Notwithstanding the fundamentals principles of democracy that are compromised by the persistence of anachronistic felon disfranchisement laws, as Deborah points out, these laws have an undeniable discriminatory impact on Blacks and Latinos because of the bias that infects our criminal justice system. There are ample data to support these disparities that exist throughout the country, including some official reports from state agencies that establish that race is a determinant in policing decisions and other activities that ultimately shape the demographics of the felon population. Moreover, it is important to note that the discriminatory impact of these laws is borne not only by those currently or formerly incarcerated or on parole whose vote is directly denied, but by Blacks and Latinos as a whole because of the streams of votes that are lost from their communities, not to mention the exacerbation of this impact through counting these non-voters in primarily rural white !
election districts for purposes of redistricting. These laws have the cumulative effect of slowly and silently decimating the ability of Blacks and Latinos as a whole from participating in the electoral process on an equal basis as whites and, ultimately, de-legitimizing our democratic ideals. For additional information on the type of evidence that exists to challenge the disparate impact of felon disfranchisement laws, I invite you to review an amicus brief filed by the NAACP Legal Defense and Educational Fund, Inc. (LDF) last Friday in support of Plaintiff Muntaqim in Muntaqim v. Coombe which will be reheard en banc in the Second Circuit this Spring on the issue of whether the VRA can be used to challenge New York's felon disfranchisement law. (I can forward the brief under separate cover upon request. It is too large to be transmitted to the listserv). The brief was filed jointly with the Community Service Society of New York and the Center for Law and Social Justic!
e, LDF's co counsel in Hayden v. Pataki, a second felon disfra!
nchiseme
nt case currently on appeal in the Second Circuit. In addition to arguing that the VRA was enacted by Congress to challenge the type of voting qualifications at issue in Muntaqim- New York's felon disfranchisement law, LDF responded to the Court's questions about what type of evidence could support such a claim. Specifically, LDF argues that the disproportionate rates of conviction and incarceration between whites and minorities, the disparate numbers of Blacks and Latinos who are denied the right to vote, and other evidence of bias in the criminal justice system, support Plaintiff's Section 2 vote denial claim. In addition, the brief presents evidence of New York's long history of intentional discrimination against Blacks in voting, which culminated in the enactment of New York's felon disfranchisement law in 1821.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Janai S. Nelson
Director of Political Participation
NAACP Legal Defense
and Educational Fund, Inc.
99 Hudson Street
Suite 1600
New York, NY 10013
Phone: (212) 965-2200
Fax: (212) 226-7592
Email: jnelson@naacpldf.org
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"Deborah Goldberg" <deborah.goldberg@nyu.edu> 02/10/05 08:52AM >>>
It is extraordinarily insulting to compare the disproportionately African American adults who have been released from prison, and who are expected to support themselves and their families, to pay taxes, and otherwise to be productive members of society to children. I seem to recall that the comparison to children -- the incapacity responsibly to exercise the franchise -- was also a prime reason for the refusal to enfranchise blacks (and women) in the first place. It astonishes me to see the comparison in print today, but it explains a lot about the opposition to full suffrage.
If "bad conduct" were the test for the franchise, many fewer people who are at large would be voting today. Whether you are arrested, prosecuted, convicted, and imcarcerated is not unrelated to where you live, what you look like, who you know (and who knows you), and what kind of lawyer you can afford. Powerful whites who forge prescriptions get treatment for a medical condition; they are guilty of "bad conduct" for which the indigent addict is imprisoned, but they never lose the right to vote.
________________________
Deborah Goldberg
Director, Democracy Program
212-998-6748
deborah.goldberg@nyu.edu
Brennan Center for Justice
161 Avenue of the Americas
12th Floor
New York, NY 10013
tel: 212-998-6730
fax: 212-995-4550
www.brennancenter.org.
"Volokh, Eugene" <VOLOKH@law.ucla.edu> 02/09/05 06:20PM >>>
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.