KAEEN NELSON MOORE, Circuit Judge, dissenting.

A state under current law may curtail a felon's right to vote, or even forever deny it, but once a state enacts a process by which a felon may regain suffrage, that process must comport with the demands of the Constitution. Contrary to the majority's conclusion, I would hold that Tennessee Code § 40-29-202(b) and (c) violate the Equal Protection Clause of the U.S. Constitution and the Ex Post Facto Clause of the Tennessee Constitution. I further believe that the Plaintiffs have alleged sufficient factual matter to state a claim for relief under the Twenty-Fourth Amendment to the U.S. Constitution such that dismissal on the pleadings was improper. For the following reasons, I must respectfully dissent.

Tennessee Code § 2-19-143 and § 40-20-112 disenfranchise all persons who have been convicted of "infamous" crimes, i.e., felonies. Those felons denied the right to vote are "eligible to apply for a voter registration card and have the right of suffrage restored" if they receive a pardon, are discharged from custody after serving the maximum sentence imposed, or are granted a final discharge from supervision by the relevant county, state, or federal authority. Tenn. Code Ann. § 40-29-202(a)(1)-(3) (2006). Notwithstanding this provision, however, there are two pecuniary preconditions to re-enfranchisement: "[A] person shall not be eligible to apply for a voter registration card and have the right of suffrage restored, unless the person has paid all restitution to the victim or victims of the offense ordered by the court as part of the sentence," id. § 40-29-202(b), and "unless the person is current in all child support obligations," id. § 40-29-202(c). Prior to 2006, felons adjudged to have committed infamous crimes were eligible to vote upon the completion of their sentences despite any outstanding financial obligations.

In the instant case, the Plaintiffs are individuals who have completed the imprisonment associated with the felonies for which the State was authorized to abridge their right to vote. Yet because of their inability to pay outstanding restitution and/or child-support arrears, the State continues to deny them the right of suffrage to which they otherwise would be entitled automatically were the law the same now as it was at the time of their convictions and initial disenfranchisement. It is indisputable that the Plaintiffs are now unable to access the ballot box simply because they are too poor to pay.

I.

A. Equal-Protection Claim

The Equal Protection Clause of the Fourteenth Amendment prohibits states from making distinctions that "burden a fundamental right, target a suspect class, or intentionally treat one differently from others similarly situated without any rational basis for the difference." Radvansky v. City of Olmsted Falls. 395 F.3d 291, 312 (6th Cir. 2005). The precise level of scrutiny that a court will provide a challenged provision "depend[s] upon the interest affected or the classification involved." Dvnn o. Blumstein, 405 U.S. 330, 335, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). Those laws that burden a fundamental right or target a suspect class will be "subject to strict scrutiny, and will be upheld only when they are narrowly tailored to a compelling governmental interest." Does v. M.imoz, 507 F.3d 961, 964 (6th Cir. 2007) (internal quotation marks omitted). A law that "neither burdens a fundamental right nor targets a suspect class" must "bear[] a rational relation to some legitimate end." Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.F.d.2d 855 (1996). "[T]he Equal Protection Clause is satisfied as long as there is a plausible policy reason for the classification . . . and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational." Nordlinger v. Hahn, 505 U.S. 1, 11, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992) (internal citations omitted); see City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 446, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) ("The State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.").

I agree with the majority as to some components of its equal-protection analysis. I agree that the Plaintiffs in this case have no fundamental right to vote under existing case law. See Wesley v. Collins, 791 F.2d 1255, 1261 (6th Cir. 1986) (citing, among other cases, Richardson v. Ramirez, 418 U.S. 24, 26, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974)). I also agree that the Plaintiffs' membership in "a class of less wealthy individuals is not a suspect class" under prevailing precedent. Molina-Crespo v. U.S. Merit Sys. Prot. Bd., 547 F.3d 651, 660 (6th Cir. 2008) (citing San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 29, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973)). Given these two conclusions, I must also agree that, because the Tennessee provisions neither burden a fundamental right nor discriminate against a suspect class, the Plaintiffs bear the burden to show that § 40-29-202(b) and (c) bear no rational relationship to any legitimate governmemt end. See FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993).

Where my agreement with the majority ends, however, is with its conclusion that the Tennessee provision requiring full payment of all outstanding child-support arrears prior to the restoration of suffrage" regardless of whether the individual is able to pay — satisfies this rational-basis inquiry. Although "[o]nly a handful of provisions have been invalidated for failing rational basis review," Craigmiles v. Giles, 312 F.3d 220, 225 (6th Cir. 2002), the absence of any policy justification for the distinction in the instant case, as well as Supreme Court precedent addressing the propriety of provisions that discriminate on the basis of wealth, compel the conclusion that this is one of those instances. Simply put, Tennessee has no rational basis for denying voting rights to only those felons with outstanding financial obligations, despite their inability to pay.

1. Section 40-29-202(b) and (c) Are Not Rationally Related to Any Legitimate Interest

The statutory provisions at issue in the instant case, § 40-29-202(b) and (c), preclude individuals, like the Plaintiffs, who are unable to satisfy all outstanding restitution orders and child-support arrears from regaining the franchise. The majority credits Tennessee's purported justifications for the provision, specifically concluding that § 40-29-202(b) and (c) are constitutionally sound because Tennessee has a legitimate interest in "encouraging payment of child support," "encouraging compliance with court orders," "protecting the ballot box from convicted felons who continue to break the law by failing to comply with court orders," and "requiring felons to complete" the financial obligations associated with their sentences. Maj. Op. at 747. I cannot agree that the provision restoring the franchise to only those felons who are affluent enough to satisfy their child-support arrears is rationally related to a legitimate government objective, and I believe that no policy reason supports the distinction in the instant case.

With respect to the first two policy justifications set forth by the majority, although Tennessee may seek to encourage the payment of child support, the payment of restitution, and compliance with court orders by conditioning the restoration of suffrage on the respective payments, this explanation fails to consider that § 40-29-202(b) and (c) are not restricted to just those persons who are unwilling to pay their arrears or restitution or comply with their court orders; instead, it includes individuals like the Plaintiffs who are simply unable to do so. Even acknowledging that Tennessee's proffered justifications for the law implicate legitimate state interests, I fail to see how preconditioning suffrage on a payment that a person is unable to make is in any rational way related to the government's interest in promoting that payment.

In fact, the Supreme Court has rejected a similar "collection device rationale" on at least two occasions. In Zablocki v. Redhail, for example, the Court confronted the constitutionality of a statute that required an applicant for a marriage license who had children from a previous relationship to "show[]that he ha[d] satisfied his court-determined support obligations to the prior children and that those children [would] not become public charges." Zablocki v. Redhail, 434 U.S. 374, 389, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978). At oral argument, the State in Zablocki suggested that the statute was justified because it "provide[d] [an] incentive for the applicant to make support payments to his children." Id. The Court, however, rejected this rationale, stated that it could not "justify the statute's broad infringement on the right to marry" and emphasized that "with respect to individuals who are unable to meet the statutory requirements, the statute merely prevents the applicant from getting married, without delivering any money at all into the hands of the applicant's prior children." Id. (emphasis added).

Similarly, in Bearden. r. Georgia, the Supreme Court held that the State of Georgia was not entitled to revoke automatically an individual's probation because of the failure to pay the tines and restitution associated with the sentence without some determination that the individual had not made bona fide efforts to pay. Bearden v. Georgia, 161 U.S. 660, 662, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). The Court rejected the State's claim that "revoking probation further[ed] its interest in ensuring that restitution be paid to the victims of crime" on the grounds that "[r]evoking the probation of someone who through no fault of his own is unable to make restitution will not make restitution suddenly forthcoming." Id. at 670, 103 S.Ct. 2064; set; id. ("A rule that imprisonment may befall the probationer who fails to make sufficient, bona fide efforts to pay restitution may indeed spur probationers to try hard to pay, thereby increasing the number of probationers wTho make restitution." (emphasis added)). Similarly, the Tennessee statute here is "ludicrously ineffectual" at encouraging the payment of child-support arrears as it makes no accommodation for individuals like the Plaintiffs who simply cannot pay despite a willingness to do so. Phjler v. Doe, 457 U.S. 202, 228, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (internal quotation marks omitted).

Moreover, "[t]he Supreme Court, employing rational basis review, has been suspicious of a legislature's circuitous path to legitimate ends when a direct path is available." Craigmiles, 312 F.3d at 227 — citing City of Cleburne, 473 U.S. at 449, 105 S.Ct. 3249). And in the instant case, "regardless of the [Plaintiffs'] ability . . . to meet the statutory requirements, the State already has numerous other means for exacting compliance with . . . obligations," such as wage garnishment, which are "means that are at least, as effective as the instant statute's and yet do not impinge upon" the Plaintiffs' attempt to regain the right to vote. Zablocki, 434 U.S. at 389, 98 S.Ct., 673; see also id. at 389-90, 98 S.Ct. 673 ("[C]ourt-determined support obligations may be enforced directly via wage assignments, civil contempt proceedings, and criminal penalties."). The Supreme Court has made plain that the availability of alternative enforcement mechanisms is relevant in rational-basis review because it exposes the spuriousness of the asserted interest. For example, in U.S. Department of Agriculture v. More-no, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973), the Court invalidated as irrational a law- that distinguished between related and unrelated individuals for purposes of determining food-stamp eligibility. Although the government asserted that the distinction was intended to deter fraud, which was a legitimate justification, the challenged statute contained other provisions dealing explicitly with fraud prevention. Striking dowTi the statutory provision as a violation of equal protection, the Court stated that the inclusion in the statute of these alternative provisions to deter fraud "necessarily casts considerable doubt upon the proposition that the [challenged provision] could rationally have been intended to prevent those very same abuses." Id. at 537, 93 S.Ct. 2821 ("[I]n practical effect, the challenged classification simply does not operate so as rationally to further the prevention of fraud.").

In short, I find entirely unconvincing the majority's conclusion that § 40-29-202(b) and (e) constitute a rational way to encourage Tennessee's legitimate interest in the collection of outstanding financial obligations or encourage compliance with court orders imposing such obligations. The attempt to incentivize payments that an individual is simply incapable of making by linking those payments to the right to vote, particularly when there are other collection methods available, advances no purpose and embodies nothing more than an attempt to exercise unbridled power over a clearly powerless group, which is not a legitimate state interest. See City of Cleburne, 473 U.S. at 446-47, 105 S.Ct. 3249.

The next proffered justification for the statute — that the ballot box needs "protect[ion]" from those who "continue to break the law by failing to comply with court orders," Maj. Op. at 747 "is likewise unconvincing and is belied by the Tennessee statutes governing the non-payment of child support in the case of subsection (c). Pursuant to Tennessee Code § 39-15-101, the mere inability to pay child support is not a crime. See Tenn. Code Ann. § 39-15-101(a) ("A person commits the crime of nonsupport . . . [when that person] fails to provide support which that person is able to provide and knows the person has a duty to provide. . . ." (emphasis added)). And the failure to pay when able, absent certain aggravating

circumstances, amounts to only a misdemeanor, id. § 39-15-101(a), (e), which is a criminal act that on its own would be an insufficient basis upon which to deny an individual suffrage. See id. § 40-20-112 ("Upon conviction for any felony, it shall be the judgment of the court that the defendant be infamous and be immediately disqualified from exercising the right of suffrage."); Tenn. Const. art. 1, § 5 (authorizing disenfranchisement for felons "upon a conviction by a jury of some infamous crime"); cf. Shepherd v. Trevino, 575 F.2d 1110, 1115 (5th Cir. 1978) ("A state properly has an interest in excluding from the franchise persons who have manifested a fundamental antipathy to the criminal laws of the state or of the nation by violating those laws sufficiently important to be classed as felonies."). Moreover, there has been no allegation "that any of the Plaintiffs has been convicted of or pleaded guilty to the failure to pay child support such that they have, in fact, been adjudicated of "break[ing] the law," and the statute is certainly not limited to such individuals.

Additionally, the assertion that § 40-29-202(b) and (c) are justified on the grounds the ballot box needs protection from felons such as the Plaintiffs, who are unable to make the payments that the statute requires, amounts to nothing "more than a naked assertion that [a felon's] poverty by itself," Bearden, 461 U.S. at 671, 103 S.Ct. 2064, is a sufficient reason to disqualify the felon from regaining the right to participate in the exercise of democracy. This, however, cannot be a legitimate justification for § 40-29-202(b) and (c), as the Supreme Court's voting-rights jurisprudence counsels that voting qualifications based on an individual's ability to pay are per se unconstitutional under the Equal Protection Clause. See Harper v. Va. State Bd. of Elections, 383 U.S. 663, 666, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (invalidating a Virginia statute that assessed a poll tax in state elections on the grounds "that a State violates the Equal Protection Clause of the Fourteenth Amendment whenever it makes the affluence of the voter or payment of any fee an electoral standard." (emphasis added)); cf. Richardson, 418 U.S. at 53, 94 S.Ct. 2655 (" `Residence requirements, age, previous criminal record are obvious examples indicating factors which a State may take into consideration in determining the qualifications of voters.'" (quoting Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 51, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959) (internal citation omitted))).

The effective result of the State's attempt to justify § 40-29-202(b) and (c) as a legitimate way to limit access to the ballot box is that the State has injected wealth as a determinative factor in an arena where it simply has no place. See Bynum v. Conn. Comm'n on Forfeited Rights, 410 F.2d 173, 176-77 (2d Cir. 1969). "Wealth, like race, creed, or color, is not germane to one's ability to participate intelligently in the electoral process," and wealth as a measure of a voter's qualification is nothing more than a "capricious or irrelevant factor" that cannot withstand constitutional scrutiny. Harper, 383 U.S. at 668, 86 S.Ct. 1079; see also Craivford in Marion County Election Bd., 553 U.S. 181, 189, 128 S.Ct. 1610, 1616, 170 L.Ed.2d 574 (2008) (".Although the State's justification for the tax [in Harper] was rational, it was invidious because it was irrelevant to the voter's qualifications."); M.L.B. v. S.L.J., 519 U.S. 102, 123-24, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) ("States are not forced by the Constitution to adjust all tolls to account for disparity in material circumstances. But our cases solidly establish two exceptions to that general rule. The basic right to participate in political processes as voters . . . cannot be limited to those who can pay for a license." (internal quotation marks and citation omitted)).

By providing for the automatic restoration of the franchise to those who have completed their sentences under § 40-29-202(a), Tennessee ceased to rely on the felon's participation in criminal activity as its basis for withholding the right to vote. Instead, the State deemed those felons eligible under subsection (a) of § 40-29-202 just as fit to participate in elections on equal terms as other qualified voters subject to one condition — the payment of a particular financial obligation, regardless of whether the individual can make that pajment. Because the Plaintiffs are otherwise eligible for the automatic restoration: of the right to vote but are prevented from attaining that right because of their inability to pay a particular sum, the Tennessee statute effectively sets affluence as a voting qualification and is plainly irrational.

In sum, "Tennessee's justifications . . . come close to striking [me] with the force of a five-week-old, unrefrigerated dead fish," which this court has stated is "a level of pungence almost required to invalidate a statute under rational basis review." Craigmiles, 312 F.3d at 225 (internal quotation marks and citations omitted). And I simply cannot conjure any rational basis that Tennessee would have for distinguishing between those felons who have outstanding obligations that they are unable to meet and those who do not in determining who is entitled to regain the franchise. No rational purpose underlies this disparate treatment.

2. Supreme Court Jurisprudence Regarding the Propriety of Wealth-Based Distinctions Supports the Conclusion that the Provision is Irrational

In addition to the fact that no proffered or conceivable policy reason can justify § 40-29-202(b)'s and (c)'s restrictions as to the Plaintiffs in the instant case, the Supreme Court's jurisprudence regarding the propriety of wealth-based distinctions further supports my conclusion that the statute differentiates between groups in a manner that is not rationally related to a legitimate interest. Because the statute distinguishes between those who owe a particular obligation and those who do not in determining whether an individual is worthy of the right to vote — regardless of whether an individual is able to pay — it is indisputable that the statute distinguishes among felons seeking re-enfranchisement on the basis of wealth. Although the Supreme Court has declined to deem less-wealthy individuals members of a suspect class, the Court has recognized repeatedly that in some instances wealth-based distinctions or classifications are the result of prejudice rather than reason and cannot be constitutionally countenanced. Such is the case here.

To determine whether the distinction among felons based on their wealth in the instant case is rational and withstands constitutional scrutiny, Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), and James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972), are instructive. In Griffin, the Supreme Court invalidated an Illinois law that required defendants who wished to appeal their convictions to purchase a copy of their trial transcripts. The Court determined that although "a State is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all[,] . . . a State that does grant appellate review [may not] do so in a way that discriminates against some convicted defendants on account of their poverty." Griffin, 351 U.S. at 18, 76 S.Ct. 585 (plurality opinion); see id. at 21-22, 76 S.Ct. 585 (Frankfurter, concurring). The analogy to the instant case is striking. Even though under current law the Plaintiffs no longer have a fundamental right to vote and Tennessee may deprive felons of the ability to vote indefinitely, when Tennessee decided to authorize re-enfranchisement, the state was prohibited from setting conditions on that re-enfranchisement that discriminated against those otherwise-eligible individuals solely on the basis of their ability to pay a particular sum. Bynum, 410 F.2d at 176" 77; cf. M.L.B., 519 U.S. at 111, 117 S.Ct. 555 (" `This Court has never held that the States are required to establish avenues of appellate review, but . . . once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts.'" (quoting Rinaldi v. Yeager, 384 U.S. 305, 310, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966))). The Tennessee statute plainly "discriminates against some convicted [felons] on account of their poverty," Griffin, 351 U.S. at 18, 76 S.Ct. 585 (plurality opinion), precluding the reattainment of the franchise solely on the basis of an individual's wealth and thereby contravening Griffin.

The Supreme Court's decision in Williams likewise indicates that the Tennessee provision cannot withstand even rational-basis scrutiny. In Williams, the Supreme Court invalidated a law that required indigent prisoners to serve time beyond their maximum sentences to work off their fines and court costs if the prisoners were unable to pay these financial obligations outright. Williams, 399 U.S. at 236, 241, 90 S.Ct. 2018. The state contended that it had an "interest in the collection of revenues" and that the "`work off system" was a "rational means of implementing that policy." Id. at 238, 90 S.Ct. 2018. Although the Court recognized the State's interest to be "substantial and legitimate," id., it concluded that when an individual's imprisonment exceeded the "maximum period fixed by the statute," and when the additional term of imprisonment "result[ed] directly from an involuntary nonpayment of a fine or court costs," the statute constituted "an impermissible discrimination that rest[ed] on ability to pay." Id. at 240-41, 90 S.Ct. 2018. As with voting qualifications, the Court determined that the state had "wide latitude in fixing the punishment for state crimes," id. at 241, 90 S.Ct. 2018, but "once the State has defined the outer limits of incarceration necessary to satisfy its penological interests and policies, it may not then subject a certain class of convicted defendants to a period of imprisonment beyond the statutory maximum solely by reason of their indigency," id. at 241-42, 90 S.Ct. 2018.

Again, the analogy to the instant case is striking. Here. Tennessee set the outer limits of its felon-disenfranchisement scheme in § 40-29-202(a) by providing for the automatic restoration of suffrage for those who had completed their terms of imprisonment or received a pardon. Tennessee then proceeded to subject a certain class of felons to an extended period of disenfranchisement beyond that limit solely because of those individuals' failure (and. in the case of the Plaintiffs, inability) to pay a sum of money. This condition leads to the denial of the ability to regain a fundamental right — the right to vote — akin to the right to freedom denied in Williams Thus, while the interest of the State in collecting child support may be "legitimate" or even "substantial," Williams, 399 U.S. at 238, 90 S.Ct. 2018, it is not rational to achieve that interest in a manner that discriminates against particular felons on the basis of their wealth.

The conclusion that § 40-29-202(b) and (c) result in A wealth-based distinction that is not rationally related to a legitimate government objective is underscored by James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972). In Strange, the Supreme Court unanimously invalidated under rational-basis review a Kansas recoupment statute that operated to treat indigent defendant debtors differently from other debtors. The statute appeared neutral on its face, but a close examination of the provision made clear that it "strippedl from indigent defendants" who were attempting to repay the debt accrued from their appointment of counsel `'the array of protective exemptions Kansas had erected for other civil judgment debtors." Id. at 135, 92 S.Ct. 2027. As in Williams, the Court "recognize[d] that state recoupment statutes may betoken legitimate state interests," but it emphasized that "these interests are not thwarted by requiring more even treatment of indigent criminal defendants with other classes of debtors." Id. at 141, 92 S.Ct. 2027. And the Court held that the recoupment statute "embodie[d] elements of punitiveness and discrimination[,] which vdolate[d] the rights of citizens to equal treatment under the law." Id. at 142, 92 S.Ct. 2027. Here, too, there is no legitimate policy reason for Tennessee to treat felons who have outstanding obligations and are unable to pay any differently from those who owe no financial obligation when it comes to providing for their automatic enfranchisement.

Moreover, there is no question that the instant case falls within the purview of the above-mentioned Supreme Court precedents addressing the rationality of wealth-based distinctions. The Supreme Court made this plain in San Antonio Independent School District v. Rodriguez, when it stated that Griffin, Williams, and their progeny are controlling when plaintiffs share the following "two distinguishing characteristics": first;, "because of their impecunity they [are] completely unable to pay for some desired benefit," and second, "as a consequence [of their impecunity], they sustain[] an absolute deprivation of a meaningful opportunity to enjoy that benefit." San Antonio Indep. Sch. Dist., 411 U.S. at 20, 93 S.Ct. 1278. The Plaintiffs in the instant case are unable to pay their financial obligations, which is a prerequisite to obtaining the re-enfranchisement benefit that they seek, and given that Tennessee otherwise provides for the automatic restoration of the right of suffrage upon the satisfaction of these sums, it is as a consequence of their indigency that they suffer an absolute deprivation of their right to vote. See also id. at 20-22, 93 S.Ct. 1278 (discussing cases where the "class discriminated against" satisfied the two criteria); M.L.B., 519 U.S. at 127, 117 S.Ct. 555 ("Sanctions of the Williams genre . . . are wholly contingent on one's ability to pay, and thus visit different consequences on two categories of persons; they apply to all indigents and do not reach anyone outside that class." (internal quotation marks and citation omitted)).

Furthermore, to the extent that the Supreme Court has limited Griffin and its progeny to those legislative classifications where the government retains a "legal or a practical monopoly" over the benefit that is the concern of the legislation, Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450, 460, 108 S.Ct. 2481, 101 L.Ed.2d 399 (1988), the instant case falls within that limitation. Like access to the courts, the Plaintiffs have no choice but to engage with the State of Tennessee in seeking the restoration of the right to vote. There is simply "no alternative to that process," id., other than to forgo seeking re-enfranchisement altogether. In sum, Tennessee has conditioned the ability of the Plaintiffs to regain their right to vote on their payment of legal financial obligations, notwithstanding the fact that they cannot pay, thereby codifying a wealth-based distinction that has no rational relationship to a legitimate State objective. Under Supreme Court precedent, § 40-29-202(b) and (c) cannot withstand rational-basis review.

3. Supreme Court Disenfranchisement Jurisprudence Supports a Conclusion that § 40-29-202(c) Is Unconstitutional Because It Is Neither Part of the Criminal Sentence for the Felony for Which the State Constitutionally Denied Suffrage Nor Is it Otherwise Related to the Fact of Conviction.

Apart from the reasons set forth above, which are grounded in traditional rational-basis review, I believe it necessary to high-light one additional reason that subsection (c) of § 40-29-202 is constitutionally suspect. Unlike the several felon re-enfranchisement cases that courts have confronted across the Circuits, under § 40-29-202(c), Tennessee has decided to impose on those felons seeking re-enfranchisement an obligation — the payment of child-support arrears — that is entirely divorced from the reason for which Tennessee was empowered to deny them the franchise in the first place. Although the Supreme Court has never addressed specifically the bounds of felon re-enfranchisement, the Court's cases involving felon disenfranchisement highlight the very limited basis upon which States are empowered to deny absolutely the right of suffrage and counsol against the majority's holding that * 40-29-202(c) is constitutionally sound.

The Supreme Court first upheld the constitutionality of felon-disenfranehisement statutes in Richardson v. Ramirez. In that case, the Court determined that an "affirmative sanction" for felon-disenfranehisement existed in § 2 of the Fourteenth Amendment, Richardson, 418 U.S. at 54-55, 94 S.Ct. 2655, which explicitly linked permissible disenfranchisement to an individual's "`participation in rebellion, or other crime," " id. at 42-43, 94 S.Ct. 2655 (quoting U.S. Const, amend. XIV, S 2). Despite holding that a state could constitutionally disenfranchise felons, however, the Court made plain that disenfranchisement laws are no-: insulated completely from constitutional challenge by remanding the case for the state court to determine whether "a total lack of uniformity in county election officials' enforcement of the challenged [f]elon disenfranchisement provision. . . work[ed] a separate denial of equal protection." Id. at 56, 94 S.Ct. 2655; see also 0'ivens v. Barnes, 711 F.2d 25, 26-27 (3d Cir. 1983) ("It has not been seriously contended that Richardson precludes any equal protection analysis when the state legislates regarding the voting lights of felons."). In Hunter v. Undenvood, the Court further clarified the boundaries of the states' disenfranchisement power, stating again that such laws are not insulated completely from challenge under the. Equal Protection Clause. Exemplifying this principle, the Court invalidated a provision in the Alabama State Constitution that disenfranchised individuals who had committed crimes of moral turpiuide and that the Legislature had enacted with an intent to discriminate against a suspect class. Hunter v. Underwood, 471 U.S. 222, 238, 105 S.Ct., 1916, 85 L.Ed.2d 222 (1985).

Although neither Richardson nor Hunter addresses the precise question before this panel, both cases emphasize that the ability to disenfranchise stems directly and solely from an individual's commission of a qualifying crime, as contemplated by the plain language of § 2 of the Fourteenth Amendment. They further counsel that laws related to felon suffrage are not immune from constitutional attack and that there are some instances in which such laws will be invalid. Analyzing § 40-29-202(c) in light of Richardson and Hunter, even assuming it could withstand traditional rational-basis scrutiny, I believe that, in order to withstand a constitutional challenge, the basis upon which the states may condition re-enfranchisement for felons must be related to the criminal conviction for which the State was first authorized to abridge suffrage — i.e., the Constitution's explicit "affirmative sanction" for such laws. See Shepherd, 575 F.2d at 1114 ("Nor can we believe that section 2 would permit a state to make a completely arbitrary distinction between groups of felons with respect to the right to vote."); Owens, 711 F.2d at 27 (expressing sincere doubt that the state could "disenfranchise similarly situated blue-eyed felons but not brown-eyed felons"). The requirement that the Plaintiffs pay child-support arrears prior to the restoration of their right to vote cannot meet this test, as it is a requirement completely divorced from the underlying conviction for which the U.S. Constitution authorized Tennessee to disenfranchise the Plaintiffs.

The suspect nature of this particular provision is reinforced by cases from both federal and state courts that have addressed and upheld the constitutionality of various laws relating to felon disenfranchisement, See, e.g., Harvey v. Brewer, 605 F.3d 1067 (9th Cir. 2010); Hayden v. Paterson, 594 F.3d 150 (2d Cir. 2010); Owens, 711 F.2d at 27-28; Shepherd, 575 F.2d at 1114; Madison v. Washington, 161 Wash.2d 85, 163 P.3d 757 (2007). Unlike the child-support-payment provision at issue here, the laws in each of the above-referenced cases involved distinctions or classifications falling into two general, somewhat overlapping, categories that were undeniably related to the predicate conviction: (1) laws requiring that the felon complete the sentence for the disenfranchising felony and (2) laws differentiating between the type of felony committed or the type of sentence imposed for that felony.

In the first category of cases, the laws at issue in both Harvey and Madison conditioned re-enfranchisement on whether the felon seeking the right to vote had completed the sentence for the disenfranchising felony. In Harvey, the law provided that a person convicted of a single felony automatically was entitled to the restoration of the right to vote if the person paid "`any fine or restitution imposed. `" Harvey, 605 F.3d at 1070 (quoting Ariz. Rev. Stat. § 13-912CA)). The Ninth Circuit upheld the restitution-repayment requirement on the grounds that "Arizona has a rational basis for restoring voting rights only to those felons who have completed the terms of their sentences, which includes the payment of any fines or restitution orders." Id. at 1079. The panel continued by noting that "[j]ust as States might reasonably conclude that perpetrators of serious crimes should not take part in electing government officials, so too might it rationally conclude that only those who have satisfied their debts to society through fulfilling the terms of a criminal sentence are entitled to restoration of their voting rights." Similarly, in Madison, the Washington Supreme Court upheld a statute that required felons seeking the restoration of suffrage to satisfy any outstanding victim restitution, court costs, and fees associated with their disenfranchising felonies. Madison, 163 P.3d at 761, 772. The court reasoned that the restitution was part of the felony sentences and that "[t]he State clearly has an interest in ensuring that felons complete all of the terms of their sentence." Id. at 772. Harvey and Madison are thus distinguishable from the instant case with respect to subsection (c) because Tennessee is conditioning the restoration of suffrage on the payment of a sum of money that was neither part of the sentence for the predicate felony nor remotely related to the rehabilitation for the disenfranchising conviction.

The second type of case where courts have upheld felon-disenfranchisement laws that distinguished among felons involves provisions that set re-enfranchisement eligibility on the basis of the type of sentence the felon received for the predicate felony or the type of disenfranchising felony that the individual committed. As with the first category of cases, these distinctions also relate to rehabilitation for the underlying offense. For example, in Hayden v. Paterson, a panel of the Second Circuit upheld two separate felon-disenfranchisement provisions against an equal-protection challenge. The provisions at issue disenfranchised incarcerated felons and unincarcerated felons "who ha[d] finished their prison terms, but [who were] still on parole" but allowed those felons who received "suspended sentences" to regain the right to vote. Hayden, 594 F.3d at 171. Although believing it an "oddity" that the State would distinguish between felons in the manner that it did, the panel nevertheless determined that such distinction was rational. Id. Alter all, the legislature could have believed that the type of sentence imposed for a potentially disenfranchising conviction was a reflection of the seriousness of the individual's crime and by extension the individual's ability to be a responsible voting citizen. See id. ("Where a judge has determined that imprisonment is not necessary it is difficult to perceive any useful purpose to be served by denying a convicted person the right to vote during the period of probation or conditional release." (quoting a letter from the Legal Aid Society); see also Owens, 711 F.2d at 27-28 (upholding a statute that allowed unincarcerated felons to vote but disenfranchised incarcerated felons); Shepherd, 575 F.2d at 1114-15 (deeming constitutional a provision that reenfranchised felons who were convicted in state court but that required federal felons to obtain a presidential pardon). Again, however, Hayden, Oivens, and Shepherd, are distinguishable from the instant ease because, as in Madison and Harvey, the laws' classifications were related to the predicate felony for which the state was authorized to disenfranchise the felons in the first place, and the laws furthered the states' interests in disenfranchising particular felons as a result of their criminal activity — i.e., the "affirmative sanction" for disenfranchisement found in the Constitution.

By differentiating between those felons who owe a financial obligation completely unrelated to their crime, § 40-29-202(c) is materially distinct from those provisions that courts have held withstand scrutiny. As the Supreme Court emphasized in Richardson, the Constitution expressly limits the government's power to disenfranchise to only those individuals who have committed a crime, and I believe that any law further qualifying a felon's right to vote must be viewed in light of the Constitution's limitation. I thus question whether those classifications that are wholly un-related to the predicate conviction, such as § 40-29-202(c), can ever be constitutional, even assuming we can develop some reason that they may, in fact, be rational.

4. Conclusion

In conducting a rational-basis inquiry, we "seek only the assurance that the classification at issue bears some fair relationship to a legitimate public purpose." Plyler, 457 U.S. at 216, 102 S.Ct. 2382. However, "[r]ational basis review, while deferential, is not `toothless.'" Peoples Rights Org., Inc. v. City of Columbus, 152 F.3d 522, 532 (6th Cir. 1998) (quoting Mathews v. Lucas, 427 U.S. 495, 510, 96 S.Ct. 2755, 4fl L.Ed.2d 651 (1976)). In light of the absence of any rational purpose for the disparate treatment sanctioned by § 40-29-202(b) and (c), as well as the Supreme Court's reluctance to deem rational state-imposed qualifications drawn along economic lines that inhibit the exercise of any right over which the state has a monopoly, I would hold that the provision requiring payment of child support and restitution prior to the restoration of suffrage, regardless of an individual's ability to pay, cannot withstand constitutional scrutiny.

One of the primary reasons that "courts are quite reluctant to overturn governmental action on the ground that it denies equal protection of the laws" is because "[t]he Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process." Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979); City of Cleburne, 473 U.S. at 440, 105 S.Ct. 3249. The instant case, however, is a perfect example of when this is unlikely to be the case. A "restriction["] upon the right to vote" undeniably "restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation." United States v. Carolene Prods. Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). Felons are clearly a politically unpopular group, and it is unlikely that anyone else will carry the banner for them. The district court erred in granting judgment on the pleadings with regard to this claim, and I must respectfully dissent from the majority's resolution of the Plaintiffs' Equal Protection Clause challenge.

B. Twenty-Fourth Amendment Claim

Turning to the Plaintiffs' next claim, I would hold that the Plaintiffs have alleged sufficient facts to state a claim for relief under the Twenty-Fourth Amendment to the U.S. Constitution and that judgment on the pleadings was therefore improper. Section 1 of the Twenty-Fourth Amendment provides, in relevant part, that the right to vote in federal elections "shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax." U.S. Const, amend. XXIV. The Amendment was enacted to prevent "the disenfranchisement of the poor," Harman v. Forssenius, 380 U.S. 528, 539, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965), and by its plain language creates an absolute prohibition on "any poll tax or other tax." U.S. Const. amend. XXIV.

The Twenty-Fourth Amendment is not subject to the same analysis as a statute under the Equal Protection Clause of the Fourteenth Amendment, with its various forms of scrutiny, or the balancing tests set forth in the Supreme Court's votingrights cases. Instead, if a payment constitutes a "poll tax or other tax," U.S. Const. amend. XXIV, and it denies or abridges the right to vote, then it is unconstitutional. It does not matter whether an individual is capable of paying. See Harman, 380 U.S. at 542, 85 S.Ct. 1177 ("For federal elections, the poll tax is abolished absolutely as a prerequisite to voting . . ."). A threshold question that the court must face when confronted with the Plaintiffs' Twenty-Fourth Amendment claim, however, is whether the payments at issue here constitute a "tax" within the meaning of the Amendment. Because I believe that the Amendment's prohibition on "other tax[es]" includes portions of the payments potentially required under § 40-29-202(b) and (c), and that the Plaintiffs' right to vote is being abridged or denied by their failure to pay those taxes, I would hold that judgment on the pleadings with respect to this claim was improper.

There is relatively little guidance from the Supreme Court as to the scope of the Twenty-Fourth Amendment apart from its decision in Harman, which was the Court's first opportunity to construe the Amendment. Harman, 380 U.S. at 529, 85 S.Ct. 1177. In Harman, the Court addressed the validity of Virginia's newly amended voter-registration law, which, in direct response to the enactment of the Twenty-Fourth Amendment, had "removed the poll tax as an absolute prerequisite to qualification for voting in federal elections, but in its stead [had] substituted a provision whereby the federal voter could qualify either by paying the customary poll tax or by filing a certificate of residence six months before the election." Id. at 540, 85 S.Ct. 1177. The Supreme Court concluded that "in order to demonstrate the invalidity of the Virginia provision under the Twenty-Fourth Amendment, "it need only be shown that [the statute] impose[d] a material requirement solely upon those who refuse[d] to surrender their constitutional right to vote in federal elections without paying a poll tax." Id. at 541, 85 S.Ct. 1177. In other words, the statute was unconstitutional if the requirement that the individual file a certificate of residency imposed a material obstacle upon the voting ability of those "those who assert[ed] their constitutional exemption from the poll tax." Id.

After reviewing the certificate-of-residency requirement, the Court held that the filing requirement that the statute "imposed upon the voter who refuse[d] to pay the poll tax constitute[] an abridgment of [the] right to vote by reason of failure to pay the poll tax" and contravened the Twenty-Fourth Amendment. Id. at 542, 85 S.Ct. 1177. It is important to note, however, that the Court in Hannari did not opine or. whether the certificate-of-residency requirement itself fell within the Amendment's "other tax" language. Thus, the Supreme Court has not addressed directly the threshold question presently before this panel: Whether the requirement that the Plaintiffs pay restitution and child-support arrears amounts to a "tax" within the meaning of the Twenty-Fourth Amendment's proscriptions.

The majority claims that § 40-29-202(b) and (c) do not invoke the Twenty-Fourth Amendment's protections because they condition voting on payments of obligations that the "Plaintiffs themselves incurred," and "do not represent taxes on voting imposed by the state." Maj. Op, at 751. I believe this reasoning infirm. Certainly, the types of payments at issue here are distinguishable from those in Harrrian and Harper. The contested payments in both of those cases were the payments that most commonly come to mind upon hearing the term "poll tax": That is, "[a] capitation tax; a tax of a specific sum levied upon each person within the jurisdiction of the taxing power and within a certain class," or "[a] tax upon the privilege of being." Black's Law Dictionary 1159 (6th ed. 1990); see Harper, 383 U.S. at 668-69, 86 S.Ct. 1079 ("Levy by the poll . . . is an old familiar form of taxation." (internal quotation marks omitted)); see also Harman, 380 U.S. at 529 n. 1, 530-32, 85 S.Ct. 1177 (describing the State of Virginia's poll-tax provisions). The payments at issue here are not capitation or head taxes. But, as mentioned, the plain text of the Twenty-Fourth Amendment does not prohibit only capitation taxes as a voting qualification. The plain language of the Amendment precludes the imposition of any "other tax," and the Harman Court made plain that because the Amendment's drafters intended the Amendment to "nulli[y] sophisticated as well as simple minded modes of impairing the right" to vote, Harman, 380 U.S. at 540-11, 85 S.Ct. 1177 (internal quotation marks omitted), the absolute prohibition on taxes includes their "equivalent or milder substitute[s]." Id. at 542, 85 S.Ct. 1177.

1. Portions of the Payments Under § 40-29-202(b) and (c) Are Taxes.

There is a notable absence of case law developing what constitutes an "other tax" such that it falls within the purview of the Twenty-Fourth Amendment. And those cases that do address whether a particular payment amounts to a tax are largely un-helpful because they deal almost exclusively with the costs levied indirectly on the right to vote as a result of voter-identification requirements and fail to analyze the issue under the Twenty-Fourth Amendment's "other tax" language. See, e.g., Gonzalez v. Arizona, 485 F.3d 1041, 1049 (9th Cir. 2007) (holding, without much discussion, that Arizona's identification law did not amount to a poll tax under the Twenty-Fourth Amendment); Ind. Democratic Party v. Rokita, 458 F.Supp.2d 775, 826-27 (S.D.Ind. 2006) (rejecting a poll-tax challenge to Indiana's photo-identification law, but curiously failing to cite or explicitly analyze the Twenty-Fourth Amendment), aff'd sub nom, Crawford v. Marion County Election BcL, 472 F.3d 949 (7th Cir. 2007), aff'd 553 U.S. 181, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008); Common Cause/Ga. v. Billups, 439 F.Supp.2d 1294, 1354-55 (N.D.Ga. 2006) (holding Georgia's revised photo-identification statute did not constitute a poll tax under the Twenty-Fourth Amendment); Common Cause/Ga. v. Billups, 406 F.Supp.2d 1326, 1366-70 (N.D.Ga. 2005) (finding "a substantial likelihood of success" on the claim that Georgia's photo-identification requirement imposed an unconstitutional poll tax in violation of the Twenty-Fourth Amendment); In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA. 71 , 479 Mich. 1, 740 N.W.2d 444, 463-66 (2007) (holding that Michigan's identification law did not amount to a poll tax under the Twenty-Fourth Amendment and agreeing with Rokita's reasoning); cf Weinschenk v. State, 203 S.W.3d 201, 213-14 (Mo. 2006) ("While requiring payment to obtain a birth certificate is not a poll tax . . . it is a fee . . . [and] Harper makes clear that all fees that impose financial burdens on eligible citizens' right to vote, not merely poll taxes, are impermissible under federal law.").

As the precise question at issue here is one of first impression in this Circuit, I turn first to the Twenty-Fourth Amendment's text. The Supreme Court has emphasized on numerous occasions that in interpreting the text of an Amendment, the courts "are guided by the principle that `[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.'" District of Columbia v. Heller, ___ U.S. ___, 128 S.Ct. 2783, 2788, 171 L.Ed.2d 637 (2008) (quoting United States v. Sprague, 282 U.S. 716, 731, 51 S.Ct. 220, 75 L.Ed. 640 (1931)) (alteration in original). "Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens" at the time the Amendment was proposed and ratified. Id.

Section 1 of the Amendment reads:

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or "Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

U.S. Const, amend. XXIV. In determining what types of "other tax[es]" the drafters had in mind, the common dictionary definitions of the term "tax" are a useful starting point, At the time of the Twenty Fourth Amendment, "tax" was ordinarily defined as "a usu[allyj pecuniary charge imposed by legislative or other public authority upon persons or property for public purposes: a forced contribution of wealth to meet the public needs of a government." Webster's Third New International Dictionary 2345 (14th ed. 1961 15th ed. 1966). Similarly, the legal definition of "tax'" at the time of the Amendment's deliate and ratification was "(a] forced burden, charge, exaction, imposition, or contribution assessed in accordance with sortie reasonable rule of apportionment by authority of a sovereign state upon the persons or property within its jurisdiction to provide public revenue for the support of the government, the administration of the law, or the payment of public expenses." Ballentine's Law Dictionary 1255 (3d ed. 1969); see Black's Law Dictionary 28 (4th ed. 1951) ("[A] pecuniary contribution . . . for the suppert of a government,"); see. also United States v. State Tax Comm'n of Miss. . 421 U.S. 599, 606, 95 S.Ct. 1872. 44 L.Ed.2d 404 (1975) (indicating that the "standard definition of a tax" is an "`enforced contribution to provide for the support of government.'" ((juoting United States v. La Franca, 282 U.S. 568, 572, 51 S.Ct. 278, 75 L.Ed. 551 (1931))). In essence, a "tax" at the time of the Amendment had the following essential components: (1) that it be levied by the government (2) for the support of the government or the general public.

Contrary to the Plaintiffs' contention, the entirety of the payments at issue here is unlikely to fit the common definition of "tax." Although child-support and restitution orders amount to forced monetary contributions imposed by the State of Tennessee or the U.S. Government, their primary purpose is to benefit dependent children and the victims of the Plaintiffs' criminal actions, as opposed to the public needs of the government. As a result, I believe that as a general matter these payments may be more appropriately viewed as debts. See Black's Law Dictionary 1628-29 (4th ed. 1951) (noting in the "Practice" section of the definition of "tax" that a tax, "[i]n a general sense, [is] any contribution imposed by government upon individuals, for the use and service of the state, whether under the name of toll, tribute, tallage, gabel, impost, duty, custom, excise, subsidy, aid, supply, or other name. And in its essential characteristics is not a debt" (emphasis added)); see also United States v. Reorganized CF I Fabricators of Utah, Inc., 518 U.S. 213, 220, 224, 116 S.Ct. 2106. 135 Ij.Ed.2d 506 (1996) (distinguishing between a tax and a debt under bankruptcy law); cf. In re Jenny Lynn Mining Co.; Spiers v. Ohio Dep't of Natural Res., 780 F.2d 585. 589 (6th Cir. 1986) ("One of the characteristics of a tax as opposed to a fee is that a tax is an exaction for public purposes rather than a voluntary payment for a private benefit.").

But, in fact, I need not decide that broader question here because my inquiry does not end with consideration of the entirety of the payments required under § 40-29-202(b) and (c). Although we may understand child-support and restitution payments as generally being paid for the benefit of a party other than the government, a closer inspection of the obligations at issue here indicates that the government does reap a specific and definable pecuniary benefit from at least some of the obligations required by Tennessee's statute. In the case of child-support arrears, Tennessee law specifically authorizes the State to augment an individual's obligation by five percent, which is payable to the government and is plainly for its benefit. With regard to state and federal restitution orders, there are also instances in which the government is the recipient and intended beneficiary of an individual's payments. Thus, regardless of whether the entirety of the payments required by § 40-29-202(b) and (c) can be properly defined as taxes in each case where they are imposed, at least some of those required payments can be so classified.

Looking to Tennessee's child-support-payment provisions, pursuant to Tennessee Code § 8-21-403(a), the Tennessee clerk of a court who "receiv[es], handl[es,] and disburs[es] . . . child support . . . under and by order of court is entitled to charge and receive from the obligor the sum of five percent (5%) for any and all payments received during each calendar month." The five-percent addition is not levied separately from the child-support order; instead, it is "an obligation of the obligor and shall be added to the amount of court-ordered child support, making the total obligation of the obligor the support plus the clerk's fee." Id. In the event that an individual can afford to pay a portion of his or her child-support arrears and remits that payment to the clerk, the clerk is directed to "prorate any such partial payment as to support and clerk's fee." Id. Thus, despite having paid the totality of the original sum owed, an individual would still be precluded from voting as a result of the failure to pay only the state's five-percent levy. In essence, although a child-support obligation in the most general sense may be more properly considered something other than a tax, the five-percent levy added to that obligation, and which by statute becomes part of that obligation, is an enforced contribution in support of the government — i.e., a "tax."

The restitution that § 40-29-202(b) requires an individual to pay prior to the restoration of suffrage includes both state and federal obligations, so I must look to how each operates to determine whether § 40-29-202(b) imposes an unconstitutional tax. Because there are instances where an individual is obligated to pay restitution to either the state or federal government and that money is allocated to programs for the benefit of the government and the general public, I would hold that § 40-29-202(b) can impose an invalid tax.

First, under Tennessee law, there is at least one circumstance where a defendant is required "to make restitution to the state . . . for deposit into the state general fund." Tenn. Code Ann. § 40-35-320(a), (d). I believe that in such case, the restitution would plainly amount to a "tax" because under § 40-35-320 a restitution order would amount to a forced contribution of wealth to the State for the general benefit of both the State and the public. See also Tenn. Code Ann. § 39 "17" 417(c)(2)(B) (requiring that certain drug-related sentences include "restitution to any government entity for the costs reasonably incurred in cleaning the area in which [the drug] offense occurred"). Second, in the federal system, restitution orders are generally "governed by the Victim and Witness Protection Act of 1982 ("VWPA",'." United States v. Webb, 30 F.3d 687, 689 (6th Cir. 1994) (citing 18 U.S.C. §§ 3663, 3664). Although an order of restitution under the VWPA is typically paid to and for the benefit of the victim of the crime, id.; see also 18 U.S.C. § 3663(a)(1)(A), there is, however, at least one exception relevant to the instant case. Pursuant to s 3663(c), when a defendant hag been convicted of a crime under the Controlled Substances Act and when there is `no identifiable victim, the court may order that the defendant make restitution" to the federal government. 18 U.S.C. § 3663(c)(1). The money collected is then distributed to the State within which the crime occurred, with "65 percent: of the total amount" being "paid to the State entity designated to administer crime victim assistance," id. § 3663(c)(3)(A), and "35 percent of the total amount of restitution" being "paid to the State entity designated to receive Federal substance abuse block grant funds," id. § 3663(c)(3)(B).

Restitution awarded under § 3663(c) certainly fits the above-referenced definitions of a "tax." Section 3663(c) imposes a monetary obligation upon an individual, and the statute makes plain that the restitution is collected and then redistributed to fund state-run programming for the general benefit of its citizens. See also Reorganized CF I Fabricators, 518 U.S. at 224, 116 S.Ct. 2106 ("[A] tax is a pecuniary burden laid upon individuals or property for the purpose of supporting the Government." (internal quotation marks omitted)); cf. Wright v. McClain, 835 F.2d 143, 144, 145 (6th Cir. 1987) (holding that a statute requiring "any person on parole or granted a suspension of sentence in Tennessee" to pay thirty-five dollars per month into funds for the Corrections Department to "defray the cost to the general public of monitoring and supervising the behavior of convicted offenders and to compensate, in some measure, victims of criminal misconduct" imposed a tax). Again, although many restitution orders may not amount to a tax, I need not reach that broader question because some of the restitution orders that § 40-29-202(b) does encompass do impose a prohibited tax, and the Plaintiffs have stated a viable claim. 2. Section 40-29-202(b) and (c) Operate Analogously to a Poll Tax.

My conclusion that some of the payments required under § 40-29-202(b) and (c) amount to a prohibited tax is not altered by the fact that these payments may also meet the broader definition of a debt because my analysis of whether § 40-29-202(b) and (c) require payment of a "tax" as a prerequisite to voting does not stop with definitions. Instead, a comparison of the poll tax at issue in Harmon to the payments required here also helps to clarify the parameters of the definition of tax and provides further support for my conclusion that the Twenty-Fourth Amendment encompasses at least a portion of the payments required by § 40-29-202(b) and (c).

Tellingly, at the most fundamental level, § 40-29-202(b) and (c) operate in the same manner as the indisputably forbidden "poll tax" "they both require an individual who desires to vote to pay a monetized sum as an absolute condition to casting a ballot in a federal election. This similarity is extremely relevant given that "[o]ne of the basic objections to the poll tax was that it exacted a price for the privilege of exercising the franchise" and that the primary motivation of the Amendment was "a general repugnance to the disenfranchisement of the poor occasioned by failure to pay the tax." Harmon, 380 U.S. at 539, 85 S.Ct. 1177; see also Harper, 383 U.S. at 668, 86 S.Ct. 1079. The fact that § 40-29-202(b) and (c) set the price for the privilege of voting at something besides a government-imposed per capita levy is not determinative. The statute sets a price nonetheless, and this is the exact evil that the Twenty-Fourth Amendment was meant to address.

The majority implies that the Twenty-Fourth Amendment prohibits only those payments that the State imposed with a specific purpose to inhibit exercise of the franchise and those payments that a person would not otherwise be required to make. The specific poll tax at issue in Harmon, however, counsels the opposite conclusion, and provides another point of comparison between the clearly unconstitutional "poll tax" and the payments in the instant case. This again supports the conclusion that, at the very least, parts of the payments required under the Tennessee statute are properly considered taxes. In Virginia, the failure to pay the poll tax not only precluded the exercise of suffrage, but it also amounted to a separately enforceable financial obligation or debt similar to an order for restitution or an order for the payment of child-support arrears. See Harper, 383 U.S. at 664 n. 1, 86 S.Ct. 1079; Frederic D. Ogden, The Poll Tax in the South 64 (1958) ("In Virginia, collection of the poll tax is enforceable . . . [once] the tax has become three years past due." (citing Va. Const. § 22)). Moreover, an individual could not avoid payment of the poll tax by not voting. "Property owners [we]re assessed for the poll tax along with assessment of their property," and "[s]ome county officials ma[d]e an effort to assess all who [we]re liable," leading to instances where "citizens pa[id] the poll tax as an item of the general tax bill without realizing that they ha[d] done so." Id. at 65-66. In other words, it is not true that those taxes the Twenty-Fourth Amendment prohibits can be narrowly defined to include only otherwise avoidable payments that remain uncollected except as a prerequisite to the exercise of suffrage. As the Plaintiffs in the instant case "themselves incurred" their obligations apart from their attempt to vote, Maj. Op. at 751. so did the potential federal voters in Virginia. At the time of the Twenty-Fourth Amendment, poll-tax obligations were levied by the various governments, amounted to enforceable debts, and were frequently paid regardless of whether an individual ever attempted to vote.

The poll taxes that existed in several other states at the time of the Twenty-Fourth Amendment also support the conclusion that what amounts to a prohibited "other tax" is not restricted to only those monetary obligations that are tied exclusively to the right to vote and not otherwise owed as debts or similar financial obligations. In Arkansas, payment of the poll tax was not simply a prerequisite to voting but was required to obtain "a state or municipal license or permit of any kind and to receive any salary or other compensation from public funds." Ogden, Poll Tax, Suprv at 61. "In Mississippi payment [wa]s voluntary and no bills [we]re sent out," but the State did "make the tax a lien upon taxable property." Id. at 63. "[P]oll tax delinquents [in Texas were] subject to three additional days of road work over the five days normally required or to the payment of a fine of $3.00," and the State "Ievi[ed] penalties upon [a] late poll tax payment," in the same manner "as for other delinquent taxes." Id. at 68. In 1948 in South Carolina, "poll tax collections were prosecuted like those for other taxes." Id., at 72.

Even Tennessee's poll tax, although abolished prior to the Amendment's ratification, "had fairly stringent provisions relative to its payment," id., and amounted to a financial obligation regardless of and independent from the desire or attempt to exercise franchise. As reflected in the Tennessee Code from 1934, the payment of the poll tax was tied to the payment of property taxes, the state levied penalties for delinquency, and delinquent taxpayers were at risk of "the sale of his personal property and to garnishment proceedings." Id,; see Williams Tenn. Code §§ 1559, 1547, 1574, 1577 (1934). Again, analogous to the payments that the Plaintiffs in the instant case face, poll-tax assessments were individually incurred, independently collectable financial obligations that were owed regardless of one's actual attempt to exercise the right of suffrage. Thus, although the child-support arrears and restitution payments outlined above could also be classified as debts, so too could those poll taxes in existence at the time of the Twenty-Fourth Amendment's ratification.

In sum, the text of the Amendment as well as the similarities between the quintessential "poll tax" at issue in Harman and the payments challenged here lead me to conclude that portions of the financial preconditions to voting that the Plaintiffs now face amount to a tax on voting of the kind that the Twenty-Fourth Amendment prohibits.

3. The Legislative History of the Twenty-Fourth Amendment Indicates that Congress Intended to Preclude the Payment of Money Generally.

The legislative history of the Twenty-Fourth Amendment further supports my conclusion that at least a portion of the child-support and restitution orders under § 40-29-202(b) and (c) falls within the drafters' conception of the Amendment's prohibition. The Senate did not issue a Committee Report for the Amendment until after it was approved. See S.Rep. No. 87-305, at 11-13 (1962). The contemporaneous House of Representatives Committee Report, however, does recognize that the Amendment's text extended beyond poll taxes and "would also prevent both the United States and any State from setting up any substitute tax in lieu of a poll tax." See Proposed Constitutional Amendment: Poll Tax as a Qualification for Voting, H.R. Rep. No. 87-1821 (1962), reprinted in 1962 U.S.C.C.A.N. 4033 (1962). The House Report stopped short of delineating what types of taxes qualified as these "substitute tax[es]," but the Report indicated that the Amendment would "prevent[] the nullification of the amendment's effect by a resort to subterfuge." Id. at 4037. The types of payments that fall within the definition of "tax" must therefore be determined with this legislative purpose in mind. Certainly the requirement that an individual pay the above-described sums as a prerequisite to voting thwarts the stated purpose of the Amendment to eliminate pecuniary "obstacle[s] to the proper exericse [sic] of a citizen's franchise." Id. at 4035.

The Senate and House debates, as well as the House hearings on the elimination of the poll tax, further indicate that Congress envisioned that the Amendment's prohibition on the use of an "other tax" would encompass the payments of money generally and would certainly reach those portions of child-support and restitution orders payable to the government and for its benefit, if not the obligations in their entirety. For example, during the Hearings before the House Committee on the Judiciary, Representative Gonzalez indicated that "[t]here should not be any price tag or any other kind of tag on the right to vote." Abolition of Poll Tax in Federal Elections: Hearing on H.J. Res. 404, 425, 434, 594, 601, 632, 655, 663, 670 S.J. Res. 29 Before the Subcomm. No. 5 of the H. Comm. on the Judiciary, 87th Cong., 2d Sess. 15 (1962). And alluding to the manner in which I have analyzed the Tennessee provisions above, Representative Gonzalez counseled that "tax" should be defined "within the framework of the history and the payment of the poll tax or similar taxes." Id. at 17, The Hearings also addressed the "other tax" language directly, noting that it was fairly broad and would prevent the government from levying "say, a property tax, a real estate, ad valorem[] tax[,] . . . [or] a property tax on automobiles." Id. at 51.

The Senate debates did not address at any length the potential scope of the Amendment's "other tax" language or what might amount to a forbidden poll-tax substitute. Senator Javits, however, spoke of eliminating any "encumbrance" on the right to vote of the poll tax's "character." 108 Cong. Rec. at 4155. As outlined above, at least some of the payments required under § 40-29-202(b) and (c) share fundamental characteristics with the poll tax. Again, they are forced monetary contributions paid to the government for the benefit of the government or the general public, regardless of the fact that may also amount to independently collectable debts.

The statements made during the House debates are a bit more helpful in defining those payments that the Amendment was intended to reach, and they demonstrate that it was not only those payments that fit within the technical definition of a tax that the Amendment targeted. Representative Fascell, explaining his support for the Amendment, made clear that "the payment of money whether directly or indirectly, whether in a small amount or in a large amount should never be permitted to reign as a criterion of democracy." 108 Cong. Rec. at 17657 (emphasis added). "There should not be allowed a scintilla of this in our free society." Id. Representative Joelson also spoke in support of the Amendment, declaring it "unthinkable that in the United States, there are still areas in which American citizens are required to pay for the right to vote." Id. at 17662. Representative Boland stated that "there should not be any price tag or any kind of tax on the right to vote." Id. at 17666 (emphasis added). "For some people, this financial imposition may be enough to discourage participation in the electoral process." Id. Representative Yates exclaimed that, "[p] lacing the payment of a fee between the' voter and the ballot box is distinctly not in keeping with the ideals of our democracy." Id. (emphasis added). Representative Gallagher stated, " Any charge for voting unjustly discriminates against people of limited means." Id. at 17667 (emphasis added). "And whatever the amount of money, a citizen of the United States should not have to pay for his constitutional right to vote." Id. Representative Curtis highlighted the "important fight to cast a free ballot." Id. at 17668. And, finally, Representative Halpern advocated for the Amendment's passage as a step toward "outlawing th[e] undemocratic, feudal practice of placing a price tag on the right to vote." Id. at 17661 (emphasis added).

The drafters and supporters of the Twenty-Fourth Amendment plainly intended that the Amendment reach those payments of money that placed a price on the franchise, regardless of whether those taxes could also be characterized as debts or fees. See Harmon, 380 U.S. at 542, 85 S.CT. 1177. Reading "tax" too restrictively would undoubtedly conflict with this over-arching intent. In fact, albeit in the context of striking down the poll tax as unconstitutional in state elections under the Fourteenth Amendment, the Harper Court used the term "tax" interchangeably with "fee" in discussing the primary evil of the poll tax. See Harper, 383 U.S. at 668, 86 S.Ct., 1079 ("The principle that denies the State, the right to dilute a citizen's vote on account of his economic status or other such factors by analogy bars a system which excludes those unable to pay a. fee to vote or who fail to pay." (emphasis added)). This evidences the broader common understanding of what amounted to a tax on voting only a few short years after the Amendment's ratification, and, by extension, what meaning "other tax" may have had. It also emphasizes that the primary objection to the poll tax was the imposition of any pecuniary obstacle on an individual's right to vote.

In sum, a plain reading of the Twenty-Fourth Amendment's text, an analysis of the types of payments against which the drafters of the Amendment intended to guard based on the common understanding of the operation and characteristics of a "poll tax," and the legislative history of the Amendment leave me without a doubt that at least portions of Tennessee's required payments fall within the scope of the Amendment and constitute a prohibited "other tax." It is worth emphasizing again that the Amendment was enacted with the purpose of thwarting `"sophisticated as well as simple minded" attempts to disenfranchise the poor. Harman, 380 U.S. at 540, 85 S.Ct. 1177. And although the payments here may be reasonably justified outside of the election context, they are completely without a function in the State's administration of federal elections.

4. Section § 40-29-202(b) and (c) Abridge the Right to Vote.

Having concluded that at least portions of the payments required under § 40-29-202(b) and (c) amount to the type of "tax" that the Twenty-Fourth Amendment prohibits, I turn to whether those taxes deny or abridge the right to vote. See U.S. Const, amend. XXIV. They plainly do. Although it was the disenfranchisement statute that first denied the Plaintiffs the right to vote following their felony convictions, the Plaintiffs would be eligible automatically for the restoration of suffrage but for the pecuniary preconditions in § 40-29-202(b) and (c). In short, the only reason that the State is able to continue to deny the Plaintiffs the right to vote is because they are unable to pay what § 40-29-202(b) and (c) require. The Plaintiffs' right to vote in federal elections is impaired "by reason of failure to pay the . . . tax," Harman, 380 U.S. at 544, 85 S.Ct. 1177, and for no other reason. The district court erred in granting judgment on the pleadings on the Plaintiffs' claim under the Twenty-Fourth Amendment.

C. Tennessee State-Law Ex Post Facto Claim

With regard to the Plaintiffs' state-law ex post facto claim, I also depart from the majority's conclusion, and I would hold that § 40-29-202(b) and (c) are punitive in nature and that their retroactive application contravenes the Constitution of the State of Tennessee,

Article I, Section 11 of the Tennessee Constitution prohibits the creation of ex post facto laws. Tenn. Const, art. 1, § 11. "[T]he application of the Ex Post Facto Clause is a legal question subject to de novo review." Doe v. Bredesen, 507 F.3d 998, 1002 (6th Cir. 2007) (considering the U.S. Constitution). We also review de novo a district court's interpretation of a state constitution. Id. at 1003. Tennessee courts generally look to interpretations of the federal provision for guidance when analyzing state-based ex post facto claims. Id. at 1008. The Tennessee Supreme Court has indicated, however, that the state clause is interpreted more broadly than the federal one and provides stronger protection. See Miller v. State, 584 S.W.2d 758, 760-61 (Tenn. 1979) (rejecting a federal Supreme Court ex post facto holding as too restrictive under the state constitution); see also Decker v. Carroll Acad., No. 02A01-9709-CV-00242, 1999 WL 332705, *12 (Tenn.Ct.App. May 26, 1999) (unpublished) (noting that with regard to the ex post facto clause, "[t]he Tennessee Constitution can provide stronger protection than that provided by the United States Constitution," and citing State v. Middlebrooks, 840 S.W.2d 317. 338 (Tenn. 1992), among other cases).

"The [federal] Ex Post Facto Clause is implicated where, a law punishes retrospectively: a law is retrospective if it changes the legal consequences of acts committed before its effective date." Doe, 507 F.3d at 1003 (interna) quotation marks omitted). A claim under the federal Ex Post Facto Clause generally invokes a two-part inquiry. Firs!, we determine the nature of the challenger law, evaluating whether it is civil, regulatory, or punitive. See Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). If the legislature intended to impose a punishment and the law applies retroactively, however, then "that ends the inquiry." Id. "If, however, the. intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate the State's intention to deem v. civil." Id. (internal quotation marks and alteration omitted). In conducting this examination, we consider the seven factors outlined in Kennedy;. Mendoza-Martinez, 372 U.S. 144, 163-69, 83 S.Ct. 554, 9 L.Erl.2d 644 (1963). Smith, 538 U.S. at 97, 123 S.Ct. 1140.

Thus, the first and potentially dispositive question in the instant case, is whether the provisions requiring the payment of child-support arrears and restitution as preconditions to the restoration of a felon's right to suffrage are punitive. In making this determination, the task is one of statutory construction, id., at 92, 123 S.Ct. 1140, which begins with legislature's declared objective, id. at 93, 123 S.Ct. 1140, and proceeds to "[o]ther formal attributes of a legislative enactment, such as the manner of [the law's] codification or the enforcement procedures it establishes," id. at 94, 123 S.Ct. 1140. The express declarations of the Tennessee state courts as to the statute's purpose are also important because "state courts are the ultimate expositors of state law." Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).

1. Section 40-29-202(b) and (c) Are Punitive in Nature.

Conducting "he proper inquiry, I would hold that the challenged provisions are punitive. The legislative bill adding payment of restitution and child support as preconditions to the restoration of suffrage contains no express evidence regarding the Legislature's intent. See Doe, 507 F.3d at 1003-04 (`We first ask whether the Tennessee Legislature, in passing the [provisions] `indicated either expressly or impliedly a preference for one label or the other,' i.e., civil or criminal." (quoting Smith, 538 U.S. at 93, 123 S.Ct. 1140)). There is also no legislative statement of reasons or committee report indicating whether the Legislature as a whole enacted § 49-29-202(b) and (c) with a civil or punitive intent. The positioning of the challenged provisions within the "Criminal Procedure" Title of the Tennessee Code, however, does tend to indicate that the provisions are punitive. Cf. Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) ("[The State's] objective; to create a civil proceeding is evidenced by its placement of the Act within the [State's] probate code, instead of the criminal code."); Simmons v. Galvin, 575 F.3d 24, 43-44 (1st Cir. 2009) ("In examining Article 120[, a disenfranchisement provision,] on its face, there is no language indicating the . . . provision is penal. Article 120 is not in the . . . criminal code, but rather [in the] civil constitutional and statutory voter qualification provisions." (internal quotation marks omitted)). Although placement is not always dispositive, the provisions' appearance within the "Criminal Procedure" Title is particularly revealing in the instant case given the fact that the general provision governing the "[r]estoration of suffrage to persons convicted of infamous crimes" "i.e., the provision authorizing a felon-voter restoration scheme — is located in the Tennessee Code Title "Elections." Tenn. Code Ann. § 2-2-139. If the Legislature had merely regulatory intentions in enacting § 40-29-202(b) and (c), it could have included provisions with the other re-enfranchisement; provisions in the "Elections" Title as well.

Perhaps the greatest indicator of the punitive intent of § 40-29-202(b) and (c), however, is the Tennessee Supreme Court's statements regarding the State's statutory provision that first disenfranchised felons, § 2-19-143. In striking down the retroactive application of that provision, the Tennessee Supreme Court concluded explicitly that "[l]aws disenfranchising convicted felons are penal." May v. Carlton, 245 S.W.3d 340, 349 (Tenn. 2008). Because the statutory provisions governing conditions of re-enfranchisement in the instant case are simply provisions governing the period of disenfranchisement, I believe that the Tennessee Supreme Court, in light of May, would view any law that works to restrict further a felon's right to vote by, for example, conditioning that right on the payment of money, as equally punitive. Cf. Gaskin v. Collins, 661 S.W.2d 865, 868 (Tenn. 1983) (rejecting as unconstitutional the "injustice of retro-active disenfranchisement").

The majority appears to believe that the Tennessee courts would find the statutory provisions civil or regulatory because May's statement that disenfranchisement laws are "penal" cannot be separated from the particular question at issue in that case — whether the retroactive expansion of the crimes that qualify as "infamous" and thus permit disenfranchisement violated the ex post facto prohibition. But in concluding that § 40-29-202(b) and (c) fall outside of May's scope, the majority again fails consider the statute's operation and takes an unduly restrictive view of May. In practice, § 40-29-202(b) and (c) achieve the exact same end as the Legislature's retroactive classification of additional crimes as "infamous" in May, albeit via different means. As compared to the pre-2006 version of the law, the challenged provisions make it more difficult to have the right of suffrage restored. In concluding otherwise, the majority fails to acknowledge that § 40-29-202(b) and (c) prolong the period of clearly penal disenfranchisement. See infra Part I.C.2.

Under the present statutory scheme, as compared to the law that was in effect when the Plaintiffs were convicted, sentenced, and disenfranchised, the State denies the Plaintiffs the right to vote solely because of their inability to pay outright their outstanding restitution or child support. Because the Plaintiffs would have been otherwise entitled to vote automatically prior to the 2006 amendments, the statute in the instant case in its operation essentially expands the list of acts for which the State is authorized to disenfranchise. What is perhaps even more troubling about these provisions when compared to those that the court faced in May, however, is that the State is achieving covertly that which it could not accomplish outright even on a prospective basis. Tennessee is not authorized to deny the right to vote for mere failure to pay an obligation, as that act is not an "infamous" crime, and the State is certainly not authorized to do so in instances where the individual has yet to be convicted of any act related to the alleged nonpayment. Yet, this is the practical effect of § 40-29-202(b) and (c).

In sum, I disagree with the majority's conclusion that S 40-29-202(b) and (c) are not punitive in intent. The Legislature's placement of the provisions within the "Criminal Procedure" Title of the Tennessee Code, coupled with the fact that the provision? prolong penal disenfranchisement, lead me to conclude that the Tennessee legislature enacted these provisions with a punitive intent.

2. Section 40-29-202(b) and (c) Are Retrospective and Disadvantage the Plaintiffs' Rights.

Hecause I would conclude that § 40-29-202(b) and (c) are punitive for purposes of the state ex post facto analysis, I next turn to whether the law is "retrospective" and whether it works to "disadvantage the offender affected by it." State v. Pike, 978 S.W.2d 904, 925 (Tenn. 1998) (internal quotation marks omitted); id. at 926 (indicating that only laws that affect substantive rights may disadvantage the offender). Here, S 40-29-202(b) and (c) are retrospective in that they apply "to events occurring before its enactment." Pike, 978 S.W.,2d at 925 (internal quotation marks omitted). The Plaintiffs were tried, convicted, sentenced, and disenfranchised prior to 2006, which was the year that the Legislature enacted the challenged provisions. The law works to disadvantage the Plaintiffs1 substantive lights by imposing upon them a greater punishment — a lengthened period of disenfranchisement" than they would have received [t]rior to 2006 Mori-specifically, S 40-29-202(b) and (c) preclude the Plaintiffs from regainind unconslituing their fundamental right of suffrage upon mere completion of their sentence, as they would have been entitled to do under the pre-2006 framework. Instead, the provisions require the payment of monetary obligations that the Plaintiffs cannot make. As I have emphasized repeatedly, were it not for the provisions, the Plaintiffs would now be able to vote.

The majority disagrees with this conclusion. It posits that the Plaintiffs' punishment did not change after the 2006 amendments and that § 40~29-202(b) and (c) do not amount to punishment. Again, however, this conclusion fails to recognize that § 40-29-202(b) and (c), in fact, increase the length of the Plaintiffs' punishment. It also fails to recognize that retroactive changes to the length of a particular punishment implicate Tennessee's ex post facto prohibition regardless of whether the type of punishment remains constant. See State v. Pearson, 858 S.W.2d 879, 883 (Tenn. 1993) (indicating that the proper inquiry is "whether the law changes the punishment to the defendant's disadvantage, or inflicts a. greater punishment than the law allowed when the offense occurred"). No one contests that prior to the 2006 amendments, the Plaintiffs would have regained suffrage upon completion of their imprisonment, parole, and probation. Now they are disenfranchised (i.e., punished) for a longer period of time; i.e., until they are able (if ever) to pay their outstanding obligations. It is indisputable that this potential for an extended period of punishment was nonexistent when the Plaintiffs were first disenfranchised.

Considering the majority's belief that a change in the length of punishment is constitutionally irrelevant in the context of a different type of punishment, such as imprisonment, the logical flaw becomes apparent. For example, under the Ex Post Facto Clause of the U.S. Constitution, which provides less protection than the state constitution, Tennessee courts have held that the State is prohibited from enacting a law that provides a prisoner with prison-release credits for good behavior (which, like re-enfranchisement, the State is not required to do) and then via subsequent legislation enacting a law that retro-actively reduces the number of credits the prisoner could earn (in other words, impose upon the prisoner a provision that makes it harder to gain early release). See Allen v. Campbell, No. M2001-00277-COA-R3-CV, 2002 WL 373246, at *4 (Tenn.Ct.App. Mar.11, 2002) ("Sentence reduction credit statutes in effect at the time of the commission of a crime are . . . an inherent part of [a prisoner's] sentence; consequently, application to him of a system of sentence credits which reduces the amount of credit he is eligible to receive, if such application effectively imposes a greater punishment at a date after the offense, is subject to constitutional attack [under the Ex Post Facto Clause of the U.S. Constitution]."); see also Garrett v. Little, No. M2008-01867-COA-R3-CV, 2009 WL 2432974, at *7 (Tenn.Ct.App. Aug.7, 2009) (same). But under the majority's reasoning, the State would be able to do so. After all, the new law governing early-release credits would affect only the availability of early release; the punishment itself — imprisonment — would remain constant. Allen and Garrett make plain that this is not the law in Tennessee. Disenfranchisement is a mandatory part of a felon's sentence under § 40-20-112, and Tennessee case law indicates that we must treat § 40-29-202(b) and (c) as imposing a greater punishment by extending the length of disenfranchisement — a recognized punitive measure — and making more difficult the Plaintiffs' ability to regain their right to vote.

Finally, my conclusion that the provisions are unconstitutional is only bolstered by the Tennessee Supreme Court's emphasis that the state ex post facto clause is interpreted more broadly than its federal counterpart and that disenfranchisement laws are punitive in nature. In its analysis, the majority fails to acknowledge this fact or the fact that felon disenfranchisement and the ex post facto clause constitute an area of law where the Tennessee Supreme Court plainly has broken ranks with the federal Constitution on previous occasions, compare May, 245 S.W.3d at 349, with Trop v. Dulles,. 356 U.S. 86, 96-97, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958).

I believe that the Tennessee Supreme Court would deem subsections (b) and (c) of § 40-29-202 to be punitive in nature and that, when retroactively applied, they violate the Tennessee State Constitution's prohibition on ex post facto laws. I would hold likewise and believe that the district court erred in concluding to the contrary.

II.

For the reasons stated above, I believe the district court erred in dismissing the claims on the pleadings, and I therefore respectfully dissent.