Well, yes, felons are among the governed -- as they are among
those who need self-defense.  In fact, if felons end up poorer because
of their stint in prison, and thus have to live in rougher parts of
town, they may need self-defense even more than others do.  But our
presumption that the governed should be able to vote, and that people
should be able to defend themselves, is rebuttable by the person's bad
conduct.

	Incidentally, the situation of children is similar.  Children
are also governed; in fact, they're in some ways subject to more legal
controls than adults -- controls on their sex lives, driving, drinking,
smoking, working, and more.  The law even lets them be held as virtual
prisoners by a third party (their parents), though we hope that the
third party has their best interests at heart.  And children, especially
older children, may need tools for self-defense as much as many adults.

	Yet we don't expect the government to give them the opportunity
to consent -- or dissent -- by voting about how they're governed.
Likewise, we generally don't let them arm themselves for self-defense
(though I suspect this varies from state to state).  Why?  Because we
don't trust them to participate in government, or to use guns
responsibly.  The same is true as to felons, though the reason for our
distrust of felons is the felons' bad conduct, rather than a factor
(age) over which the felons have had no control.

	Eugene

-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu 
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of 
jonathan.gass@1webmail.net
Sent: Wednesday, February 09, 2005 6:51 AM
To: election-law@majordomo.lls.edu
Subject: RE: NY Times and Felons

These are plausible arguments -- but so, it seems to
me, is the position that a voter is one of our
governors, and that we don't want to be governed by
those who have shown themselves to be bad actors.

Is not the answer to this that felons are not only
among the governors, but among the governed (indeed,
who is more governed than a prisoner)?  I realize that
the Declaration of Independence is not a source of
*legal* rights, but as it is one of the most definitive 
statements of our national aspirations, I think we should as 
a matter of *policy* give consideration to its dictum that it 
is "self-evident" that governments "deriv[e] their just 
powers from the consent of the governed."

This, of course, would distinguish the Second Amendment 
analogy, as well as analogies to most other rights that might 
be forfeited by a conviction (some of the First Amendment 
clauses being arguable exceptions).

Of course, states may choose to restore the person's
rights if they believe that the person has been
rehabilitated, and if they generally have confidence
in rehabilitation; I believe that many though not
all states in fact do restore felons' voting rights
and firearms rights on this theory.  But once the
person has forfeited this right -- even though it
was a constitutionally secured right -- by his bad
conduct, restoration is a matter of grace, born out
of our growing willingness to trust the person, and
not of constitutional entitlement.

If one accepts the "consent of the governed" rationale,
the problem with this analysis is that it leaves it up
to the government whether or not to "believe that the
person has been rehabilitated" and, in practice,
whether "we" are willing to trust the person and
whether "we" will show grace to him or her by restoring
the right to vote.  Voting is the one right that we
should be least willing to allow the government to
declare forfeit, as it is the one right that enables
the people to correct the government's overreaching
with respect to other rights.  This reasoning also
applies to the governmental acts that result in the
conviction in the first place.

I have a second problem with this formulation.  People
with felony convictions *are* one of "us."  There are
of course arguments on both sides, but I think it is 
fundamentally wrong in a democracy to regard any citizen as 
standing outside the "we" who constitute the ultimate source 
of governmental authority and legitimacy.  I also think it 
dehumanizes people in a way that is particularly unhealthy 
with respect to those who are no longer in prison; they live 
among us, but they are not "one of us."  The punishment of 
outlawry was abandoned long ago, and even the Brits no longer 
ship their convicts to the Antipodes.

Finally, if one accepts concepts (or bows to realities)
like communities of interest and racial bloc voting,
the fact that individuals from certain communities are 
disproportionately convicted is a serious democratic problem. 
 As Frank Askin pointed out, felon disenfranchisement in 
operation dilutes black voting (which, from my admittedly 
fragmentary knowledge of the reasons why felon 
disenfranchisement laws were adopted in the first place, is 
hardly coincidental).

This is so even if, e.g., black really do commit crimes
more often and even if legislating, policing, charging, 
plea-bargaining, guilt-establishing, sentencing, and paroling 
decisions are absolutely unaffected by the suspect's race, 
sex, or anything else you care to include (in the case of 
legislation, the idea would be that legislatures are 
unaffected by, e.g., a belief that crack ismore widely used 
by blacks and powder cocaine more widely used by whites in 
deciding whether to criminalize certain conduct, whether to 
make certain crimes felonies or misdemeanors, whether to 
constrain prosecutorial discretion, and what sentences to 
require for each crime).  The fact, if it is a fact, that the 
criminal justice system does not operate in a race-neutral 
manner only exacerbates the problem. 
Given our nation's unfortunate history of racial issues
in law enforcement, I'd think a sort of precautionary
principle would say to err on the side of letting
people with convictions vote.  Not to mention that
unless one thinks that black people are by nature or
culture more crime-prone, these communities' vote
dilution would be caused by factors that are at least
partly exogenous, such as poverty, white flight and
subsequent defunding of urban schools, etc.

On the whole, I'd say if you're a citizen, you can vote.