Felon List Doomed at Last Minute, Sarasota Herald-Tribune, July 17, 2004, available at <http://www.heraldtribune.com/apps/pbcs.dll/article?AID=/20040717/NEWS/407170404>.

Publius, Something’s Rotten in the State of Florida, Legal Fiction (blog), available at <.http://lawandpolitics.blogspot.com/2004_09_01_lawandpolitics_archive.html#109625746958118590>.

Let's not forget that there's been plenty of reason to be concerned about partisan bias by REPUBLICANS in the purge rolls, including in Florida.  In both 2000 and 2004, lots of people were wrongly placed on the purge list, with disproportionate impact on minorities and Democrats. (U.S. Civ Rights Comm'n details the 2000 problems, and press reports the 2004 problems.)  In 2004, Florida newspapers reported, Republican officials were warned about flaws in the purge design which would purge blacks but not Hispanics, and proceeded anyway.   After a newspaper forced the state to divulge the purge list through a FOIA request, the black/Hispanic disparity, which favors the GOP in Florida, was exposed. 

Rick Hasen wrote:

Michael's point about the lack of a publicly-available list of ex-felons raises another, non-obvious argument against disenfranchising ex-felons: election administrators charged with purging ex-felons from voter rolls without an accurate list of ex-felons might do so in a way that has a partisan bias.  Guy Stuart, Databases,  Felons, and Voting: Bias and Partisanship of the Florida Felons List in the 2000 Election, 119 PSQ 453 (2004) , finds potential partisan bias in the purging of felons.  During the Florida 2000 felon purge "67 percent of people on the felons list were kept on the voter rolls in counties with Democratic supervisors, while 41 percent of people on the felons list in Republican counties were kept on the voter rolls."  Stuart notes two possible explanations: 1 "a cynical attempt" by Democratic county supervisors to protect their political base in a close election or 2. a principled decision made because most supervisors thought the list was riddled with errors, and would disenfranchise legitimate voters.  Until states can in fact produce accurate lists of ex-felons, there is at least the potential for bias in the way that election administrators use felon lists.

By the way, this same issue of PSQ has an article by Peter Argersinger, "Electoral Reform and Partisan Jugglery," that looks at parallels in election administration controversies between 2000 and the late 1800s.

Rick

Michael McDonald wrote:

In my opinion, Alexander Keyssar's The Right to Vote has the best historical
review of voting as a right (suffrage) or a privilege (franchise) in the
United States.  I assign chapter one to my voting classes because he has a
wonderful review of the debates at the founding that shaped the purposeful
exclusion of a national voting rights standard in the U.S. constitution,
leaving it to the states to devise their own standards in Section 2, article
1 of the constitution.  We're still living with the consequences of that
decision.  My favorite quote in Keyssar's book is from a familiar name,
Elbridge Gerry, who in arguing against voting as a right stated,
"Democracy...is the worst of all political evils."

Btw, I pre-date the Uggen and Manza article by two years with my examination
of felony disfranchisement as it relates to the turnout rate among eligible
voters in Michael P. McDonald and Samuel Popkin. 2001. "The Myth of the
Vanishing Voter." American Political Science Review 95(4): 963-974.   I
continue to track the absolute number of disfranchised felons by state at:

http://elections.gmu.edu/voter_turnout.htm

I decline to estimate the number of permanently disfranchised felons because
there really are no good methods to do so.  If there were publicly available
lists of ex-felons, it would be possible to estimate the number of
permanently disfranchised felons, and furthermore, it may be possible to
construct turnout rates for them, but I am not aware of such public lists.

==================================
Dr. Michael P. McDonald            
Brookings Institution, Visiting Fellow
George Mason University, Assistant Professor
Dept of Public and International Affairs
4400 University Drive - 3F4
Fairfax, VA 22030-4444

Office: 703-993-4191
Fax: 703-993-1399

mmcdon@gmu.edu
http://elections.gmu.edu/

 -----Original Message-----
From: 	owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu]  On Behalf Of Lowenstein,
Daniel
Sent:	Wednesday, February 09, 2005 12:25 PM
To:	election-law@majordomo.lls.edu
Subject:	RE: NY Times and Felons

	The "consent of the governed," as that phrase is used in the
Declaration of Independence, does not entail the right to vote in elections.
The phrase refers to voluntary entering into the social contract.

	It has been persuasively argued that the "self-evident truths"
stated in the Declaration are a concise summary of John Locke's argument in
his Second Treatise of Government.  See, for example, Chapter One of Michael
Zuckert's "The Natural Rights Republic"  (1996).  For Locke, one gives
consent by accepting the political society's protection of one's "property"
(which in Locke's usage includes life, liberty and estate).  Thus, the felon
(like the rest of us) has already "consented" to the government under which
he lives.  That consent is binding until and unless the government commits
act justifying revolution.

	The committing of a felony is an aggression against the society and
against other individuals.  It puts the perpetrator into a state of war with
the society and others and therefore creates a forfeiture of all the rights
of the perpetrator.  See, for example, paragraphs 172-174 of the Second
Treatise.

	Of course, this does not resolve the question whether and when it is
a good idea to reenfranchise former felons.  I agree that the Declaration of
Independence is a "definitive statement of our national aspirations."  But
the Declaration is no basis either for a general right to vote or for any
rights of felons whatever.

            Best, 
            Daniel Lowenstein 
            UCLA Law School 
            405 Hilgard 
            Los Angeles, California 90095-1476 
            310-825-5148 



-----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.


  

-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org
  

-- 
Professor Rick Hasen
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-0019
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org