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.)