A Stitch in Haste

I'm sorry, but I refuse to get excited about the fact that felons can't vote:

On Election Day it will not matter to some 4.7 million Americans whether they are Republicans, Democrats, independents or whether they have an opinion on anything at all. Under various state laws, they are barred from voting because they have felony records. This includes not just prison inmates (48 states), parolees (33 states) and probationers (29 states) but also a large number of people -- one third of the disenfranchised in all -- who are off parole and "free." Minorities are hit particularly hard by these state laws: They deny 13 percent of African American men the vote.
...
The 14th Amendment permits states to deny the vote "for participation in rebellion, or other crime." And it can be argued that prisoners should not vote; after all, the purpose of prison is to deny freedom. But with ex-cons, the argument shifts.
...
Another bald fact: Many disenfranchisement laws trace to the mid-1800s, when they were crafted to bar blacks with even minor criminal records from polls. Today this poisonous legal lineage tells not only in the South, which retains the most repressive statutes, but in states such as New York, where ex-parolees theoretically get their rights back but in reality encounter local election officials who demand discharge papers that don't exist, give misleading information and find other reasons to turn them away. A class-action lawsuit in New York charges that this system bars so many voters in high-crime neighborhoods that the districts effectively have lost their voice. In Florida, where many felons are barred forever unless the governor personally decides otherwise, 8 percent of adults cannot vote -- including one in four black men.
...
Voting is not a privilege; it is the basic right that defines a citizen. Those denied it are, in effect, stateless -- people without a country. This is not a partisan issue, but one of basic human rights. People who have paid their debt to society should have their rights restored.

Um, no.

It needs to be said: the best way to empower felons is by not being one of them. Of all the people one can have sympathy -- misplaced or otherwise -- toward, people are choosing felons?

With all due respect to Victor Hugo, the notion that there should always be a final, definitive cut-off point for punishment, that there should always be some clearly-drawn line beyond which lies total forgiveness and forgetfulness, simply has no basis either in the law or in common sense. Some punishments are and should be forever, and there is nothing intrinsic to the franchise to suggest that denying felons the vote cannot be one of those lifetime punishments.

I'm an attorney -- if I commit a great enough offense to my profession, then I can be disbarred for life. Same thing for my other day job as an investment banker -- a lifetime ban from the securities industry is an all too common event on Wall Street (for example, this guy). People lose drivers licenses and other permits for life in certain circumstances. Countries can refuse people entry for life. We even imprison people for life if the crime is terrible enough. So what's the big deal about denying felons the right to vote?

Voting "defines a citizen"? I thought obeying the law and respecting the rights of others defined citizenship. To deny felons the vote is to deny them their rights? Didn't the felons themselves violate somebody's rights somewhere along the way, and might not the victims be suffering for life? Can't there be some "debts to society" that can never be totally repaid?

Certainly there may be specific instances of inconsistency or inappropriateness or flat-out abuse in the application of franchise denial to felons. But as a basic legal, political and philosophical question, there is simply no rational basis to oppose denying felons the franchise.

It's definitely fair...and it's probably wise.

Whether your true motivation is partisan politics, racial activism or a genuine concern for felons qua felons, your energies are better directed elsewhere. There are people more deserving of your efforts and more in need of "empowerment."

More thoughts on the matter at NRO.

UPDATE: The issue lives on -- see .here

(Cross-linked at Outside the Beltway).

I'm not necessarily part of the "al Reuters" crowd who like to gang up on the news service.

But this headline is outrageous:

Millions Blocked from Voting in Election

Millions?!? Sounds like a real crisis. What could be happening? Might they mean be "blocked" as in roadblocks? Or perhaps some vast scandal has been uncovered regarding corrupt poll workers or state troopers or the seemingly omnipresent "partisan political operatives"?

Reading on...

The largest category of those legally disenfranchised consists of almost 5 million former felons who have served prison sentences and been released.

Oh.

As for felons voting, I cracked that nut long ago in this post. It's perfectly reasonable to deny felons the vote, for life. Move along, nothing to see here. I have nothing more to add on that subject.

My concern in this post is only with the inflammatory headline.

Wouldn't a more accurate headline be: "Millions Forfeit Vote By Committing Felonies"? Or "Yet Another Reason Not to Commit Felonies"?

The article does proceed to rehash, with little in the way of hard data, issues such as poll worker misconduct and alleged partisan "dirty tricks." And such issues, to the extent they really exist, are important and deserve scrutiny. But why forfeit your credibility by trying to ride the statistical coattails of a red herring non-issue?

Good writing...honest writing...important writing. Or a catchy headline.

That shouldn't be a hard choice.

UPDATE: The Sundries Shack sees a pattern.

The New York Times has a brief editorial calling for the elimination of laws permanently rescinding the right of convicted felons to vote:

Some five million Americans are barred from the polls by a bewildering patchwork of state laws that strip convicted felons of the right to vote, often temporarily, but sometimes for life. These laws serve no correctional purpose — and may actually contribute to recidivism by keeping ex-offenders and their families disengaged from the civic mainstream. This notion is clearly supported by data showing that former offenders who vote are less likely to return to jail. This lesson has long since been absorbed by democracies abroad, some valuing the franchise so much that they take ballot boxes right to the prisons.

I was unpersuaded before, and I remain so. Some hasty stitches:

--What's so "bewildering" about a federalist approach to this issue? A convicted felon need not be conversant in the felon-franchise laws of all fifty states, just the one he was convicted in.

--Last time I checked, punishment was most certainly a "correctional purpose." News flash: the criminal law can still sometimes be about plain old punishment, as well as rehabilitation and protection of society.

--I dare the Times or anyone else to produce a single reformed felon who actually attributes his rehabilitation, even marginally, to having his vote restored to him ("Yeah there sure was a lot of money to be had at that liquor store, but I just couldn't risk not being able to vote again!"). The "data" the Times mentions are meaningless; correlation does not prove causation (and notice the sleight-of-hand: "offenders" versus "felons").

--There is nothing per se cruel or unusual (or illogical) about lifetime punishment, in any context. As I blogged previously, the (supposedly ethically-challenged) financial sector imposes lifetime bans all the time (e.g., this guy).

--Let's not pretend that there aren't Red-Blue implications to this issue. I'll admit that they shouldn't drive policy if the Times will too.

Whether felons should be permitted to vote is one of those rare issues where naked, unbridled federalism makes sense — leave it to the states to decide the proper punishment/rehabilitation mix in their respective criminal justice systems.

And I as blogged before: The best way to empower felons is by not being one of them.

SCOTUSblog has a very good update on the status of some "felon vote" cases working their way through lower federal courts. I've blogged about the topic previously.

As background, Section 2 of the Fourteenth Amendment states:

But when the right to vote at any election ... is denied to any of the male inhabitants of such State, ... except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens ... in such State.

In other words, the Constitution expressly allows states to deny the right to vote, but if they do so, then they lose those voters for purposes of calculating House seats and Electoral College votes after each Census, unless the denial is for commission of a crime, or is otherwise addressed elsewhere in the Constitution.

Normally that would be the end of the discussion, but every so often voting rights activists find an "elsewhere in the Constitution" --

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

So, if you can find a link between felon status and race, you can then try to argue that felon disenfranchisement is actually race-based and therefore a violation of the Fifteenth Amendment and disregard the Fourteenth Amendment altogether.

This is, of course, utter nonsense.

Not all felons are black, and not all blacks are felons. The statistical observation that felon disenfranchisement affects blacks at twice the rate as whites says more about the nature of what we make felonies than about any grand conspiracy to deny blacks, as a group, the right to vote. If a certain crime (e.g., drug dealing) is more likely to create black felons than white felons, then let's revisit our drug laws and not our (clearly constitutional) felon disenfranchisement laws.

Meanwhile, it is intellectually dishonest to lament one statistical observation (i.e., that blacks are more likely to be disenfranchised for a felony conviction) while ignoring another (i.e., that blacks are more likely to vote Democratic). Statistical truisms are a double-edged sword.

The assertion that "once you do your time, all should be forgiven and forgotten" has no basis in the law, history or common sense. Stated differently, the best way to empower convicted felons is by not being one in the first place. To the extent that there are race-based injustices in the law, the causes should be ferreted out and eliminated, not the tenuous and tangential side effects.

(There are also issues in these cases regarding Section 2 of the Voting Rights Act, but I leave those for people more knowledgeable about the VRA.)

Other thoughts at Appellate Law & Practice, Election Law.

---

On a side note, I can't stop smiling over this wonderful passage from (then Associate Justice) William Rehnquist in Richardson v. Ramirez, 418 U.S. 24 (1974), which upheld felon disenfranchisement in the absence of any racial issues:

[California] goes on to argue that those who framed and adopted the Fourteenth Amendment could not have intended to prohibit outright in [Section] 1 of that Amendment that which was expressly exempted from the lesser sanction of reduced representation imposed by [Section] 2 of the Amendment. This argument seems to us a persuasive one unless it can be shown that the language of [Section] 2, "except for participation in rebellion, or other crime," was intended to have a different meaning than would appear from its face.

The problem of interpreting the "intention" of a constitutional provision is, as countless cases of this Court recognize, a difficult one. Not only are there deliberations of congressional committees and floor debates in the House and Senate, but an amendment must thereafter be ratified by the necessary number of States. ... Nonetheless, what legislative history there is indicates that this language was intended by Congress to mean what it says.

I love it — textualism at its finest. I only wish Justice Rehnquist and other members of the Court were similarly respectful of the plain text of, say, the Privileges & Immunities Clause, or the Ninth Amendment, or the Twenty-First Amendment, or the "public use" clause of the Fifth Amendment.

Oh well...

---

Also, an immodest reminder that my previous post, "Red Felon, Blue Felon," will appear in the forthcoming Thomson Gale compendium volume, "At Issue: Are American Elections Fair?" in 2006.