The Loss of the Right to Vote and its Role in the Effective Assistance of Counsel

The Sixth Amendment guarantees anyone accused of a crime the right to “have the assistance of counsel for his defense.” [1] However, uncertainty over what “assistance of counsel” entails remains, leading to complex court cases across the country. When a defendant faces the court and decides whether they will plead guilty or not guilty to the charges against them, their counsel weighs the consequences of a guilty plea, often categorized into two types: immediate and collateral. Immediate consequences are punishments like fines, detainment, and prison time, and are often the primary basis for a legal counsel’s advice. Yet the collateral consequences of a defendant's guilty plea are often ignored—though they are just as important. Though less obvious than immediate consequences, collateral consequences can drastically limit the rights of defendants; pleading guilty may lead to deportation, housing restrictions, job insecurity, and in some states, the loss of the right to vote. Collateral consequences threaten the fundamental rights and privileges that citizens are guaranteed by the Constitution, as the right to vote is protected in the Fourteenth, Fifteenth, Seventeenth, Nineteenth, and Twenty-sixth Amendments. [2] Thus, legal counsel must be required to inform the defendant they are representing about the potential loss of the right to vote if they were to plead guilty for a felony. 

If counsel fails to disclose potential collateral consequences to the defendants they are representing, the defendants could have a severely limited ability to live a normal life. Padilla v. Kentucky (2010) illustrates the undisclosed collateral consequences that stem from a guilty plea. In Padilla, long-term immigrant Jose Padilla and native of Honduras, was accused of drug distribution in the state of Kentucky. Padilla was advised to plead guilty by his lawyer, who told Padilla that since he had lived in the United States for a long time, he would not be at risk of deportation. Padilla alleged that “he would have gone to trial had he not received this incorrect advice.” [3] But the plea did make him eligible for deportation back to Honduras, meaning Padilla was made unaware of the severe, life-altering consequences that his plea would have. Padilla first sought relief before the Kentucky Supreme Court, which held that “the Sixth Amendment's guarantee of effective assistance of counsel does not protect a criminal defendant from erroneous advice about deportation because it is merely a "collateral" consequence of his conviction.” [4] Padilla then appealed his case to the Supreme Court of the United States, which reversed the rulings of the Kentucky Supreme Court in 2010. The decision argued that Padilla’s Sixth Amendment rights had been violated because he was not informed by his counsel that he would be eligible for deportation by pleading guilty. [5] It was determined that Padilla may have made a different plea choice if he was provided with more information. Thus, the Court ruled that a defendant must be informed by their counsel of the possibility of deportation if they are found guilty.

While the Court’s decision in Padilla established that legal counsel must make their client aware of the possibility of deportation, this is the only collateral consequence that explicitly holds this distinction. This is because deportation was seen by the Court as a life-changing consequence; implying that this is the relevant factor determining when to disclose risks to a defendant. However, the standard of life-changing could be applied to other collateral consequences as well. For example, people who serve time are prohibited from carrying a driver’s license and lose eligibility for job opportunities, which could be seen as similarly severe and life-changing. [6] More severe is the potential loss of one’s right to vote. Several amendments have expanded the scope of who is able to vote based on gender, sex, age, and ownership of property, but there is no standardized voting measure for every state. Though the right to vote may be withheld from an incarcerated person, several states go further, with restrictions on voting even after the completion of a prison sentence. Eleven states, for example, require further action or an additional waiting period after incarceration, as well as probation, are completed. [7] Thus, losing the right to vote is a real possibility, and it is a clearly life-changing consequence. 

While classifying the collateral consequences of conviction as life-changing could be a good idea in theory, what ultimately constitutes life-changing is evaluated subjectively—it does not clearly delineate what risks should be disclosed.  Further, different attorneys often have different legal backgrounds, making determinations of “ineffective” counsel difficult. For example, many lawyers may lack extensive background in immigration law and not realize that they should inform their client about the possibility of deportation. Indeed, in Padilla, Justice John P. Stevens observed: “Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain.” [8] In such a complex field, it is inevitable that some attorneys will be inadequately informed of the intricacies in immigration law. Such instances negatively affect the client, but it is also hard to put sole responsibility on the counsel for such negligence. Therefore, there ought to be an agreed upon standard for what constitutes effective assistance of counsel when it comes to informing defendants of potential consequences.

In the wake of Padilla, other courts have suggested that the requirement for counsel to inform their clients of potential deportation status could be applied to other collateral consequences as well. While the same logic  can be applied to all potential collateral consequences, specific attention can be given to the loss of the right to vote, as scholars have argued that a court could come to the same conclusions as Padilla “in relation to the loss of voting rights” [9]. The loss of the right to vote would be classified as a life-changing consequence, the same as deportation after Padilla. One recent case that implicates the increased consideration of voting rights as a significant collateral consequence is State v. Wallace (2022). In Wallace, the defendant, John Wayne Wallace, argued that his nolo contendere pleas were made unfairly because he was not informed by his assisting counsel that he would lose the right to vote. [10] Though the Kansas Court of Appeals did not decide in the defendant's favor, its decision was largely based on the loss of the right to vote not being considered a direct consequence, with no references to the decision in Padilla. This suggests that if courts were to draw the parallel and classify the loss of the right to vote similarly to deportation, future clients like Wallace would see cases go in their favor similarly to Padilla. 

In prior cases, it has been established that a defendant—to prove that they had ineffective assistance of counsel— must prove that the counsel’s performance was unreasonable. Importantly, a defendant does not need to establish the likelihood of a different outcome—only that the counsel’s errors undermined confidence in the outcome. [11] In Padilla, his counsel did not give the full details of the potential consequences of the case. The counsel’s error caused him to underestimate his chance of deportation and overestimate his chances of success. Even if it is likely that the outcome would have been the same, as may have been the case for Padilla, it does not change the fact that Padilla may have chosen not to plead guilty if he had been made aware that doing so would ultimately make him liable to deportation. [12] As this logic has been applied to a case involving deportation, it could be similarly applied to a case involving the loss of the right to vote. A severe enough consequence inevitably affects the defendant’s confidence in any given outcome—and thus impacts “effective” counsel. 

Padilla proves that the knowledge of collateral consequences can affect how clients make their decisions in court cases. Just as Jose Padilla was misinformed of his potential consequence of deportation, many individuals in the United States remain unaware that they may lose their right to vote if found guilty of committing a felony.  If deportation is considered important enough that it must be made known as a possible consequence to all potential deportees, then the right to vote—the backbone of democratic government—must be treated in the same way. Clients must be made aware of the potential loss of their right to vote; otherwise, the assistance of counsel they get is ineffective. Clients have already been guaranteed the right to information about one collateral consequence, and similar protections for the loss of the right to vote can make assistance of counsel even more effective. 

Edited by Phillip Le

Sources: 

[1] U.S. Const. amend. VI.

[2] Mac Brower, “What Does the Constitution Say about the Right to Vote?” Democracy Docket, February 3, 2022, https://www.democracydocket.com/news/what-does-the-constitution-say-about-the-right-to-vote/.

[3] Padilla v. Kentucky, 559 U.S. 356, 356 (2010). 

[4] Padilla v. Kentucky, 559 U.S. 356, 356 (2010). 

[5] Padilla v. Kentucky, 559 U.S. 356, 356 (2010). 

[6] Cameron Kimble and Ames Grawert, “Collateral Consequences and the Enduring Nature of Punishment,” Brennan Center for Justice, June 21, 2021, https://www.brennancenter.org/our-work/analysis-opinion/collateral-consequences-and-enduring-nature-punishment.

[7] Patrick Potyondy, “Felon Voting Rights,” National Conference of State Legislatures, June 28, 2021, https://www.ncsl.org/research/elections-and-campaigns/felon-voting-rights.aspx. 

[8] Padilla v. Kentucky, 559 U.S. 356, 369 (2010). 

[9] Colleen A. Connolly, “Sliding Down the Slippery Slope of the Sixth Amendment: Arguments for Interpreting Padilla v. Kentucky Narrowly and Limiting the Burden It Places on the Criminal Justice System.” Brooklyn Law Review 77, (2012): 777-779.

[10] State v. Wallace, 62 Kan. App. 2d 420, 516 P.3d 140 (Kan. Ct. App. 2022)

[11] Andrea D. Lyon, “The Promise of Effective Assistance of Counsel: Good Enough Isn't Good Enough,” National Association of Criminal Defense Lawyers, 2012, https://www.nacdl.org/Article/June2012-ThePromiseofEffectiveAssistanc.

[12] Padilla v. Kentucky, 559 U.S. 356 (2010).