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Did I Get Public Rights Wrong?

In earlier work, I discussed historical understandings of the kinds of disputes that Congress can authorize nonjudicial actors to resolve and the kinds of disputes that can be resolved only by courts. The framework that I described revolved around two distinctions: (1) the difference between “public rights” (which I defined as legal interests that belong to the government or the people collectively) and legal interests that belong to a private person; and (2) within the category of private legal interests, the difference between mere privileges or expectancies and vested rights to life, liberty, or property. In my telling, nineteenth-century lawyers and judges thought that Congress could authorize executive-branch actors to administer and dispose of “public rights” and mere privileges or expectancies without judicial involvement, but that only courts could render judgments conclusively rejecting a private person’s claim to vested rights.

Recently, Professor Gregory Ablavsky has taken issue with my account. In Getting Public Rights Wrong: The Lost History of the Private Land Claims, 74 Stan. L. Rev. 277 (2022), he identified an alleged counterexample to the framework that I described: when foreign sovereigns ceded territory to the United States, inhabitants of the ceded territories who claimed “imperfect” titles based on incomplete grants from the previous sovereign were not thought to be entitled to judicial adjudication of their claims, even though the legal interests that they asserted were regarded as property. According to Professor Ablavsky, this history supports a broader understanding of “public rights” than I offered, and it potentially legitimates more nonjudicial adjudication than my framework would suggest.

This Article responds. It explains why imperfect titles to land in the ceded territories were not treated as judicially cognizable vested rights, and it defends my understanding of “public rights.”

Introduction

Article III of the Constitution begins as follows:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.1 1.U.S. Const. art. III, § 1.Show More

The strong implication is that only true federal courts, whose judges enjoy the independence that allegedly comes with a guaranteed compensation and tenure during good behavior, can exercise what Article III calls “[t]he judicial Power of the United States.”2 2.See, e.g., Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, 138 S. Ct. 1365, 1372–73 (2018) (“Congress cannot ‘confer the Government’s “judicial Power” on entities outside Article III.’” (quoting Stern v. Marshall, 564 U.S. 462, 484 (2011))); Ex parte Randolph, 20 F. Cas. 242, 254 (C.C.D. Va. 1833) (No. 11,558) (opinion of Marshall, Circuit Justice) (observing that decision-makers who “do not compose a court ordained and established by congress, nor . . . hold offices during good behavior,” are “incapable of exercising any portion of the judicial power” of the United States).Show More

Unfortunately, figuring out what that means is harder than it might seem. Nonlawyers might assume that any governmental body that resolves particularized matters via adjudication—finding facts, applying pre-existing legal principles to those facts, and rendering decisions with legal effect—must be exercising “judicial Power” of the sort that Article III regulates. But history belies this assumption. With statutory authorization, officials in the executive branch have long made various kinds of adjudicative decisions that have legal consequences, but that are thought to entail the exercise of “executive” rather than “judicial” power.3 3.Cf. William Baude, Adjudication Outside Article III, 133 Harv. L. Rev. 1511, 1540 (2020) (“[N]ot every application of law to fact requires a court. Indeed, factfinding, and the application of law to fact, is a ubiquitous part of executive action.”).Show More For instance, the First Congress authorized a trio of executive officers to entertain petitions from applicants who were seeking patents for inventions, and to grant patents from the United States to applicants who met the statutory criteria.4 4.See Patent Act of 1790, ch. 7, § 1, 1 Stat. 109, 109–10 (repealed 1793).Show More Likewise, Congress itself routinely entertained petitions from people with legal or moral claims against the United States, and Congress used its “legislative” powers to enact private bills awarding money from the Treasury or other relief to claimants whom Congress deemed deserving.5 5.See generally William C. diGiacomantonio, Petitioners and Their Grievances: A View from the First Federal Congress, in The House and Senate in the 1790s: Petitioning, Lobbying, and Institutional Development 29 (Kenneth R. Bowling & Donald R. Kennon eds., 2002) (canvassing many kinds of petitions acted upon by the First Congress). See also Maggie McKinley, Petitioning and the Making of the Administrative State, 127 Yale L.J. 1538, 1579–1600 (2018) (noting Congress’s eventual creation of alternative mechanisms, including administrative mechanisms, for handling matters that had generated a high volume of petitions). Admittedly, when Congress handled these matters itself, the private bills that Congress enacted did not have to reflect the application of pre-existing legal criteria; by virtue of its “legislative” powers, Congress could change the law in more freewheeling fashion than either executive or judicial actors. In practice, though, Congress could choose to perform the same sorts of adjudicative tasks in these matters that executive or judicial actors might be called upon to perform.Show More

Still, some other kinds of adjudicative decisions cannot be made either by Congress itself or by officials or agencies in the executive branch. For instance, Congress cannot enact a statute authoritatively declaring that you are guilty of a federal crime and sentencing you to prison.6 6.See U.S. Const. art. I, § 9, cl. 3 (prohibiting the passage of bills of attainder).Show More Nor can Congress empower an executive branch agency to make decisions of that sort. Such decisions can be made only by a true court, exercising “judicial” power.

Almost twenty years ago, I wrote an article providing a historical account of these distinctions.7 7.Caleb Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559 (2007) [hereinafter Nelson, Adjudication].Show More Under longstanding ideas about the operation of American-style separation of powers, I argued, “judicial” power was associated with the protection of certain types of legal interests belonging to private individuals or entities—what I called “core private rights,” and what nineteenth-century lawyers thought of as “vested rights” to life, liberty, or property.8 8.See id. at 566–72; see also Caleb Nelson, Vested Rights, “Franchises,” and the Separation of Powers, 169 U. Pa. L. Rev. 1429, 1438–84 (2021) [hereinafter Nelson, Franchises] (amending what I had said about the place of “franchises” in this framework).Show More

As nineteenth-century lawyers and judges fleshed out their understanding of the constitutional distribution of powers, they tended to regard the political branches as appropriate representatives of the public, and they did not think that the government needed to exercise “judicial” power in order to dispose of so-called “public rights”—legal interests belonging to the government itself or to the people in their collective capacity. For instance, Congress could transfer land from the public domain to a private person simply by enacting a statute to that effect.9 9.See Nelson, Adjudication, supra note 7, at 577 & n.71 (citing cases).Show More Alternatively, if Congress did not want to administer such transfers itself, Congress could establish statutory criteria for land grants and authorize an executive branch agency to determine whether particular applicants satisfied them. Under nineteenth-century understandings of the Constitution, Congress normally did not have to let would-be transferees dispute those determinations in court, because the would-be transferees’ legal interests normally amounted to mere expectancies or privileges that Congress had the power to dash (rather than core private rights that had vested even as against Congress).10 10.See id. at 577–80; Nelson, Franchises, supra note 8, at 1435.Show More But things changed once a transfer occurred. To be sure, even after the government had issued a land patent evidencing the transfer, the patent might still be subject to cancellation on certain grounds (such as fraud on the part of the transferee or certain types of mistakes on the part of the land office).11 11.See, e.g., United States v. Stone, 69 U.S. (2 Wall.) 525, 535 (1865).Show More If the transferee resisted, though, the executive branch could not unilaterally determine that such grounds existed and expect courts to give its determination conclusive effect. By this point, the transferee would be claiming a “vested” right to the land, and the legally conclusive rejection of such a claim required judicial power.12 12.See id. (observing that the cancellation of a land patent “is a judicial act, and requires the judgment of a court”); see also Nelson, Adjudication, supra note 7, at 578 n.74 (citing additional cases); Nelson, Franchises, supra note 8, at 1503–04 & nn.429–32 (same).Show More

Because the current Supreme Court is looking to history to help identify the adjudicative authority that Congress can and cannot give federal administrative agencies, the framework that I described has enjoyed a resurgence.13 13.See Nelson, Franchises, supra note 8, at 1432 & nn.7–10 (citing cases and commentary).Show More Recently, however, Professor Gregory Ablavsky has argued that I missed an important part of the history and that I therefore drew the wrong conclusions. “Throughout the nineteenth century,” he writes, “the administrative adjudication of at least one form of vested rights to private property was constitutionally permissible.”14 14.Gregory Ablavsky, Getting Public Rights Wrong: The Lost History of the Private Land Claims, 74 Stan. L. Rev. 277, 284 (2022).Show More Based on this alleged counterexample, he draws broad lessons—perhaps that “the administrative adjudication of rights, including to property, is on firmer historical footing than current critics argue,”15 15.Id. at 285.Show More or perhaps that history does not supply answers at all because “people then were just as confused as we are.”16 16.Id. at 351.Show More

Professor Ablavsky’s counterexample grows out of the expansion of the United States. When the United States acquired sovereignty over territories previously governed by other countries, the United States also acquired title to the public domain—the lands that had been owned by the previous sovereign. But not all of the land in these territories was in the public domain. Even if Indigenous titles had somehow been “extinguished,”17 17.See id. at 290 (noting this locution).Show More other residents of the territories claimed private ownership rights derived from the previous sovereign. The nature of those claims varied. Some people had “perfect” and “complete” titles; the former sovereign had granted a defined tract to them or their predecessors in interest, and the grant had been completed before sovereignty passed to the United States. Many other people, though, claimed “imperfect” or “inchoate” titles of one sort or another.18 18.See, e.g., 1 Curtis H. Lindley, A Treatise on the American Law Relating to Mines and Mineral Lands § 116 (San Francisco, Bancroft-Whitney Co. 1897) (discussing claims based on Mexican grants within the territory ceded by the Treaty of Guadalupe Hidalgo, and observing that “[m]ost of [the claimed grants] were inchoate—that is to say, something remained to be done to either perfect and establish the title or to fix the boundaries”); see also Tobin v. Walkinshaw, 23 F. Cas. 1338, 1342 (C.C.N.D. Cal. 1856) (No. 14,069) (defining “[t]he distinction between perfect and inchoate titles” in terms of whether “‘further action of the political authority’” is needed (quoting Hancock v. McKinney, 7 Tex. 384, 457 (1851) (opinion of Lipscomb, J.))).Show More Perhaps provincial authorities who lacked final authority to make grants had issued a “concession” in favor of a private person, but the previous sovereign had not approved and completed the grant by the time sovereignty passed to the United States.19 19.See, e.g., West v. Cochran, 58 U.S. (17 How.) 403, 413 (1855) (describing “the condition of claims to land derived from France and Spain, before the United States acquired Louisiana”); see also Snyder v. Sickles, 98 U.S. 203, 203 (1878) (“Titles to lands claimed by individuals in Louisiana at the time the province was ceded to the United States were in most cases incomplete, as the governor of the province never possessed the power to grant a patent. All he could do was to issue to the donee an instrument called a concession or order of survey, which never invested the party with a fee-simple title . . . .”); Menard’s Heirs v. Massey, 49 U.S. (8 How.) 293, 303–06 (1850) (similar).Show More Perhaps a grant from the previous sovereign had been subject to conditions precedent (such as occupation and cultivation of the land) that had not been satisfied by the time sovereignty passed—with the result, again, that legal title to the land had remained in the previous sovereign and was now held by the United States.20 20.See United States v. Wiggins, 39 U.S. (14 Pet.) 334, 350 (1840) (observing that in Florida, “there were at the date of the [Adams-Onís] treaty very many claims, whose validity depended upon the performance of conditions in consideration of which the concessions had been made, and which must have been performed before Spain was bound to perfect the titles”).Show More Perhaps the relevant concession or grant had purported to be unqualified but had not adequately defined the boundaries of the land in question.21 21.See, e.g., Bissell v. Penrose, 49 U.S. (8 How.) 317, 334 (1850) (referring to Spanish concessions in Upper Louisiana that had “designat[ed] some natural object only, such as the head or sources of a river, as the place where the tract should be located”); More v. Steinbach, 127 U.S. 70, 78 (1888) (noting that some Spanish and Mexican grants in California had referred to “lands known only by particular names, without any designated boundaries”).Show More Perhaps the previous sovereign had simply authorized a private person to choose a specified quantity of land from within a larger tract, and the location had not been made while the previous sovereign was in charge.22 22.See Bissell, 49 U.S. (8 How.) at 334 (noting the prevalence of such floating grants in the former Louisiana territory); More, 127 U.S. at 78 (same with respect to California); cf. Scull v. United States, 98 U.S. 410, 419–20 (1879) (referring separately to “an inchoate or imperfect title” and “a perfected grant for an unknown location, or for a given quantity within defined out-boundaries,” but contrasting both with “a title completed under the foreign government”).Show More

Although the United States acknowledged an obligation to recognize imperfect titles of various sorts, and although the United States chose to recognize some additional inchoate claims that it might not have had an obligation to recognize,23 23.In the early nineteenth century, for instance, Spain occupied the territory known as West Florida, but the United States took the position that Spain had ceded this territory to France (via the Treaty of St. Ildefonso in 1800) and that the United States had acquired it from France as part of the Louisiana Purchase. In accord with this position, the Supreme Court refused to recognize land grants purportedly made by Spain during its allegedly wrongful occupation. See, e.g., United States v. Reynes, 50 U.S. (9 How.) 127, 153–54 (1850). In 1860, though, Congress enacted a statute allowing the confirmation of claims based on such grants. See Act of June 22, 1860, ch. 188, 12 Stat. 85; see also United States v. Lynde, 78 U.S. (11 Wall.) 632, 634–47 (1871) (recounting history and observing that “the case of the claimants . . . must stand on the voluntary bounty of our government, exerted through its legislative department”).Show More deciding which claims were factually and legally valid was an enormous challenge. As Professor Ablavsky recounts, Congress took different approaches at different times and with respect to different ceded territories. But a common theme was that people who were claiming less-than-perfect title had to present their claims to a board of commissioners for adjudication.24 24.See Ablavsky, supra note 14, at 287.Show More As time went by, some of the relevant statutory schemes provided for de novo judicial review of the commissioners’ decisions in a regular court,25 25.See id. at 294–95.Show More but Congress evidently did not consider that necessary. Sometimes, Congress made the commissioners’ decision to confirm a claim final and conclusive against the United States.26 26.See id. at 292.Show More Sometimes, the commissioners would simply refer their decision to Congress, which could confirm claims by statute if it so chose.27 27.See id. at 293.Show More Under either of those arrangements, the confirmation of a claim acted upon public rights by releasing whatever title the United States might otherwise have had to the land; on one way of thinking, the United States was stepping into the shoes of the former sovereign and completing the grant. But if a claim of this sort was rejected, or was not presented to the board of commissioners at all, the disappointed claimant could not get a court to recognize his purported rights to the land in question (unless Congress had so provided). In practice, moreover, the (nonjudicial) confirmation of one imperfect title could defeat the interests of others who asserted imperfect titles to the same land.28 28.See, e.g., Dent v. Emmeger, 81 U.S. (14 Wall.) 308, 312–13 (1872); Landes v. Brant, 51 U.S. (10 How.) 348, 370 (1851).Show More According to Professor Ablavsky, these arrangements are inconsistent with the framework that I described, because even imperfect titles to land allegedly were regarded as “vested” private rights to property.

Professor Ablavsky is an expert on land law in the early American West, and his account is rich and informative. It has already received well-deserved praise, including the William Nelson Cromwell Foundation’s inaugural $10,000 prize for the Legal History Article of the Year.29 29.Legal History Article of the Year Prize, William Nelson Cromwell Found., https://crom‌wellfoundation.org/legal-history-article-of-the-year-prize/ [https://perma.cc/QU7H-PPFM] (last visited Jan. 24, 2026).Show More But while I have learned from Professor Ablavsky’s research, I do not think that his evidence does much to undermine the framework that I described. This Article explains why.30 30.There is already something of a debate about whether Professor Ablavsky’s research is contrary to mine. Compare Richard H. Fallon, Jr., Non-Article III Federal Tribunals: An Essay on the Relation Between Theory and Practice, 99 Notre Dame L. Rev. 1691, 1723–24 (2024) (taking there to be real disagreement), with Ann Woolhandler & Michael G. Collins, The Public/Private Rights Critics, 99 Notre Dame L. Rev. 1779, 1781–85 (2024) (arguing that Professor Ablavsky’s account tends to “confirm” rather than undermine the framework that I described), and Ilan Wurman, Nonexclusive Functions and Separation of Powers Law, 107 Minn. L. Rev. 735, 763 n.136 (2022) (asserting that “the distinction Ablavsky draws . . . tracks the [public/private] dichotomy exactly”).Show More

  1.  U.S. Const. art. III, § 1. ↑
  2.  See, e.g., Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, 138 S. Ct. 1365, 1372–73 (2018) (“Congress cannot ‘confer the Government’s “judicial Power” on entities outside Article III.’” (quoting Stern v. Marshall, 564 U.S. 462, 484 (2011))); Ex parte Randolph, 20 F. Cas. 242, 254 (C.C.D. Va. 1833) (No. 11,558) (opinion of Marshall, Circuit Justice) (observing that decision-makers who “do not compose a court ordained and established by congress, nor . . . hold offices during good behavior,” are “incapable of exercising any portion of the judicial power” of the United States). ↑
  3.  Cf. William Baude, Adjudication Outside Article III, 133 Harv. L. Rev. 1511, 1540 (2020) (“[N]ot every application of law to fact requires a court. Indeed, factfinding, and the application of law to fact, is a ubiquitous part of executive action.”). ↑
  4.  See Patent Act of 1790, ch. 7, § 1, 1 Stat. 109, 109–10 (repealed 1793). ↑
  5.  See generally William C. diGiacomantonio, Petitioners and Their Grievances: A View from the First Federal Congress, in The House and Senate in the 1790s: Petitioning, Lobbying, and Institutional Development 29 (Kenneth R. Bowling & Donald R. Kennon eds., 2002) (canvassing many kinds of petitions acted upon by the First Congress). See also Maggie McKinley, Petitioning and the Making of the Administrative State, 127 Yale L.J. 1538, 1579–1600 (2018) (noting Congress’s eventual creation of alternative mechanisms, including administrative mechanisms, for handling matters that had generated a high volume of petitions). Admittedly, when Congress handled these matters itself, the private bills that Congress enacted did not have to reflect the application of pre-existing legal criteria; by virtue of its “legislative” powers, Congress could change the law in more freewheeling fashion than either executive or judicial actors. In practice, though, Congress could choose to perform the same sorts of adjudicative tasks in these matters that executive or judicial actors might be called upon to perform. ↑
  6.  See U.S. Const. art. I, § 9, cl. 3 (prohibiting the passage of bills of attainder). ↑
  7.  Caleb Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559 (2007) [hereinafter Nelson, Adjudication]. ↑
  8.  See id. at 566–72; see also Caleb Nelson, Vested Rights, “Franchises,” and the Separation of Powers, 169 U. Pa. L. Rev. 1429, 1438–84 (2021) [hereinafter Nelson, Franchises] (amending what I had said about the place of “franchises” in this framework). ↑
  9.  See Nelson, Adjudication, supra note 7, at 577 & n.71 (citing cases). ↑
  10.  See id. at 577–80; Nelson, Franchises, supra note 8, at 1435. ↑
  11.  See, e.g., United States v. Stone, 69 U.S. (2 Wall.) 525, 535 (1865). ↑
  12.  See id. (observing that the cancellation of a land patent “is a judicial act, and requires the judgment of a court”); see also Nelson, Adjudication, supra note 7, at 578 n.74 (citing additional cases); Nelson, Franchises, supra note 8, at 1503–04 & nn.429–32 (same). ↑
  13.  See Nelson, Franchises, supra note 8, at 1432 & nn.7–10 (citing cases and commentary). ↑
  14.  Gregory Ablavsky, Getting Public Rights Wrong: The Lost History of the Private Land Claims, 74 Stan. L. Rev. 277, 284 (2022). ↑
  15.  Id. at 285. ↑
  16.  Id. at 351. ↑
  17.  See id. at 290 (noting this locution). ↑
  18.  See, e.g., 1 Curtis H. Lindley, A Treatise on the American Law Relating to Mines and Mineral Lands § 116 (San Francisco, Bancroft-Whitney Co. 1897) (discussing claims based on Mexican grants within the territory ceded by the Treaty of Guadalupe Hidalgo, and observing that “[m]ost of [the claimed grants] were inchoate—that is to say, something remained to be done to either perfect and establish the title or to fix the boundaries”); see also Tobin v. Walkinshaw, 23 F. Cas. 1338, 1342 (C.C.N.D. Cal. 1856) (No. 14,069) (defining “[t]he distinction between perfect and inchoate titles” in terms of whether “‘further action of the political authority’” is needed (quoting Hancock v. McKinney, 7 Tex. 384, 457 (1851) (opinion of Lipscomb, J.))). ↑
  19.  See, e.g., West v. Cochran, 58 U.S. (17 How.) 403, 413 (1855) (describing “the condition of claims to land derived from France and Spain, before the United States acquired Louisiana”); see also Snyder v. Sickles, 98 U.S. 203, 203 (1878) (“Titles to lands claimed by individuals in Louisiana at the time the province was ceded to the United States were in most cases incomplete, as the governor of the province never possessed the power to grant a patent. All he could do was to issue to the donee an instrument called a concession or order of survey, which never invested the party with a fee-simple title . . . .”); Menard’s Heirs v. Massey, 49 U.S. (8 How.) 293, 303–06 (1850) (similar). ↑
  20.  See United States v. Wiggins, 39 U.S. (14 Pet.) 334, 350 (1840) (observing that in Florida, “there were at the date of the [Adams-Onís] treaty very many claims, whose validity depended upon the performance of conditions in consideration of which the concessions had been made, and which must have been performed before Spain was bound to perfect the titles”). ↑
  21.  See, e.g., Bissell v. Penrose, 49 U.S. (8 How.) 317, 334 (1850) (referring to Spanish concessions in Upper Louisiana that had “designat[ed] some natural object only, such as the head or sources of a river, as the place where the tract should be located”); More v. Steinbach, 127 U.S. 70, 78 (1888) (noting that some Spanish and Mexican grants in California had referred to “lands known only by particular names, without any designated boundaries”). ↑
  22.  See Bissell, 49 U.S. (8 How.) at 334 (noting the prevalence of such floating grants in the former Louisiana territory); More, 127 U.S. at 78 (same with respect to California); cf. Scull v. United States, 98 U.S. 410, 419–20 (1879) (referring separately to “an inchoate or imperfect title” and “a perfected grant for an unknown location, or for a given quantity within defined out-boundaries,” but contrasting both with “a title completed under the foreign government”). ↑
  23.  In the early nineteenth century, for instance, Spain occupied the territory known as West Florida, but the United States took the position that Spain had ceded this territory to France (via the Treaty of St. Ildefonso in 1800) and that the United States had acquired it from France as part of the Louisiana Purchase. In accord with this position, the Supreme Court refused to recognize land grants purportedly made by Spain during its allegedly wrongful occupation. See, e.g., United States v. Reynes, 50 U.S. (9 How.) 127, 153–54 (1850). In 1860, though, Congress enacted a statute allowing the confirmation of claims based on such grants. See Act of June 22, 1860, ch. 188, 12 Stat. 85; see also United States v. Lynde, 78 U.S. (11 Wall.) 632, 634–47 (1871) (recounting history and observing that “the case of the claimants . . . must stand on the voluntary bounty of our government, exerted through its legislative department”). ↑
  24.  See Ablavsky, supra note 14, at 287. ↑
  25.  See id. at 294–95. ↑
  26.  See id. at 292. ↑
  27.  See id. at 293. ↑
  28.  See, e.g., Dent v. Emmeger, 81 U.S. (14 Wall.) 308, 312–13 (1872); Landes v. Brant, 51 U.S. (10 How.) 348, 370 (1851). ↑
  29.  Legal History Article of the Year Prize, William Nelson Cromwell Found., https://crom‌wellfoundation.org/legal-history-article-of-the-year-prize/ [https://perma.cc/QU7H-PPFM] (last visited Jan. 24, 2026). ↑

  30.  There is already something of a debate about whether Professor Ablavsky’s research is contrary to mine. Compare Richard H. Fallon, Jr., Non-Article III Federal Tribunals: An Essay on the Relation Between Theory and Practice, 99 Notre Dame L. Rev. 1691, 1723–24 (2024) (taking there to be real disagreement), with Ann Woolhandler & Michael G. Collins, The Public/Private Rights Critics, 99 Notre Dame L. Rev. 1779, 1781–85 (2024) (arguing that Professor Ablavsky’s account tends to “confirm” rather than undermine the framework that I described), and Ilan Wurman, Nonexclusive Functions and Separation of Powers Law, 107 Minn. L. Rev. 735, 763 n.136 (2022) (asserting that “the distinction Ablavsky draws . . . tracks the [public/private] dichotomy exactly”). ↑

Disenfranchisement Creep

Under federal law, states decide whether people lose their voting rights as a result of criminal convictions or mental incapacity. But states vary widely in whether they take federal law up on that offer of exclusion. In one state, you may never lose the right to vote for a felony conviction; in another, you might be disenfranchised for life. Existing literature has explored many facets of disenfranchisement, from analyzing its impacts to proposing reforms. But it has largely overlooked the key role of state constitutions in limiting disenfranchisement.

Unlike the U.S. Constitution, which has no explicit voting rights guarantee, state constitutions both affirmatively grant the right to vote and list explicit, enumerated exceptions to that right. But state actors routinely overstep those bounds—a practice this Article refers to as “disenfranchisement creep.” Based on original analysis of all fifty state constitutions and the complex network of statutes, regulations, and practices that together constitute state disenfranchisement law, this Article identifies two primary ways in which state actors disenfranchise people beyond the scope of state constitutions. First, state actors explicitly disenfranchise groups of people beyond what the constitutional texts seemingly allow. This Article newly identifies this phenomenon as de jure disenfranchisement creep. Second, state actors impose myriad burdens, large and small, that effectively disenfranchise those who supposedly have the right to vote. This Article newly explores this de facto disenfranchisement creep through the lens of state constitutions, concluding that it often violates existing voting rights guarantees. In identifying both types of overreaches, this Article offers an underexplored approach to reining in disenfranchisement: state constitutional claims in state court.

Introduction

The right to vote is not uniform across the United States. In one state, you might need to show a voter ID at the polls; in another you do not.1 1.See Marni Rose McFall, Map Shows Voter ID Laws by State, Newsweek (Sep. 9, 2024, at 12:04 ET), https://www.newsweek.com/map-shows-voter-id-laws-state-1950691.Show More In one, you can register to vote on Election Day; in another, you must register weeks in advance.2 2.See Aliss Higham, US Voter Registration Deadlines for All 50 States, Newsweek (May 26, 2024, at 04:00 ET), https://www.newsweek.com/us-voter-registration-deadline-all-50-sta‌tes-1904415.Show More But nowhere are the discrepancies more pronounced than on the basic question of who is eligible to vote to begin with.

Under federal law, states decide whether people lose their voting rights as a result of criminal convictions or determinations of mental incapacity to vote.3 3.See infra Section I.A.Show More And states vary widely in whether they take federal law up on that offer of exclusion. Only two states—Vermont and Maine—do not disenfranchise anyone for criminal convictions,4 4.Christopher Uggen, Ryan Larson, Sarah Shannon, Robert Stewart & Molly Hauf, The Sent’g Project, Locked Out 2024: Four Million Denied Voting Rights Due to a Felony Conviction 3–4 (2024), https://www.sentencingproject.org/reports/locked-out-2024-four-mil‌lion-denied-voting-rights-due-to-a-felony-conviction/ [https://perma.cc/3NST-VYB8]. The District of Columbia and the Commonwealth of Puerto Rico also do not restrict voting based on criminal convictions. Id. at 3.Show More and only a handful of states do not explicitly exclude anyone based on mental capacity.5 5.Sally Balch Hurme & Paul S. Appelbaum, Defining and Assessing Capacity to Vote: The Effect of Mental Impairment on the Rights of Voters, 38 McGeorge L. Rev. 931, 940 (2007) (“Of those twenty-eight states with no mental-status criteria in their election law provisions, eight have no constitutional mention of ineligibility due to mental status.”). However, guardianship laws in some of these states may nevertheless permit the removal of various rights, potentially including the right to vote. See id. at 980–1014.Show More Every other state disenfranchises people in one or both of these categories, and their reasons vary—Alaska’s constitution says that no person who has been “convicted of a felony involving moral turpitude” or is “of unsound mind” may vote;6 6.Alaska Const. art. V, § 2.Show More Michigan’s says that the legislature can enact laws disenfranchising individuals “because of mental incompetence or commitment to a jail or penal institution.”7 7.Mich. Const. art. II, § 2.Show More The combined result of this patchwork of laws is profound—in 2024, approximately four million adults in the United States were not allowed to vote due to criminal convictions,8 8.Uggen et al., supra note 4, at 2.Show More and tens or hundreds of thousands more were not allowed to vote due to determinations of mental incapacity.9 9.The number of people excluded from voting based on mental incapacity is not thoroughly tracked. According to one estimate, 32,000 Californians lost their right to vote based on mental capacity between 2008 and 2018. Matt Vasilogambros, Thousands Lose Right to Vote Under ‘Incompetence’ Laws, Stateline (Mar. 21, 2018, at 00:00 ET), https://st‌ateline.org/2018/03/21/thousands-lose-right-to-vote-under-incompetence-laws/ [https://perm‌a.cc/HS93-KMY3]. Nationwide, the number of adults living under guardianship or conservatorship was estimated to be approximately 1.3 million as of 2018. Nat’l Council on Disability, Beyond Guardianship: Toward Alternatives That Promote Greater Self-Determination 65 (2018), https://www.ncd.gov/assets/uploads/reports/2018/ncd_beyond_gua‌rdianship.pdf [https://perma.cc/AN8S-AMSE]. However, “[t]his estimate is based on the handful of states that do track and report reasonably reliable data on guardianships,” and it does not provide information about how many of those under guardianship are ineligible to vote. Id.; see also Jim Berchtold, Just. in Aging, Guardianship Data Reform 1 (2024), http‌s://justiceinaging.org/guardianship-data-reform/ [https://perma.cc/TE9R-ZNJD] (“Detailed data on guardianship is almost nonexistent and even basic information is largely unknown.”).Show More

The current landscape of disenfranchisement in the United States has made it an outlier in the international community and drawn widespread critiques and calls for reform.10 10.See Laleh Ispahani, ACLU, Out of Step with the World: An Analysis of Felony Disenfranchisement in the U.S. and Other Democracies 4 (2006), https://www.aclu.org/sites/‌default/files/pdfs/votingrights/outofstep_20060525.pdf [https://perma.cc/7X26-QG3R].Show More Sociologists, for example, have highlighted the predominantly racist origins and racially disparate impact of many crime-based disenfranchisement laws.11 11.Uggen et al., supra note 4, at 2 (“Among the adult African American population, 4.5% is disenfranchised compared to 1.3% of the adult non-African American population.”); Angela Behrens, Christopher Uggen & Jeff Manza, Ballot Manipulation and the “Menace of Negro Domination”: Racial Threat and Felon Disenfranchisement in the United States, 1850–2002, 109 Am. J. Socio. 559, 559 (2003) (“Many felon voting bans were passed in the late 1860s and 1870s, when implementation of the Fifteenth Amendment and its extension of voting rights to African-Americans were ardently contested.”); Jeff Manza & Christopher Uggen, Locked Out: Felon Disenfranchisement and American Democracy 68 (2006) [hereinafter Manza & Uggen, Locked Out] (concluding based on statistical analysis that felon disenfranchisement “has to be viewed as one of the many side effects of the peculiar history of racial politics in the United States”); see also John Dinan, The Adoption of Criminal Disenfranchisement Provisions in the United States: Lessons from the State Constitutional Convention Debates, 19 J. Pol’y Hist. 282, 284 (2007) (“[S]cholars and litigants have argued that these [criminal disenfranchisement] provisions might have been motivated by a desire to reduce the voting power of African Americans, who are generally affected by these policies to a disproportionate extent.”).Show More Political scientists, sociologists, and legal scholars have debated whether anyone should be disenfranchised based on cognitive capacity or criminal convictions.12 12.For arguments against disenfranchisement, see, e.g., Elizabeth R. Schiltz, The Ties That Bind Idiots and Infamous Criminals: Disenfranchisement of Persons with Cognitive Impairments, 13 U. St. Thomas L.J. 100, 117 (2016) (questioning the presumption “that mental incapacity is a legitimate reason to deny[] a person the right to vote at all”); Boris Feldman, Note, Mental Disability and the Right to Vote, 88 Yale L.J. 1644, 1645 (1979) (arguing that “states should not disfranchise any persons on the grounds of mental disability”); Debra Parkes, Ballot Boxes Behind Bars: Toward the Repeal of Prisoner Disenfranchisement Laws, 13 Temp. Pol. & C.R. L. Rev. 71, 74 (2003) (arguing that “the ballot box should be opened to all prisoners in the United States”); Carlos M. Portugal, Note, Democracy Frozen in Devonian Amber: The Racial Impact of Permanent Felon Disenfranchisement in Florida, 57 U. Mia. L. Rev. 1317, 1338 (2003) (“[F]elon disenfranchisement is anachronistic.”); Mandeep K. Dhami, Prisoner Disenfranchisement Policy: A Threat to Democracy?, 5 Analyses Soc. Issues & Pub. Pol’y 235, 239–40 (2005) (critiquing common rationales for crime-related disenfranchisement); Pamela S. Karlan, Convictions and Doubts: Retribution, Representation, and the Debate over Felon Disenfranchisement, 56 Stan. L. Rev. 1147, 1149 (2004) [hereinafter Karlan, Convictions and Doubts] (“Once voting is understood as a fundamental right, rather than as a state-created privilege, the essentially punitive nature of criminal disenfranchisement statutes becomes undeniable.”); Note, The Disenfranchisement of Ex-Felons: Citizenship, Criminality, and “The Purity of the Ballot Box,” 102 Harv. L. Rev. 1300, 1301–09 (1989) (arguing that the policy and theoretical rationales for criminal disenfranchisement fail to justify the practice); George P. Fletcher, Disenfranchisement as Punishment: Reflections on the Racial Uses of Infamia, 46 UCLA L. Rev. 1895, 1898 (1999) (critiquing “political disenfranchisement as a technique for reinforcing the branding of felons as the untouchable class of American society”); Alec C. Ewald, “Civil Death”: The Ideological Paradox of Criminal Disenfranchisement Law in the United States, 2002 Wis. L. Rev. 1045, 1049 (arguing that “the modern commitments of both liberalism and republicanism should lead Americans to abandon the practice” of felon disenfranchisement). For arguments to the contrary, see, e.g., Roger Clegg, George T. Conway III & Kenneth K. Lee, The Case Against Felon Voting, 2 U. St. Thomas J.L. & Pub. Pol’y 1, 2 (2008) (“[A]llowing felons to vote is simply problematic both as a legal and a policy matter.”); George Brooks, Felon Disenfranchisement: Law, History, Policy, and Politics, 32 Fordham Urb. L.J. 851, 899 (2005) (“Felon disenfranchisement is plainly constitutional and consistent with the intent of the framers of both the Fourteenth Amendment and the Voting Rights Act.”); Mary Sigler, Defensible Disenfranchisement, 99 Iowa L. Rev. 1725, 1728 (2014) (“[O]ffenders who commit serious felonies are subject to regulatory disenfranchisement because they have violated the civic trust that makes liberal democracy possible.”).Show More Other scholars have meanwhile examined the underappreciated impacts of disenfranchisement laws. Professors Beth Colgan, Michael Morse, and Marc Meredith, for example, have analyzed and critiqued the impact of what Colgan calls “wealth-based penal disenfranchisement”—the widespread practice of requiring individuals involved in the criminal legal system to pay all fines, court costs, fees, and restitution amounts before they can regain the right to vote.13 13.Beth A. Colgan, Wealth-Based Penal Disenfranchisement, 72 Vand. L. Rev. 55, 60 (2019) (explaining that “wealth-based penal disenfranchisement is sanctioned under the laws of forty-eight states and the District of Columbia, potentially preventing up to a million people or more from voting” (footnote omitted)); Marc Meredith & Michael Morse, Discretionary Disenfranchisement: The Case of Legal Financial Obligations, 46 J. Legal Stud. 309, 310–12, 323–24 (2017) (collecting data on “legal financial obligations” that can burden the right to vote even after sentence completion).Show More Additionally, many scholars have highlighted possible paths to disenfranchisement reform, including litigation in federal court, executive pardons on a widespread basis, and state or federal legislation.14 14.Lily Verbeck, Note, A Class Left Behind: An Assessment of State Voter Competency Laws and the Disenfranchisement of People with Mental Disabilities, 32 Geo. Mason U. C.R. L.J. 149, 151–52 (2022) (arguing that “courts should strike down general prohibition incompetency laws” and that “laws that allow judges to decide an individual’s capacity to vote should implement a clear and convincing evidence standard”); Neil L. Sobol, Defeating De Facto Disenfranchisement of Criminal Defendants, 75 Fla. L. Rev. 287, 335–55 (2023) (identifying legislative, regulatory, and other mechanisms to address de facto disenfranchisement); Christian A. Johnson, Disenfranchisement, Voter Disqualifications, and Felony Convictions: Searching for State Law Uniformity, 32 Widener Commonwealth L. Rev. 35, 36 (2023) (arguing for greater uniformity in disenfranchisement laws across states); Christopher R. Murray, Note, Felon Disenfranchisement in Alaska and the Voting Rights Act of 1965, 23 Alaska L. Rev. 289, 290 (2006) (examining the validity of disenfranchisement laws under the Voting Rights Act); Manza & Uggen, Locked Out, supra note 11, at 227–28 (identifying “legislative change as the most likely source of policy change” for felon disenfranchisement); Amanda J. Wong, Note, Locked Up, Then Locked Out: The Case for Legislative—Rather than Executive—Felon Disenfranchisement Reform, 104 Corn. L. Rev. 1679, 1684–85 (2019) (surveying state gubernatorial re-enfranchisement actions and encouraging Congress to address disenfranchisement reform); Manoj Mate, Felony Disenfranchisement and Voting Rights Restoration in the States, 22 Nev. L.J. 967, 999–1003 (2022) (providing both short- and long-term strategies for ending felony disenfranchisement, including improved administrative processes, state and federal legislation, reshaping the federal judiciary, and federal constitutional amendment); John R. Cosgrove, Four New Arguments Against the Constitutionality of Felony Disenfranchisement, 26 T. Jefferson L. Rev. 157, 158, 175–95 (2004) (calling for lawyers to raise federal constitutional arguments against felony disenfranchisement); Daniel M. Katz, Article I, Section 4 of the Constitution, The Voting Rights Act, and Restoration of the Congressional Portion of the Election Ballot: The Final Frontier of Felon Disenfranchisement Jurisprudence?, 10 U. Pa. J.L. & Soc. Change 47, 50 (2007) (arguing that the Voting Rights Act is “the proper mechanism to invalidate disenfranchisement statutes”); see also Pamela S. Karlan, Framing the Voting Rights Claims of Cognitively Impaired Individuals, 38 McGeorge L. Rev. 917, 927–30 (2007) (discussing current statutory shortcomings); Hurme & Appelbaum, supra note 5, at 960–74 (formulating a standard for assessing capacity to vote); Richard M. Re & Christopher M. Re, Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments, 121 Yale L.J. 1584, 1587–92 (2012) (discussing the promise and limits of claims under the Federal Constitution and the Voting Rights Act); Gabriel J. Chin, Reconstruction, Felon Disenfranchisement, and the Right to Vote: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth Amendment?, 92 Geo. L.J. 259, 263 (2004) (arguing for courts to reconsider the constitutionality of felony disenfranchisement).Show More

But existing literature has largely overlooked an important piece of the disenfranchisement landscape: state constitutions. State constitutions have the potential to play a key role in setting the limits of disenfranchisement via state court litigation.15 15.Cf. Nora V. Demleitner, Criminal Disenfranchisement in State Constitutions: A Marker of Exclusion, Punitiveness, and Fragile Citizenship, 26 Lewis & Clark L. Rev. 531, 533–34 (2022) (“[M]ost of the research on felon disenfranchisement focuses on the combined effect of state laws and constitutions without disaggregating the two different sources of law.”). Professor Nora Demleitner’s article “focuses on the current role of state constitutions in signaling the fragility of citizenship” and largely argues for state constitutional change rather than exploring the existing limits of state constitutions. Id. at 534, 536. Professors Sally Balch Hurme and Paul Appelbaum have also teased out state constitutional provisions from other laws in the context of mental capacity to vote, but their account is primarily descriptive and does not fully explore the ways in which states are overstepping these bounds. See Hurme & Appelbaum, supra note 5, at 934–36.Show More The literature on possible litigation-based reforms has focused almost exclusively on federal law, including the Voting Rights Act, the Equal Protection Clause, and the Eighth Amendment’s ban on cruel and unusual punishment.16 16.See, e.g., Re & Re, supra note 14, at 1663–68 (Voting Rights Act); Katz, supra note 14, at 48–50, 48 n.10 (Voting Rights Act); Chin, supra note 14, at 272–81 (Section 2 of the Fourteenth Amendment and the Fifteenth Amendment); Sobol, supra note 14, at 330–33 (Equal Protection Clause); Karlan, Convictions and Doubts, supra note 12, at 1164–69 (Eighth Amendment); Pamela A. Wilkins, The Mark of Cain: Disenfranchised Felons and the Constitutional No Man’s Land, 56 Syracuse L. Rev. 85, 88 (2005) (Eighth Amendment).Show More But lawsuits bringing these federal claims have been largely unsuccessful;17 17.SeeWong, supranote 14, at 1691–92; Meredith & Morse, supranote 13, at 316; Katz, supra note 14, at 49.Show More federal courts have repeatedly given states wide latitude to disenfranchise anyone convicted of a crime or deemed to be mentally incapable of voting.18 18.See infra Section I.A.Show More

In contrast, state constitutions enumerate specific permissible grounds for disenfranchisement that are typically narrower than the wide latitude afforded by federal law.19 19.See infra Section I.B.Show More And they provide far more robust provisions on the right to vote. Whereas the U.S. Constitution contains no explicit guarantee of the right to vote, every state constitution contains a voting rights provision.20 20.See Joshua A. Douglas, The Right to Vote Under State Constitutions, 67 Vand. L. Rev. 89, 101–02 (2014) [hereinafter Douglas, The Right to Vote]; see also infra notes 53–54 (discussing amendments since 2014).Show More Many also contain free and fair elections clauses21 21.See Douglas, The Right to Vote, supra note 20, at 103.Show More and other provisions that evince overarching commitments to “popular sovereignty, majority rule, and political equality,” which Professors Miriam Seifter and Jessica Bulman-Pozen have termed the “democracy principle.”22 22.Jessica Bulman-Pozen & Miriam Seifter, The Democracy Principle in State Constitutions, 119 Mich. L. Rev. 859, 864 (2021) (emphasis omitted); see also Joshua A. Douglas, The Power of the Electorate Under State Constitutions, 76 Fla. L. Rev. 1679, 1687 (2024) [hereinafter Douglas, The Power of the Electorate] (“The combination of clauses that confer special rights and protections on voters reveals a multilayered right to vote under state constitutions.”).Show More These unique documents thus offer a starkly different lens through which to assess the legality of disenfranchisement schemes—one that in many instances is far more rights-protective than federal law.

Applying this lens to existing disenfranchisement schemes reveals serious shortcomings and attendant opportunities for state court litigation. Based on original analysis of all fifty state constitutions and the complex network of statutes, regulations, and practices that together constitute state disenfranchisement law, this Article finds that, in state after state, governmental actors and institutions arguably overstep the bounds of their state constitutions. The result is a phenomenon that this Article refers to as “disenfranchisement creep”—the practice of state actors denying more people the vote than the state constitution allows.23 23.The concept of disenfranchisement creep is not necessarily limited to the realms of criminal and competency-related disenfranchisement. For example, where states perpetuate misinformation about voter identification requirements, these practices may similarly amount to a type of de facto disenfranchisement creep. This Article, however, only focuses on disenfranchisement creep in the context of the two areas of criminal and competency-related disenfranchisement, given their unique status in federal law as permissible grounds for disenfranchisement.Show More These failures manifest in two primary ways: de jure disenfranchisement creep and de facto disenfranchisement creep. Each offers a set of possible state constitutional claims to remedy them.

First, state actors in a series of states appear to be overstepping the bounds of their state constitutions by explicitly disenfranchising groups of people beyond the grounds listed in their constitutions. For example, the Missouri Constitution provides that “persons convicted of felony, or crime connected with the exercise of the right of suffrage may be excluded by law from voting.”24 24. Mo. Const. art. VIII, § 2.Show More But state law also disenfranchises anyone who is incarcerated for any type of misdemeanor—without any apparent constitutional authorization to do so.25 25.Mo. Rev. Stat. § 115.133(2)(1) (2025); see also Know Your Rights, Mo. State Pub. Def., https://publicdefender.mo.gov/know-your-rights/ [https://perma.cc/FUJ2-CXF4] (last visited Apr. 7, 2026) (explaining that individuals “currently imprisoned for a crime for which [they] have been convicted (felony or misdemeanor)” are not eligible to vote in Missouri).Show More This Article newly identifies this phenomenon of de jure disenfranchisement creep. Such overreaches—whether legislative or bureaucratic—can be challenged via relatively straightforward constitutional claims regarding the meaning of specific state constitutional terms or provisions. For example, is the legislature’s statutory definition of the constitutional term “felony involving moral turpitude” overbroad? Or, when a constitution provides that the legislature may disenfranchise those convicted of “infamous crimes,” can it also disenfranchise those convicted of non-infamous crimes?

Second, state actors routinely impose myriad burdens, large and small, that lead to de facto disenfranchisement of those who supposedly have the right to vote. For example, ahead of the 2024 general election in New Mexico, election officials repeatedly denied online voter registration applications from those who had previously been convicted of felonies—despite the fact that the state had enacted a law allowing anyone convicted of a felony to vote as long as they were no longer incarcerated.26 26.Lauren Gill, “A Year of Frustration”: How New Mexico Kept Denying People Voting Rights Despite Reform, Bolts (Oct. 29, 2024), https://boltsmag.org/voting-rights-restoration-‌reform-in-new-mexico/ [https://perma.cc/4QTT-5QLS].Show More Many of these individuals understandably assumed based on their rejected applications that they were not in fact eligible to vote.27 27.Id.; see also infra text accompanying notes 243–50.Show More This phenomenon of de facto disenfranchisement creep has been explored elsewhere, including by Professors Jessie Allen and Neil Sobol,28 28.See Jessie Allen, Documentary Disenfranchisement, 86 Tul. L. Rev. 389, 414 (2011); Sobol, supra note 14, at 292; see also Emily Rong Zhang, New Tricks for an Old Dog: Deterring the Vote Through Confusion in Felon Disenfranchisement, 84 Mo. L. Rev. 1037, 1039–40 (2019) (“As reforms slowly erode outright bans on voting for large swathes of the population, felon disenfranchisement laws increasingly suppress voting by confusing eligible voters.”).Show More but it has not been fully explored through the lens of state constitutional rights. Indeed, the obstacles at the federal level to claims based on de facto disenfranchisement have led scholars to advocate for legislation, rather than litigation, as a tool of reform.29 29.See, e.g., Sobol, supra note 14, at 330–55.Show More But state constitutions offer a potentially powerful and underutilized tool for challenging these practices. This is because those facing de facto disenfranchisement creep technically have the right to vote under their state constitutions, and many state courts take a far more robust approach to protecting voting rights than their federal counterparts. Therefore, if de facto disenfranchisement practices are unduly impinging on the right to vote, such as in the New Mexico example described above,30 30.See supra text accompanying note 26.Show More impacted individuals may be able to vindicate that claim in state court and seek affirmative changes in state practices to better facilitate their voting rights.

This state constitutional framework certainly has limits—in particular, it cannot be used to eradicate disenfranchisement where a state constitution expressly condones it. But it does offer a potentially powerful way to challenge the pervasive practices of disenfranchisement creep, requiring states to live up to their core democratic commitments for those who should not be excluded even under existing constitutional provisions.

Part I begins with a brief overview of the federal and state constitutional frameworks for disenfranchisement. Although federal law sets some guardrails around who states can or cannot exclude, it largely allows states to determine how or whether to disenfranchise anyone based on cognitive capacity or a criminal conviction. At the state level, state constitutions then further delineate who can or cannot be excluded from voting, coupling broad grants of the right to vote with specific, enumerated exclusions. Taken together, these state constitutional provisions offer a roadmap for understanding state voting rights: every citizen-resident of a certain age is entitled to vote, unless they are validly excluded under the state constitution’s specific exceptions.

Applying this framework to existing practices, Part II outlines the first set of violations discussed above: de jure disenfranchisement creep. De jure disenfranchisement creep occurs in three primary ways: first, state statutes disenfranchise groups beyond those mentioned in the state constitution; second, state actors define or apply a constitutional term in an overbroad way; or third, state actors define or apply a constitutional term in an inconsistent way. This Part first identifies and provides examples of this phenomenon and then turns to the viability of state constitutional claims in state court as a way to rein in these practices.

Part III outlines the second set of violations discussed above: de facto disenfranchisement creep. In particular, it focuses on two ways state actors deny or suppress the right to vote of those involved in criminal or competency proceedings: first, some state actors directly deny the right to vote to those who technically retain it, such as by improperly turning someone away from the polls or denying a voter’s registration application; second, some state actors deter individuals from voting or chill the right to vote, such as by perpetuating misinformation or failing to inform voters of their rights. After providing examples of these types of failings, this Part again turns to state constitutions as a tool for reining in practices perpetuating de facto disenfranchisement creep.

  1.  See Marni Rose McFall, Map Shows Voter ID Laws by State, Newsweek (Sep. 9, 2024, at 12:04 ET), https://www.newsweek.com/map-shows-voter-id-laws-state-1950691. ↑
  2.  See Aliss Higham, US Voter Registration Deadlines for All 50 States, Newsweek (May 26, 2024, at 04:00 ET), https://www.newsweek.com/us-voter-registration-deadline-all-50-sta‌tes-1904415. ↑
  3.  See infra Section I.A. ↑
  4.  Christopher Uggen, Ryan Larson, Sarah Shannon, Robert Stewart & Molly Hauf, The Sent’g Project, Locked Out 2024: Four Million Denied Voting Rights Due to a Felony Conviction 3–4 (2024), https://www.sentencingproject.org/reports/locked-out-2024-four-mil‌lion-denied-voting-rights-due-to-a-felony-conviction/ [https://perma.cc/3NST-VYB8]. The District of Columbia and the Commonwealth of Puerto Rico also do not restrict voting based on criminal convictions. Id. at 3. ↑
  5.  Sally Balch Hurme & Paul S. Appelbaum, Defining and Assessing Capacity to Vote: The Effect of Mental Impairment on the Rights of Voters, 38 McGeorge L. Rev. 931, 940 (2007) (“Of those twenty-eight states with no mental-status criteria in their election law provisions, eight have no constitutional mention of ineligibility due to mental status.”). However, guardianship laws in some of these states may nevertheless permit the removal of various rights, potentially including the right to vote. See id. at 980–1014. ↑
  6.  Alaska Const. art. V, § 2. ↑
  7.  Mich. Const. art. II, § 2. ↑
  8.  Uggen et al., supra note 4, at 2. ↑
  9.  The number of people excluded from voting based on mental incapacity is not thoroughly tracked. According to one estimate, 32,000 Californians lost their right to vote based on mental capacity between 2008 and 2018. Matt Vasilogambros, Thousands Lose Right to Vote Under ‘Incompetence’ Laws, Stateline (Mar. 21, 2018, at 00:00 ET), https://st‌ateline.org/2018/03/21/thousands-lose-right-to-vote-under-incompetence-laws/ [https://perm‌a.cc/HS93-KMY3]. Nationwide, the number of adults living under guardianship or conservatorship was estimated to be approximately 1.3 million as of 2018. Nat’l Council on Disability, Beyond Guardianship: Toward Alternatives That Promote Greater Self-Determination 65 (2018), https://www.ncd.gov/assets/uploads/reports/2018/ncd_beyond_gua‌rdianship.pdf [https://perma.cc/AN8S-AMSE]. However, “[t]his estimate is based on the handful of states that do track and report reasonably reliable data on guardianships,” and it does not provide information about how many of those under guardianship are ineligible to vote. Id.; see also Jim Berchtold, Just. in Aging, Guardianship Data Reform 1 (2024), http‌s://justiceinaging.org/guardianship-data-reform/ [https://perma.cc/TE9R-ZNJD] (“Detailed data on guardianship is almost nonexistent and even basic information is largely unknown.”). ↑
  10.  See Laleh Ispahani, ACLU, Out of Step with the World: An Analysis of Felony Disenfranchisement in the U.S. and Other Democracies 4 (2006), https://www.aclu.org/sites/‌default/files/pdfs/votingrights/outofstep_20060525.pdf [https://perma.cc/7X26-QG3R]. ↑
  11.  Uggen et al., supra note 4, at 2 (“Among the adult African American population, 4.5% is disenfranchised compared to 1.3% of the adult non-African American population.”); Angela Behrens, Christopher Uggen & Jeff Manza, Ballot Manipulation and the “Menace of Negro Domination”: Racial Threat and Felon Disenfranchisement in the United States, 1850–2002, 109 Am. J. Socio. 559, 559 (2003) (“Many felon voting bans were passed in the late 1860s and 1870s, when implementation of the Fifteenth Amendment and its extension of voting rights to African-Americans were ardently contested.”); Jeff Manza & Christopher Uggen, Locked Out: Felon Disenfranchisement and American Democracy 68 (2006) [hereinafter Manza & Uggen, Locked Out] (concluding based on statistical analysis that felon disenfranchisement “has to be viewed as one of the many side effects of the peculiar history of racial politics in the United States”); see also John Dinan, The Adoption of Criminal Disenfranchisement Provisions in the United States: Lessons from the State Constitutional Convention Debates, 19 J. Pol’y Hist. 282, 284 (2007) (“[S]cholars and litigants have argued that these [criminal disenfranchisement] provisions might have been motivated by a desire to reduce the voting power of African Americans, who are generally affected by these policies to a disproportionate extent.”). ↑
  12.  For arguments against disenfranchisement, see, e.g., Elizabeth R. Schiltz, The Ties That Bind Idiots and Infamous Criminals: Disenfranchisement of Persons with Cognitive Impairments, 13 U. St. Thomas L.J. 100, 117 (2016) (questioning the presumption “that mental incapacity is a legitimate reason to deny[] a person the right to vote at all”); Boris Feldman, Note, Mental Disability and the Right to Vote, 88 Yale L.J. 1644, 1645 (1979) (arguing that “states should not disfranchise any persons on the grounds of mental disability”); Debra Parkes, Ballot Boxes Behind Bars: Toward the Repeal of Prisoner Disenfranchisement Laws, 13 Temp. Pol. & C.R. L. Rev. 71, 74 (2003) (arguing that “the ballot box should be opened to all prisoners in the United States”); Carlos M. Portugal, Note, Democracy Frozen in Devonian Amber: The Racial Impact of Permanent Felon Disenfranchisement in Florida, 57 U. Mia. L. Rev. 1317, 1338 (2003) (“[F]elon disenfranchisement is anachronistic.”); Mandeep K. Dhami, Prisoner Disenfranchisement Policy: A Threat to Democracy?, 5 Analyses Soc. Issues & Pub. Pol’y 235, 239–40 (2005) (critiquing common rationales for crime-related disenfranchisement); Pamela S. Karlan, Convictions and Doubts: Retribution, Representation, and the Debate over Felon Disenfranchisement, 56 Stan. L. Rev. 1147, 1149 (2004) [hereinafter Karlan, Convictions and Doubts] (“Once voting is understood as a fundamental right, rather than as a state-created privilege, the essentially punitive nature of criminal disenfranchisement statutes becomes undeniable.”); Note, The Disenfranchisement of Ex-Felons: Citizenship, Criminality, and “The Purity of the Ballot Box,” 102 Harv. L. Rev. 1300, 1301–09 (1989) (arguing that the policy and theoretical rationales for criminal disenfranchisement fail to justify the practice); George P. Fletcher, Disenfranchisement as Punishment: Reflections on the Racial Uses of Infamia, 46 UCLA L. Rev. 1895, 1898 (1999) (critiquing “political disenfranchisement as a technique for reinforcing the branding of felons as the untouchable class of American society”); Alec C. Ewald, “Civil Death”: The Ideological Paradox of Criminal Disenfranchisement Law in the United States, 2002 Wis. L. Rev. 1045, 1049 (arguing that “the modern commitments of both liberalism and republicanism should lead Americans to abandon the practice” of felon disenfranchisement). For arguments to the contrary, see, e.g., Roger Clegg, George T. Conway III & Kenneth K. Lee, The Case Against Felon Voting, 2 U. St. Thomas J.L. & Pub. Pol’y 1, 2 (2008) (“[A]llowing felons to vote is simply problematic both as a legal and a policy matter.”); George Brooks, Felon Disenfranchisement: Law, History, Policy, and Politics, 32 Fordham Urb. L.J. 851, 899 (2005) (“Felon disenfranchisement is plainly constitutional and consistent with the intent of the framers of both the Fourteenth Amendment and the Voting Rights Act.”); Mary Sigler, Defensible Disenfranchisement, 99 Iowa L. Rev. 1725, 1728 (2014) (“[O]ffenders who commit serious felonies are subject to regulatory disenfranchisement because they have violated the civic trust that makes liberal democracy possible.”). ↑
  13.  Beth A. Colgan, Wealth-Based Penal Disenfranchisement, 72 Vand. L. Rev. 55, 60 (2019) (explaining that “wealth-based penal disenfranchisement is sanctioned under the laws of forty-eight states and the District of Columbia, potentially preventing up to a million people or more from voting” (footnote omitted)); Marc Meredith & Michael Morse, Discretionary Disenfranchisement: The Case of Legal Financial Obligations, 46 J. Legal Stud. 309, 310–12, 323–24 (2017) (collecting data on “legal financial obligations” that can burden the right to vote even after sentence completion). ↑
  14.  Lily Verbeck, Note, A Class Left Behind: An Assessment of State Voter Competency Laws and the Disenfranchisement of People with Mental Disabilities, 32 Geo. Mason U. C.R. L.J. 149, 151–52 (2022) (arguing that “courts should strike down general prohibition incompetency laws” and that “laws that allow judges to decide an individual’s capacity to vote should implement a clear and convincing evidence standard”); Neil L. Sobol, Defeating De Facto Disenfranchisement of Criminal Defendants, 75 Fla. L. Rev. 287, 335–55 (2023) (identifying legislative, regulatory, and other mechanisms to address de facto disenfranchisement); Christian A. Johnson, Disenfranchisement, Voter Disqualifications, and Felony Convictions: Searching for State Law Uniformity, 32 Widener Commonwealth L. Rev. 35, 36 (2023) (arguing for greater uniformity in disenfranchisement laws across states); Christopher R. Murray, Note, Felon Disenfranchisement in Alaska and the Voting Rights Act of 1965, 23 Alaska L. Rev. 289, 290 (2006) (examining the validity of disenfranchisement laws under the Voting Rights Act); Manza & Uggen, Locked Out, supra note 11, at 227–28 (identifying “legislative change as the most likely source of policy change” for felon disenfranchisement); Amanda J. Wong, Note, Locked Up, Then Locked Out: The Case for Legislative—Rather than Executive—Felon Disenfranchisement Reform, 104 Corn. L. Rev. 1679, 1684–85 (2019) (surveying state gubernatorial re-enfranchisement actions and encouraging Congress to address disenfranchisement reform); Manoj Mate, Felony Disenfranchisement and Voting Rights Restoration in the States, 22 Nev. L.J. 967, 999–1003 (2022) (providing both short- and long-term strategies for ending felony disenfranchisement, including improved administrative processes, state and federal legislation, reshaping the federal judiciary, and federal constitutional amendment); John R. Cosgrove, Four New Arguments Against the Constitutionality of Felony Disenfranchisement, 26 T. Jefferson L. Rev. 157, 158, 175–95 (2004) (calling for lawyers to raise federal constitutional arguments against felony disenfranchisement); Daniel M. Katz, Article I, Section 4 of the Constitution, The Voting Rights Act, and Restoration of the Congressional Portion of the Election Ballot: The Final Frontier of Felon Disenfranchisement Jurisprudence?, 10 U. Pa. J.L. & Soc. Change 47, 50 (2007) (arguing that the Voting Rights Act is “the proper mechanism to invalidate disenfranchisement statutes”); see also Pamela S. Karlan, Framing the Voting Rights Claims of Cognitively Impaired Individuals, 38 McGeorge L. Rev. 917, 927–30 (2007) (discussing current statutory shortcomings); Hurme & Appelbaum, supra note 5, at 960–74 (formulating a standard for assessing capacity to vote); Richard M. Re & Christopher M. Re, Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments, 121 Yale L.J. 1584, 1587–92 (2012) (discussing the promise and limits of claims under the Federal Constitution and the Voting Rights Act); Gabriel J. Chin, Reconstruction, Felon Disenfranchisement, and the Right to Vote: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth Amendment?, 92 Geo. L.J. 259, 263 (2004) (arguing for courts to reconsider the constitutionality of felony disenfranchisement). ↑
  15.  Cf. Nora V. Demleitner, Criminal Disenfranchisement in State Constitutions: A Marker of Exclusion, Punitiveness, and Fragile Citizenship, 26 Lewis & Clark L. Rev. 531, 533–34 (2022) (“[M]ost of the research on felon disenfranchisement focuses on the combined effect of state laws and constitutions without disaggregating the two different sources of law.”). Professor Nora Demleitner’s article “focuses on the current role of state constitutions in signaling the fragility of citizenship” and largely argues for state constitutional change rather than exploring the existing limits of state constitutions. Id. at 534, 536. Professors Sally Balch Hurme and Paul Appelbaum have also teased out state constitutional provisions from other laws in the context of mental capacity to vote, but their account is primarily descriptive and does not fully explore the ways in which states are overstepping these bounds. See Hurme & Appelbaum, supra note 5, at 934–36. ↑
  16.  See, e.g., Re & Re, supra note 14, at 1663–68 (Voting Rights Act); Katz, supra note 14, at 48–50, 48 n.10 (Voting Rights Act); Chin, supra note 14, at 272–81 (Section 2 of the Fourteenth Amendment and the Fifteenth Amendment); Sobol, supra note 14, at 330–33 (Equal Protection Clause); Karlan, Convictions and Doubts, supra note 12, at 1164–69 (Eighth Amendment); Pamela A. Wilkins, The Mark of Cain: Disenfranchised Felons and the Constitutional No Man’s Land, 56 Syracuse L. Rev. 85, 88 (2005) (Eighth Amendment). ↑
  17.  See Wong, supra note 14, at 1691–92; Meredith & Morse, supra note 13, at 316; Katz, supra note 14, at 49. ↑
  18.  See infra Section I.A. ↑
  19.  See infra Section I.B. ↑
  20.  See Joshua A. Douglas, The Right to Vote Under State Constitutions, 67 Vand. L. Rev. 89, 101–02 (2014) [hereinafter Douglas, The Right to Vote]; see also infra notes 53–54 (discussing amendments since 2014). ↑
  21.  See Douglas, The Right to Vote, supra note 20, at 103. ↑
  22.  Jessica Bulman-Pozen & Miriam Seifter, The Democracy Principle in State Constitutions, 119 Mich. L. Rev. 859, 864 (2021) (emphasis omitted); see also Joshua A. Douglas, The Power of the Electorate Under State Constitutions, 76 Fla. L. Rev. 1679, 1687 (2024) [hereinafter Douglas, The Power of the Electorate] (“The combination of clauses that confer special rights and protections on voters reveals a multilayered right to vote under state constitutions.”). ↑
  23.  The concept of disenfranchisement creep is not necessarily limited to the realms of criminal and competency-related disenfranchisement. For example, where states perpetuate misinformation about voter identification requirements, these practices may similarly amount to a type of de facto disenfranchisement creep. This Article, however, only focuses on disenfranchisement creep in the context of the two areas of criminal and competency-related disenfranchisement, given their unique status in federal law as permissible grounds for disenfranchisement. ↑

  24. Mo. Const. art. VIII, § 2. ↑

  25.  Mo. Rev. Stat. § 115.133(2)(1) (2025); see also Know Your Rights, Mo. State Pub. Def., https://publicdefender.mo.gov/know-your-rights/ [https://perma.cc/FUJ2-CXF4] (last visited Apr. 7, 2026) (explaining that individuals “currently imprisoned for a crime for which [they] have been convicted (felony or misdemeanor)” are not eligible to vote in Missouri). ↑
  26.  Lauren Gill, “A Year of Frustration”: How New Mexico Kept Denying People Voting Rights Despite Reform, Bolts (Oct. 29, 2024), https://boltsmag.org/voting-rights-restoration-‌reform-in-new-mexico/ [https://perma.cc/4QTT-5QLS]. ↑
  27.  Id.; see also infra text accompanying notes 243–50. ↑
  28.  See Jessie Allen, Documentary Disenfranchisement, 86 Tul. L. Rev. 389, 414 (2011); Sobol, supra note 14, at 292; see also Emily Rong Zhang, New Tricks for an Old Dog: Deterring the Vote Through Confusion in Felon Disenfranchisement, 84 Mo. L. Rev. 1037, 1039–40 (2019) (“As reforms slowly erode outright bans on voting for large swathes of the population, felon disenfranchisement laws increasingly suppress voting by confusing eligible voters.”). ↑
  29.  See, e.g., Sobol, supra note 14, at 330–55. ↑
  30.  See supra text accompanying note 26. ↑

In Tribute: Frederick Schauer

IN TRIBUTE: PROFESSOR FREDERICK SCHAUER

FOREWORD ………………………………………………. Leslie Kendrick 1

ESSAYS

The Shaping of Information                                   John Allenbach
     Flow in Law and Life ……………………………… Richard Zeckhauser 4

First-, Second-, and Third-Order                       
     Reasons in Legal Institutions,
     with First Amendment Examples ……………. Mark Tushnet 27

A Wonderful Professional Relationship
     Surpassed Only by a Personal One ………….. Larry Alexander 52

Fred Schauer: A Truly
     Original Thinker ……………………………………. Jed S. Rakoff 66

Deepfakes, Photographs, and
     Trust in Evidence ………………………………….. Edward K. Cheng 74

Constitutional Acceptance
     in a Polarized Era ………………………………….. Amanda Shanor 86

Schauer’s Free Speech Comparativism ………… Adrienne Stone 99

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