There is another crucial American right that has, however, received scant attention: fair, universal access to the ballot box. Sure, a smattering of articles have looked at memos the young Roberts wrote back in the early 1980's urging a limited interpretation of the 1965 Voting Rights Act. Civil rights organizations, progressives and Democratic politicians have questioned this. But they haven't addressed what is arguably a central challenge to participation in modern America's democracy. The main challenge is no longer the straightforward, racial disempowerment engineered by supremacist state politicians and terror groups such as the KKK—the Voting Rights Act has indeed relegated those abuses to history. Today, one of the chief threats to minority voting rights comes from the practice of disfranchising individuals with felony convictions, and it is a threat that the legal system—all the way up to the Supreme Court—has conspicuously failed to recognize.

As more and more crimes, especially drug offenses, have been defined as felonies during decades of "tough on crime" rhetoric and populist politicking, the number of felony convictions is increasing. Until this year, a half-dozen states—mainly in the South-permanently disenfranchised people with felony convictions. There have been some victories-like when Nebraska and Iowa jettisoned their permanent disenfranchisement laws earlier this year. But in the United States today, 48 out of 50 states still deny voting rights to people based on conviction status. Maine and Vermont stand alone as never denying ballot access based on felony status.

The result is that in 2005, in a country that considers itself the world's preeminent democracy, almost 5 million Americans—those in prison, on parole or probation, or living in states where voting restrictions extend beyond the end of one's criminal sentence—are now legally without a vote and politically voiceless. Millions more, not familiar with the intricacies of recent law changes, likely think they cannot vote. Quite simply, the combination of the "War On Crime" and felon disenfranchisement codes has resulted in the biggest contraction of the franchise since the South adopted Jim Crow at the end of the nineteenth century.

In states such as Alabama—where a single felony conviction is enough to result in lifelong disenfranchisement— teenagers, many of them African American, routinely lose their right to vote before they have even had a chance to exercise it. Regaining the vote is so onerous a process in Alabama that vast numbers simply drop out of political participation altogether, living the remainder of their lives as political invisibles.

Numbers compiled by the D.C.-based Sentencing Project and other researchers suggest that in many areas of the South, up to one-third of African American men have lost their right to vote because of a criminal conviction. The expansion of the criminal justice system has had such an extreme impact on voting rights that elections from the local, all the way up to the presidential levels are now affected as much by who cannot vote as by who does cast a ballot.

Roberts argued in the 1980's that the Voting Rights Act should be restricted to "intentionality." To prove a violation of the Act, under the definitions he set forth, plaintiffs would have to demonstrate not simply that policies and social structures had the effect of restricting minority populations' ability to vote and otherwise politically participate, but that there were individuals in positions of authority who specifically intended their laws and regulations to produce this outcome.

For people schooled in understanding how social, cultural, economic and political structures can create vastly unfair racial divides and perpetuate inequalities generated over centuries of previous intentional discrimination, such an argument cannot help but be cause for concern.

Yet, with or without Roberts' accession to the Supreme Court, this issue should have already been a publicly debated topic. After all, judicial reluctance to bar practices of felon disenfranchisement in an era of mass, and racially-skewed, incarceration has, over the past three decades, resulted in backdoor disenfranchisement of mammoth proportions. While the Voting Rights Act has been used to destroy most vestiges of Jim Crow, advocates in states as far flung as Washington and Florida have been unable to convince courts to apply it in the one area where America's ongoing racial divides are most clearly, and depressingly, on display-the criminal justice arena.

For many years now, state and federal courts hearing challenges to permanent felon disenfranchisement laws have ruled that felons' political rights are not protected under the Voting Rights Act. Such rulings essentially apply Roberts' intent criteria and arguing that states aren't intentionally convicting and incarcerating people simply because of the color of their skin. This, despite the fact that social circumstance and the peculiarities of U.S. history have combined to produce intense racial disparities throughout the criminal justice system, and, by extension, have disenfranchised legions of impoverished Black males.

Filling the void left by the courts, several states have modified or abandoned their disenfranchisement laws in the past few years. Most recently, Iowa Governor Tom Vilsack dramatically re-enfranchised somewhere in the region of 50,000 Iowans who have completed their sentences. Yet many other states, including Florida—where the 2000 presidential election was decided by a mere few hundred votes, and where between half- and three-quarters of a million citizens are denied a vote—have opted to keep their disenfranchisement laws intact.

Mass, and permanent disenfranchisement in a democracy is simply unacceptable. Whether John Roberts is confirmed or not, it is time for the courts to step in and say so loud and clear.