Subject: RE: NY Times and Felons
From: "Volokh, Eugene" <VOLOKH@law.ucla.edu>
Date: 2/9/2005, 4:24 PM
To: election-law@majordomo.lls.edu

	Well, I certainly distrust politicians' motives as to lots of
laws!  I might also distrust the motives of some politicians who want to
*repeal* restrictions on felons voting as well as of politicians who
want to enact or maintain such restrictions.

	This having been said, there are three possible arguments that
can be made here:

	1.  We should distrust politicians' motives in this instance,
and therefore we as voters should vote to support repeal of the laws.
But that doesn't quite work, since we as voters can make up our minds
about the merits of the laws, regardless of whether we trust their
backers.  (This is not so when we're deciding whether to trust felons to
vote; those judgments must focus on our view of the felons, not of any
particular law.)

	2.  We should distrust politicians' motives as to the franchise,
so the Constitution should set forth unalterable rules that allow all
sane adult citizens (or just all adult citizens? or all adults? or all
people?) to vote.  The trouble is that our Constitution certainly does
not set forth such a rule as to felon disenfranchisement; in fact,
section 2 of the 14th Amendment specifically contemplates such
disenfranchisement.  (Section 2 doesn't necessarily dispose of the claim
that some felon disenfranchisement laws may be unconstitutional because
of racist motivation, but it does dispose of the claim that felon
disenfranchisement is per se unconstitutional.)

	3.  We should distrust politicians' motives as to felon
disenfranchisement, because they're likely to be racist.  But I don't
see why today's politicians are more likely to be racist (or sexist) in
their decisions whether to repeal felon disenfranchisement laws than in
their decisions about economic regulations, land use regulations, school
choice programs, or whatever else.

	Eugene


-----Original Message-----
From: Spencer Overton [mailto:soverton@law.gwu.edu] 
Sent: Wednesday, February 09, 2005 3:49 PM
To: election-law@majordomo.lls.edu; Volokh, Eugene
Subject: RE: NY Times and Felons


Eugene Volokh stated: 

"But when the right is a right to actually exert power 
over who gets elected -- which voting is -- people may reasonably 
conclude that felons lose this right by their bad conduct, 
which shows that they likely can't be trusted with this power."

Spencer Overton's response:

With regard to distrust, the question is whether we can trust 
the motives of politicians who disenfranchise or defend 
disenfranchisement of citizens.   




Professor Spencer Overton
The George Washington University Law School
2000 H Street, NW
Washington, DC 20052
(202)994-9794
soverton@law.gwu.edu
http://www.law.gwu.edu/facweb/soverton/




---------- Original Message ----------------------------------
From: "Volokh, Eugene" <VOLOKH@law.ucla.edu>
Date:  Wed, 9 Feb 2005 14:27:05 -0800


	A few thoughts:  (1)  I'm not sure it's particularly 

odd that felons 

may not vote, but may be elected to office.  We as voters 

get to choose 

whom we elect to office; in most jurisdictions, felons won't get 
elected, and when they are elected, it will usually be because the 
voters got a chance to focus on the candidate's felony record, and 
concluded that he's trustworthy despite that.  With felon 

*voters*, we 

as fellow voters don't get the chance to screen them.  Instead, the 
screening is done through the automatic disqualification process, 
followed in most states by a means of restoring 

constitutional rights. 

So if we're hesitant to let felons have a role in governing us, it 
makes sense that we'd want an automatic disqualification for 
felon-voters, but could live with 
disqualification-by-the-voters-voting-against for felon-candidates.

	I also suspect that in many states, felons are indeed 

disqualified 
>from holding state office, though I can't speak to that; the oddity 

that Steve Mulroy describes may be a function of the 5-4 opinion in 
U.S. Term Limits more than of some deliberate consensus that felons 
should be free to run for office.

	(2)  I appreciate Steve Mulroy's consistency on the 

felon self-defense 

vs. felon voting question, and perhaps he's right that many felons 
needn't be stripped of gun rights.  But my point wasn't that 

all rights 

necessarily need to be treated exactly the same way -- 

perhaps felons 

should be stripped of self-defense rights but not voting rights, or 
vice versa.

	Rather, it was that sometimes people can indeed forfeit 

constitutional 

rights because of their bad conduct.  When the right is 

simply a right 

to try to persuade people, as with petitions, letters to 

congressmen, 

and so on, there's not much reason for stripping the person of that 
right.  But when the right is a right to actually exert 

power over who 

gets elected -- which voting is -- people may reasonably 

conclude that 

felons lose this right by their bad conduct, which shows that they 
likely can't be trusted with this power.

	Eugene


-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of 
Steven Mulroy
Sent: Wednesday, February 09, 2005 9:34 AM
Cc: election-law@majordomo.lls.edu
Subject: Re: NY Times and Felons



Some comments in reply to Eugene Volokh's (interesting,
useful) points 
about felon disenfranchisement:

 Isn't it the case that anyone who satisfies the requirements for
federal elected office set out in the Constitution can be 
elected, and 
that we can't exclude convicted felons who otherwise qualify? 
  It seems 
odd that a convicted felon would have a constitutional right to 
literally be one of our "governors" by being elected to 
federal office, 
but excluded from being a more indirect, metaphorical 

"governor" by 

voting in the same election in which he runs for office.  

I know that 

the same situation applies to many state offices:  there are 
historical 
examples of people running for office from jail, even serving 
from jail, 
are there not? 

 Also, following up on Eugene's analogy to the 2nd Amendment,
what about 
the 1st Amendment? Would we say that ex-felons are 

disqualified from 

writing their congressmen, petitioning their government for 
redress of 
grievances, making campaign contributions, serving as elected 
delegates 
to their party's convention, or otherwise participating in the 
"government" of the people? I don't think we COULD say it, 

could we?


I think the answer to all these questions is that all 

citizens have a

right to contribute to the government of the people 
regardless of their 
criminal past.  Taking away 1st Am, 2nd Am, voting rights, 

or other 

rights isn't justified absent some compelling interest, and no 
criminological or penological interest is served by doing 

it.  Except 

possibly for where the ex-felon committed a crime with a 

gun or was 

otherwise dangerous, I don't see an argument for taking away 
the 2nd Am 
right either.  Criminal laws are probably too broad right 

now on that 

score.  Similarly, except possibly for crimes involving 
election fraud, 
I don't see an argument for taking away voting rights. 

(Indeed, it might actually be salutary to have ex-felons' input re:
public policy questions on prison conditions, the criminal justice 
system, or even the wisdom of substantive criminal laws.  

I for one 

would like to hear from them re: the sentencing disparity 
between powder 
cocaine and crack.)







 

 
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