It seems to me that this is an empirical argument;
correct me if I'm wrong. There is another strain of
thought that says something like "people who break
society's laws aren't fit to make the laws" or
"committing a felony establishes one's moral unfitness
to vote."
But what I read here is the proposition--unremarkable
in contexts not involving fundamental rights--that we
can generalize about the characteristics that, as an
empirical matter, are possessed by most members of a
particular population; and that, having so generalized,
we can decide whether those characteristics are
desirable in a particular context. For whatever
reason, we think that most 18-year-olds have what it
takes to serve in the military; and for some other
reason, we don't think they have what it takes to use
alcohol.
The argument then must be that people who have been
convicted of felonies, as a group, generally lack some
characteristic that is essential in a "trustworthy"
voter, or have some characteristic that makes one
"untrustworthy" for the purpose of voting.
What's not clear to me is what makes someone worthy of
being trusted to vote; a fortiori, I can't tell whether
it's reasonable to believe that most people in any
particular group are trustworthy or not.
I should think that to take away a right that is
important not only to the individual but to the
legitimacy of our government, proponents must make a
pretty convincing showing that--as an empirical
matter--this group of people is overwhelmingly, or at
least mostly, composed of individuals who don't have
what it takes to be trusted with a vote.
So what does it take? And how do we know people with
felony convictions, as a group, don't have it? With
children, I imagine most people would say it's a group
of things like (depending on the child's age)
understanding cause and effect, capacity to comprehend
what the government is and how it works, broad enough
experience of the various major life activities (to use
the ADA term) that the government regulates, ability to
evaluate propaganda critically, experience of human
nature in many contexts, and so on. (There are
probably also two argument that, whatever their merits,
have a less-than-stellar pedigree in the area of
enfranchisement, viz., that parents can be counted on
to vote their children's interests, so that the
children are "virtually represented" by their parents,
and that children would simply vote as their parents
instruct them, giving parents extra votes).
But I don't know what it is about having a felony
conviction that makes one untrustworthy *to vote*. You
might not choose to hire a convicted burglar as a
housecleaner, let's say, or to give an armed robber
access to firearms, but what makes either of these
people untrustworthy to vote? And how do we test that
generalization empirically?
I think the earlier post may be right: what the
untrustworthiness argument comes down to is that one
might fear that ex-felons will vote "the wrong way."
But what is "the wrong way?" And is there any evidence
in the states that don't disenfranchise people
permanently, or that even let current prisoners vote,
that the process is being harmed? It's not enough to
say, as Professor Volokh has, that ex-felons' votes
might tip the balance toward a particular candidate in
a close race; that's true of anyone's vote, and it
doesn't tell us anything about whether the person
*should* be allowed to make a difference. Let's posit,
as some have, that Gore would have won in 2000 had
Florida not had a permanent disenfranchisement
provision in its constitution. If you're a Bush
partisan, you of course wouldn't be pleased with that
outcome, but in what sense would it be a less
trustworthy election than one in which ex-felons didn't
vote?
So how do untrustworthy voters behave? In Vermont,
have they repealed the prohibition on murder? Have
they settled lifetime pensions on parolees? I
exaggerate, obviously, but I'm serious: what evidence
would validate a claim that it's reasonable not to
trust ex-felons with a vote, and does such evidence
exist?
On Thu, 10 Feb 2005 14:19:22 -0800, "Volokh, Eugene"
wrote:
Message
ÊÊÊ I'm not sure
I'd call it "incapacity."Ê They aren't *unable* to make
trustworthy
judgments; it's just that we have reasons to doubt
their trustworthiness.Ê
I wouldn't make this an irrebuttable presumption -- I'd
let it be rebutted by a
record of some number of years without a criminal
conviction.Ê But it's a
sensible presumption, I think.
Ê
ÊÊÊ Nor do I see
any contradiction between our not trusting felons to
help govern us, and our
letting them raise families, work, pay taxes, serve in
the military, drive, and
the like.Ê For each of these behaviors, the
considerations -- the
importance of the behavior to the individual, the
importance to society of
letting the individual engage in the behavior
(discounted by the importance to
society of barring the individual from engaging in the
behavior), and more --
are different.Ê Obviously the price to society (and the
individual) of
categorically barring felons from working would be very
high; likewise as to
driving.Ê On the other hand, for voting the result
might be different;
similarly for owning firearms.
Ê
ÊÊÊ Age
restrictions are again an interesting analogy.Ê We
don't let people under
21 buy alcohol, and some laws bar them from owning
certain kinds of guns.Ê
Yet we let them work, drive, and the like.Ê The latter
doesn't "belie" the
presumption that under-21-year-olds are less mature; it
simply reflects the fact
that the factors involved in each disqualification
question are
different.
Ê
ÊÊÊ Likewise,
though I think the limits on ex-felons' owning guns and
voting are analogous in
some interesting ways, surely it wouldn't be odd for
someone to say that he
thinks felons should be free to vote but not to own
guns.Ê One may trust
felons with the vote but not with a gun.Ê Likewise, one
might think it's
more important to let felons work, at least in certain
jobsÊ(even though we
don't find them trustworthy in certain ways),Êthan to
let them vote.Ê
There's no reason why the rules have to be identical
for different kinds of
behavior.
Ê
ÊÊÊ Eugene
Ê
-----Original Message-----From: Marty Lederman
[mailto:marty.lederman@comcast.net] Sent: Thursday,
February 10, 2005
11:55 AMTo: Volokh, Eugene;
election-law@majordomo.lls.eduSubject: Re: NY Times and
Felons
Thanks, Eugene, that's a very helpful clarification.Ê
I take it the
argument is that felons generally (categorically?Ê
more often than not?)
suffer from some sort of incapacity to make
trustworthy judgments --
akin to, but distinct from, the immaturity of minors
or mental illness.Ê
But if that's the argument, it rests on pretty shaky
empirical ground, doesn't
it?Ê That the commission of a felony (any felony)
establishes a
(nonrebuttable) presumption that the person lacks the
capacity to make
trustwrothy judgments about whom to vote for?Ê That
seems fairly
counterintuitive to me.Ê Moreover, as Deborah was
suggesting, such a
presumption is belied by the judgments the society
otherwise makes about the
capacity of felons to participate in civic life and
to take on its
responsibilities:Ê Unlike children and the severely
mentally
disabled, former felons:Ê raise families; work; must
pay their taxes;
must serve in the armed forces if drafted; drive
cars; operate heavy
machinery; serve on juries (?? is this right??);
drink alcohol; etc.,
etc.Ê