Can Tennessee restore a felon's voting rights conditionally, and revoke them again if the felon falls behind on a payment plan for restitution, court costs, and child support?

Plain-English summary

In 2020, Rep. Curcio asked the AG whether Tennessee could move from its existing rule (a felon must pay all restitution, court costs, and child support before voting rights are restored) to a payment-plan rule (the felon enters a plan, the rights are restored, but the rights can be revoked if the felon falls behind on the plan). The AG's answer pointed to Sixth Circuit precedent and said: probably yes on both halves, but design the statute carefully.

The starting point is Richardson v. Ramirez, 418 U.S. 24 (1974), which says states can constitutionally disenfranchise convicted felons. Tennessee did. § 40-20-112. Then comes Johnson v. Bredesen, 624 F.3d 742 (6th Cir. 2010), which upheld Tennessee's then-rule conditioning re-enfranchisement on payment of restitution and child support. The Sixth Circuit reasoned that once a felon has lost the right to vote, restoration is a privilege the state can attach almost any rational condition to. Wealth-based distinctions get only rational-basis review because economic status is not a suspect class.

Building on that framework, the AG concluded:

1. Requiring a payment plan as a condition of restoration is almost certainly constitutional. The state interests in promoting child support, requiring criminals to satisfy sentences, and enforcing court orders, are the same interests Johnson approved.
2. Revoking the restored right for failure to follow the plan is more legally novel. Two complications mattered. First, once a right is restored, a later revocation might escape rational-basis review and trigger the strict scrutiny that normally applies to voting-rights restrictions. Dunn v. Blumstein, 405 U.S. 330 (1972). Second, the indigency-versus-willful-failure distinction has not been squarely litigated for voter restoration in this context.
3. Three statutory features would put a payment-plan revocation scheme on firmer constitutional footing: explicitly making the restoration provisional and conditional on plan adherence (so revocation looks like continuation of the original disenfranchisement, not a new deprivation); accounting for indigency; and giving the felon a hearing before a neutral court to prove indigency and good faith before any revocation.

The opinion uses Washington state's payment-plan structure (Wash. Rev. Code Ann. § 29A.08.520) as a model that already builds in those protections. It also flags Bearden v. Georgia, 461 U.S. 660 (1983), as the Supreme Court doctrine on whether ability to pay matters in revocation contexts, and Mathews v. Eldridge, 424 U.S. 319 (1976), as the procedural-due-process framework that any revocation hearing would have to satisfy.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

In particular, the underlying field of felony-disenfranchisement litigation has continued to evolve in the Sixth and Eleventh Circuits, the Supreme Court has not directly addressed the indigency-and-revocation question the AG flagged, and Tennessee's voter-restoration administrative process has been the subject of further state-level litigation. Anyone advising on a current proposal must read the most recent statutes, current case law, and any newer AG opinions on this subject.

Common questions

Q: What did Tennessee's voter-restoration law require as of February 2020?
A: Under Tenn. Code Ann. § 40-29-202(a), a felon could apply for restoration only after a pardon, full discharge, or certificate of final discharge. Subsections (b) and (c) added three more conditions: paying all restitution to victims, paying all court costs (unless the court found indigency), and remaining current on child-support obligations. Restoration could not happen until those financial preconditions were satisfied.

Q: How does Johnson v. Bredesen fit in?
A: Johnson upheld Tennessee's full-payment preconditions in 2010. The Sixth Circuit said wealth-based distinctions in re-enfranchisement get only rational-basis review, and the state interests (child-support compliance, satisfaction of sentences, court-order enforcement) easily passed that test. Johnson is the controlling Sixth Circuit precedent that any new Tennessee voter-restoration legislation has to live with.

Q: Why might revocation be different from initial restoration?
A: Because once a right has been restored, a later revocation may be reviewed as a deprivation of a fundamental right rather than as a denial of a privilege. The AG flagged this without deciding it, citing Dunn v. Blumstein. The legislative drafting tip was to label the restoration "provisional" and tie revocation explicitly to a condition (payment-plan adherence), so any revocation reads as the continuing operation of the original disenfranchisement, not a fresh deprivation.

Q: Does the Constitution require Tennessee to consider whether the felon is too poor to pay?
A: The Sixth Circuit said no in Johnson, and the AG took that as the controlling answer for Tennessee. But other courts have suggested otherwise, and the AG noted that an indigency carve-out would make a revocation scheme more defensible. Bearden v. Georgia (revocation of probation for nonpayment) is the most-cited Supreme Court framework.

Q: What due process is owed before revocation?
A: The AG cited Mathews v. Eldridge but didn't draft specifics. The opinion's recommended floor was a hearing before a neutral court at which the felon could prove indigency and good faith.

Q: What does Washington state do?
A: Washington's statute "provisionally restores" voting rights when a felon enters a payment plan, and lets the sentencing court revoke the provisional right for non-compliance. The AG cited the structure as one that builds in the explicit-provisional-status feature.

Q: Does any of this apply to other civil rights, like jury service?
A: No. The opinion is limited to voting rights. Tennessee restores other civil rights (jury service, holding office, possession of firearms in some categories) under different statutory schemes.

Background and statutory framework

Tennessee disenfranchises convicted felons under Tenn. Code Ann. § 40-20-112 and § 2-2-102. The Supreme Court approved this kind of state action in Richardson v. Ramirez, 418 U.S. 24 (1974). Restoration is governed by § 40-29-202: the felon must first satisfy one of the threshold conditions in subsection (a) (pardon, discharge, or certificate of final discharge), then meet the financial preconditions in subsections (b) and (c) (restitution, court costs except for indigency, and current child support).

The Sixth Circuit upheld those financial preconditions in Johnson v. Bredesen, 624 F.3d 742 (6th Cir. 2010). Plaintiffs challenged the law as a violation of equal protection, the Privileges and Immunities Clause, the Twenty-Fourth Amendment, and the Ex Post Facto Clauses. The court applied rational-basis review and found three valid state interests: promoting child-support payment, requiring criminals to fulfill their sentences, and encouraging compliance with court orders. The court treated wealth-based distinctions as not implicating a suspect class. The Ninth Circuit reached a similar conclusion in Harvey v. Brewer, 605 F.3d 1067 (9th Cir. 2010), in an opinion by Justice O'Connor sitting by designation.

The newer doctrinal questions the AG flagged came from cases like Jones v. DeSantis, 410 F. Supp. 3d 1284 (N.D. Fla. 2019), aff'd per curiam, 2020 WL 829347 (11th Cir. Feb. 19, 2020), which dealt with Florida's Amendment 4. The Eleventh Circuit suggested that wealth barriers to ending a punishment of disenfranchisement might face heightened scrutiny once the state has opened a path. The Ninth Circuit's Harvey opinion had also flagged, in dicta, that withholding voting rights from those truly unable to pay might fail rational-basis review, although Harvey itself did not need to decide.

Bearden v. Georgia, 461 U.S. 660 (1983), holds that a court cannot revoke probation for failure to pay a fine without first inquiring whether the failure was willful. Mathews v. Eldridge, 424 U.S. 319 (1976), supplies the standard procedural-due-process balancing test (private interest, risk of erroneous deprivation, government interest). The AG's suggested design (provisional language, indigency carve-out, neutral-court hearing) maps onto those two doctrines.

The AG's analysis is descriptive and predictive: under existing precedent, payment-plan restoration with revocation looks defensible, but several questions remain unresolved, so a cautious draft is the safer course.

Citations

• Tenn. Code Ann. § 40-20-112; § 2-2-102
• Tenn. Code Ann. § 40-29-202(a), (b), (c)
• 2010 Tenn. Pub. Acts, ch. 1115, § 1
• Wash. Rev. Code Ann. § 29A.08.520
• Richardson v. Ramirez, 418 U.S. 24 (1974)
• Johnson v. Bredesen, 624 F.3d 742 (6th Cir. 2010)
• Harvey v. Brewer, 605 F.3d 1067 (9th Cir. 2010)
• Dunn v. Blumstein, 405 U.S. 330 (1972)
• Jones v. DeSantis, 410 F. Supp. 3d 1284 (N.D. Fla. 2019), aff'd per curiam, 2020 WL 829347 (11th Cir. 2020)
• Madison v. State, 163 P.3d 757 (Wash. 2007) (en banc)
• Bearden v. Georgia, 461 U.S. 660 (1983)
• Mathews v. Eldridge, 424 U.S. 319 (1976)

Subject

Restoration of Voting Rights

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2020/op20-02.pdf

Original opinion text

February 25, 2020
Opinion No. 20-02

Restoration of Voting Rights

Question
Would a law restoring the voting rights of convicted felons who have entered into a payment plan for restitution, child support, and court costs be constitutionally suspect if it also provided for the revocation of those restored voting rights when a convicted felon fails to abide by the terms of the payment plan?

Opinion
Based on existing precedent from the Sixth Circuit Court of Appeals, the legislature may require, as a condition of the restoration of the voting rights of a convicted felon, that the convicted felon enter into a payment plan for satisfying existing financial obligations. And the principles on which that precedent rests suggest that the legislature may restore convicted felons' voting rights only provisionally, subject to subsequent revocation for failure to pay in accordance with the payment plan. An argument can be made that subsequent revocation for failure to pay need not take indigency to account in order to pass constitutional muster, but no court has directly addressed that question. Nor has any court squarely addressed what procedural protections would be required for a subsequent revocation for failure to abide by the terms of a payment plan. Because those questions remain unresolved, a statutory scheme that (1) explicitly makes the restoration of voting rights provisional and conditional on adherence to the terms of the payment plan, (2) accounts for indigency, and (3) allows convicted felons facing subsequent revocation of restored voting rights for failure to abide by the payment plan to prove their indigency and good faith to a neutral court would be on firmer constitutional footing than a statute that did not include those provisions.

ANALYSIS

In Tennessee, an individual convicted of a felony is "immediately disqualified from exercising the right of suffrage." Tenn. Code Ann. § 40-20-112; see id. § 2-2-102; see also Richardson v. Ramirez, 418 U.S. 24, 54 (1974) (holding that a State may, consistent with the Constitution, revoke the right of convicted felons to vote). Convicted felons who have been disenfranchised in Tennessee may apply to have their voting rights reinstated only after receiving (1) a pardon; (2) a discharge from custody after serving the maximum sentence imposed by the court; or (3) a certificate of final discharge from the board of parole or an equivalent federal, state, or county authority. Tenn. Code Ann. § 40-29-202(a).

Subsections 40-29-202(b) and 202(c) impose three additional preconditions to the restoration of convicted felons' voting rights. Convicted felons who have met the subsection 202(a) requirements are eligible for re-enfranchisement only if they have also (1) "paid all restitution to the victim or victims of the offense ordered by the court as part of the sentence"; (2) "paid all court costs assessed against the person at the conclusion of the person's trial," except when the court made a finding of indigency; and (3) remained "current in all child support obligations." Tenn. Code Ann. § 40-29-202(b), (c). In other words, under current law, a convicted felon must satisfy these financial obligations in full before re-enfranchisement.

In Johnson v. Bredesen, the Sixth Circuit held the financial-obligation preconditions to re-enfranchisement in subsections 202(b) and (c) to be constitutional. 624 F.3d 742 (6th Cir. 2010). The full-payment preconditions in effect at that time were challenged as violative of the Equal Protection and Privileges and Immunities Clauses of the Fourteenth Amendment and the Twenty-Fourth Amendment to the U.S. Constitution and the Ex Post Facto Clauses of both the U.S. and the Tennessee Constitutions. The preconditions were upheld under deferential rational-basis review because "Tennessee possesses valid interests in promoting payment of child support, requiring criminals to fulfill their sentences, and encouraging compliance with court orders," and the requirement that convicted felons pay these obligations as a precondition to re-enfranchisement directly advanced those interests. Id. at 747; see also Harvey v. Brewer, 605 F.3d 1067, 1079 (9th Cir. 2010) (O'Connor, J.) ("We have little trouble concluding that [a State] 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.").

You have asked whether, instead of requiring payment in full of outstanding obligations for restitution, court costs, and child support before re-enfranchisement, the General Assembly may require a felon seeking re-enfranchisement to enter into a payment plan to satisfy any such outstanding financial obligations by making periodic payments after restoration of the voting rights. The requirement of a payment plan as a precondition to re-enfranchisement would likely be constitutional under the reasoning of Johnson. As the Sixth Circuit explained, a State "may, within the bounds of the Constitution, strip convicted felons of their voting rights." Johnson, 624 F.3d at 746. Accordingly, any conditions on the reinstatement of those rights would be subject only to deferential, rational-basis review because convicted felons, "[h]aving lost their voting rights," "lack any fundamental interest to assert." Id. Thus, under Johnson, a requirement that convicted felons seeking re-enfranchisement enter into a payment plan to fulfill their existing financial obligations would be subject only to rational-basis review and is likely to survive that deferential review because the payment-plan requirement advances the same state interests as does the full-payment precondition, which was upheld in Johnson.

But a statute that allows for a payment plan and then also provides that failure to abide by the terms of the payment plan would result in forfeiture or revocation of the restored voting rights could raise some constitutional concerns, depending on the specifics of the provision.

First, application of the deferential rational-basis standard in Johnson is premised on the principle that a convicted felon who has lost the right to vote does not have any fundamental right to assert when bringing a constitutional challenge. See Johnson, 624 F.3d at 749 (noting that the "restoration of a civil right to which Plaintiffs have no legal claim" requires "only rational basis review"). But once a felon's right to vote has been fully restored, there may be a question whether a subsequent revocation of that right is subject to the rational-basis review applied to restoration in Johnson or is subject to the more stringent scrutiny that would normally apply to the revocation of voting rights. See Dunn v. Blumstein, 405 U.S. 330, 336 (1972) ("[A] citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction."). Thus, the way in which any new legislation circumscribes the voting rights that are restored may make a difference in the outcome of a constitutional challenge.

For that reason, other States that have adopted a payment-plan approach, such as Washington, have specified that the right to vote is only "provisionally restored" as long as the felons' financial obligations remain outstanding. Wash. Rev. Code Ann. § 29A.08.520(1). And that provisional right may be revoked by the sentencing court for failure to comply with the payment plan. Id. § 29A.08.520(2). A provisional restoration of the right to vote, subject to the condition that the convicted felon abide by the terms of the payment plan, supports the idea that any subsequent revocation for failure to pay is not a new disability imposed on the individual but is merely a continuation of the original disenfranchisement resulting from the felony conviction. That, in turn, makes it more likely that any subsequent revocation of the provisional right to vote would not be subject to strict scrutiny should the constitutionality of the revocation be challenged. Thus, at a minimum, the restored right should expressly be made provisional and conditional on adherence to the payment plan.

Second, a felon's ability to pay could have constitutional implications for a statutory provision allowing for revocation for failure to abide by a payment plan. The Sixth Circuit in Johnson upheld the constitutionality of Tennessee's re-enfranchisement statute as applied to all convicted felons who have not fulfilled their financial obligations, including indigent individuals unable to pay. See 624 F.3d at 748. Because "wealth-based classifications do not discriminate against a suspect class," any distinction among individuals based on their ability to pay would be subject only to rational-basis review. Id. at 746. Accordingly, under Johnson, convicted felons who are unable to pay their financial obligations could be rendered ineligible for re-enfranchisement to the same degree as convicted felons who are able to, but do not, pay. See Jones v. DeSantis, 410 F. Supp. 3d 1284, 1300 (N.D. Fla. 2019); Madison v. State, 163 P.3d 757 (Wash. 2007) (en banc).

Thus, under Johnson, a statute providing for the revocation of provisional voting rights for failure to abide by a payment plan would not necessarily need to take into account, as the Washington statute does, whether a convicted felon's failure to meet the obligations of the payment plan was the result of inability to pay as opposed to a willful failure to pay. However, some courts have suggested, contrary to Johnson, that a distinction between willful failure to pay and indigency could be material to the constitutional inquiry and that such distinctions would be subject to heightened scrutiny, not deferential rational-basis review. See, e.g., Jones, No. 19-14551, 2020 WL 829347, at *21 ("[O]nce a state provides an avenue to ending the punishment of disenfranchisement . . . it must do so consonant with the principles of equal protection and may not erect a wealth barrier absent a justification sufficient to overcome heightened scrutiny."); Harvey, 605 F.3d at 1080; see also Bearden v. Georgia, 461 U.S. 660, 666 (1983). Thus, legislation that requires a court to take into account ability to pay before ordering a revocation for failure to adhere to a payment plan could be more likely to withstand a constitutional challenge.

Third, as a general matter, appropriate due process protections should be provided before a subsequent revocation for non-adherence to a payment plan is imposed. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). A statutory scheme that accounts for indigency and allows re-enfranchised felons facing revocation for failure to pay to prove actual indigency and good faith to a neutral court would be on firmer constitutional footing than a statute that provides for revocation for failure to comply with a payment plan without distinguishing willful failure to pay from a failure to pay because of indigency.

In sum, based on existing precedent from the Sixth Circuit Court of Appeals, the legislature may require, as a condition of the restoration of the voting rights of convicted felons, that a convicted felon enter into a payment plan for satisfying existing financial obligations. The principles on which that precedent rests suggest that the legislature may restore convicted felons' voting rights only provisionally, subject to subsequent revocation for failure to pay in accordance with the payment plan. An argument can be made that subsequent revocation for failure to pay need not take indigency to account in order to pass constitutional muster, but no court has directly addressed that question. Nor has any court squarely addressed what procedural protections would be required for a subsequent revocation for failure to abide by the terms of a payment plan. Because those questions remain unresolved, a statutory scheme that (1) explicitly makes the restoration of voting rights provisional and conditional on adherence to the terms of the payment plan, (2) accounts for indigency, and (3) allows convicted felons facing subsequent revocation of restored voting rights for failure to abide by the payment plan to prove their indigency and good faith to a neutral court would be on firmer constitutional footing than a statute that did not include those provisions.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JONATHAN DAVID SHAUB
Assistant Solicitor General

Requested by:
The Honorable Michael Curcio
425 5th Avenue North
Suite 630, Cordell Hull Bldg.
Nashville, TN 37243