scheme for restoring the voting rights of felons under
a strict scrutiny standard. But they cannot complain about
their loss of a fundamental right to vote because felon disen-
franchisement is explicitly permitted under the terms of Rich-
ardson. 418 U.S. at 55. What plaintiffs are really complaining
about is the denial of the statutory benefit of re-
enfranchisement that Arizona confers upon certain felons.
This is not a fundamental right; it is a mere benefit that (as
plaintiffs admit) Arizona can choose to withhold entirely.
Therefore, we do not apply strict scrutiny as we would if
plaintiffs were complaining about the deprivation of a funda-
mental right.
[14] Even a statutory benefit can run afoul of the Equal
Protection Clause, though, if it confers rights in a discrimina-
tory manner or distinguishes between groups in a manner that
is not rationally related to a legitimate state interest. See
Fields v. Palmdale School Dist., 427 F.3d 1197, 1209 (9th
Cir. 2005) (“[G]overnment actions that do not affect funda-
mental rights or liberty interests and do not involve suspect
HARVEY v. BREWER 7677
classifications will be upheld if it they are rationally related
to a legitimate state interest.”). For instance, a state could not
choose to re-enfranchise voters of only one particular race,
see Hunter, 471 U.S. at 233, or re-enfranchise only those fel-
ons who are more than six-feet tall. Cf. Nordlinger v. Hahn,
505 U.S. 1, 11 (1992) (“[T]he Equal Protection Clause is sat-
isfied so long as there is a plausible policy reason for the clas-
sification . . . and the relationship of the classification to its
goal is not so attenuated as to render the distinction arbitrary
or irrational.” (citations omitted)).
[15] We have little trouble concluding that Arizona has a
rational basis for restoring voting rights only to those felons
who have completed the terms of their sentences, which
includes the payment of any fines or restitution orders. Just as
States might reasonably conclude that perpetrators of serious
crimes should not take part in electing government officials,
so too might it rationally conclude that only those who have
satisfied their debts to society through fulfilling the terms of
a criminal sentence are entitled to restoration of their voting
rights. See Madison v. State, 163 P.3d 757, 771 (Wash. 2007);
see also Owens v. Barnes, 711 F.2d 25, 27-28 (3d Cir. 1983)
(scheme restoring voting rights to unincarcerated felons satis-
fies rational basis review). Perhaps withholding voting rights
from those who are truly unable to pay their criminal fines
due to indigency would not pass this rational basis test, but we
do not address that possibility because no plaintiff in this case
has alleged that he is indigent.
[16] Plaintiffs’ Twenty-Fourth Amendment claim fares no
better. The Twenty-Fourth Amendment provides:
The right of citizens of the United States to vote in
any primary or other election for President or Vice
President, for electors for President or Vice Presi-
dent, or for Senator or Representative in Congress,
shall not be denied or abridged by the United States
7678 HARVEY v. BREWER
or any State by reason of failure to pay any poll tax
or other tax.
U.S. Const. amend. XXIV. Plaintiffs’ right to vote was not
abridged because they failed to pay a poll tax; it was abridged
because they were convicted of felonies. Having lost their
right to vote, they now have no cognizable Twenty-Fourth
Amendment claim until their voting rights are restored. That
restoration of their voting rights requires them to pay all debts
owed under their criminal sentences does not transform their
criminal fines into poll taxes.
[17] Plaintiffs next rely on the Privileges or Immunities
Clause in the Fourteenth Amendment, which reads: “No State
shall make or enforce any law which shall abridge the privi-
leges or immunities of citizens of the United States.” U.S.
Const. amend. XIV, § 1. Assuming for the sake of argument
that the right of suffrage is one of the privileges or immunities
protected by this clause, contra Minor v. Happersett, 88 U.S.
162, 171, 177 (1874), plaintiffs’ argument fails under the
exact same rationale adopted by the Supreme Court in Rich-
ardson: Section 1 of the Fourteenth Amendment, which
includes both the Equal Protection and Privileges or Immuni-
ties Clauses, “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.” 418 U.S.
at 55.
[18] Plaintiffs’ argument based on the Arizona Constitu-
tion’s Privileges or Immunities Clause fails for the same rea-
son. See Ariz. Const. art. II, § 13 (“No law shall be enacted
granting to any citizen, class of citizens, or corporation other
than municipal, privileges or immunities which, upon the
same terms, shall not equally belong to all citizens or corpora-
tions.”). The Arizona Supreme Court has “held that this
clause provides the same benefits as its federal counterpart,”
Standhardt v. Super. Ct. ex rel. County of Maricopa, 77 P.3d
HARVEY v. BREWER 7679
451, 464 n.19 (Ariz. 2003), and plaintiffs acknowledge that its
protections do not extend beyond those provided in the Four-
teenth Amendment of the United States Constitution. Coro-
nado Br. at 35. Because the Fourteenth Amendment cannot be
read to prohibit Arizona’s felon disenfranchisement scheme,
neither can this provision of the Arizona Constitution.
[19] Finally, we reject plaintiffs’ argument that requiring
them to pay off their criminal fines and restitution orders vio-
lates the Arizona Constitution’s Free and Equal Elections
Clause. Ariz. Const. art. II, § 21 (“All elections shall be free
and equal, and no power, civil or military, shall at any time
interfere to prevent the free exercise of the right of suf-
frage.”). The Arizona Constitution expressly permits felon
disenfranchisement, see Ariz. Const. art. VII, § 2, and lest
there be a conflict between these two constitutional provi-
sions, the best reading of the Free and Equal Elections Clause
is that it does not apply to disenfranchised felons, but only to
those who are otherwise qualified to vote. See Arizona ex rel.
Nelson v. Jordan, 450 P.2d 383, 386 (Ariz. 1969) (when “sep-
arate parts of a constitution are seemingly in conflict, it is the
duty of the court to harmonize both so that the constitution is
a consistent workable whole”). And as between felons, Arizo-
na’s statutory scheme restoring voting rights applies equally
to all. All felons must complete the terms of their sentences
before their voting rights are restored. Ariz. Rev. Stat. § 13-
912(A).
Conclusion
[20] The Fourteenth Amendment permits States to disen-
franchise felons, regardless of whether their offenses were
recognized as felonies at common law. Requiring felons to
satisfy the terms of their sentences before restoring their vot-
ing rights is rationally related to a legitimate state interest, and
does not violate any of the various constitutional provisions
plaintiffs rely upon.
AFFIRMED.