My concern isn't that ex-felons might vote to change our laws.
There's nothing wrong with their voting to change our laws.
Rather, it's that they'll cast votes that are bad for society,
because they tend to be people with bad moral judgment. Would you elect
a convicted rapist or robber to the legislature? Probably not, I
suspect, at least unless he's behaved very well for many years since his
conviction. Why not? Not just because he, as a legislator, might vote
to change our laws. Rather, it's because he might cast votes that are
bad for society, because he's a person who has shown himself to have bad
moral judgment. (Of course, you may well make the decision about the
legislator on a case-by-case basis, as a voter; but while that's
possible for screening out legislators who have done bad things, it's
not possible for screening out voters.)
The age analogy is likewise helpful here, too. Why wouldn't we
want 13-year-olds to vote? Not because they'll vote to change our laws,
but again because they'll cast votes that are bad for society, because
they tend to be people with immature moral (and practical) judgment.
The cause of our lack of trust for their judgment is different from the
cause of our lack of trust in the judgment of ex-felons. But in both
instances, we don't want to give people with untrustworthy moral
judgment a role in governing us.
Now of course some people may reveal their bad moral judgment in
other ways, for instance by expressing support for racism or Communism
or what have you. But the Free Speech Clause -- and the quite sound
political theory underlying that clause -- rightly requires us not to
discriminate against these people because of their viewpoints, even
though letting them vote may well be bad for society. Fortunately,
nothing in the Constitution, or in my view in sound political theory
(some of which we've touched on in these threads), bars us from
discriminating against people because of their past felony convictions.
Eugene
Alec Ewald writes:
We have been hearing the "trust" argument repeatedly here.
The trust argument is hollow: what exactly is it that we are
concerned the untrustworthy would *do* with their ballots?
Fraud was one argument, but voting is now vastly more secure
than it was in the nineteenth century, and there has never
been any showing that people convicted of crime are more
likely or able to commit fraud than others. (The
incapacitative rationale here justifies disfranchising those
convicted of election crimes.) I have come to believe that
the "untrustworthy" argument is simply a vague form of the
"subversive voting" claim, which holds that people convicted
of crime are rightly barred from voting because they might
vote to change our laws. That, too, used to be a perfectly
acceptable part of American suffrage thinking, but it sure
isn't any more. Arguments which link the notion of "trust"
with statements about voters' "power" over each other seem to
emphasize the subversion fear, too, but maybe that is not how
it is meant.
Anybody can say that their preferred policy will strengthen
our democracy or prevent crime, but Americans today are
pretty practical when it comes to justifying restrictions.
If I could be shown *how* barring convicts from the polls
would either strengthen our democracy or prevent crime, I
might well support it. Instead, the more convincing evidence
suggests that at least in a few cases, engagement with
politics might help reduce recidivism -- and preventing just
one is enough.
Finally, the "third way" policy is right there for the
taking: compulsory inmate voting, as a proud statement of
faith in the transformative power of suffrage and the robust
character of our elections, and a genuine interest in using
the power of the state to help build the character of those
under criminal supervision.
Alec
Alec Ewald, Ph.D.
Visiting Assistant Professor
Department of Political Science
Union College
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu]On Behalf Of
Volokh, Eugene
Sent: Wednesday, February 09, 2005 2:27 PM
To: election-law@majordomo.lls.edu
Subject: RE: NY Times and Felons
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.)