As several posts have noted, Keyssar is the best source on history. (His tables alone are well worth the cost of admission.) Keyssar's general conclusion is that nineteenth-century laws reflected the general consensus that a voter "ought to be a moral person;" Kirk Harold Porter's suffrage history had reached broadly the same conclusion, observing the popularity of infractions like duelling in early disenfranchisement law. Ward Elliott argued in his Rise of Guardian Democracy that criminal disenfranchisement may have been implemented in response to the elimination of the property test, since "abolishing property tests revealed that they had served a number of indispensable functions, such as holding down the voting strength of free blacks, women, infants, criminals, mental incompetents, unpropertied immigrants, and transients." On racial history, Shapiro's 1993 Yale L.J. article probably remains the best single source. I discuss these and other ideas in my 2002 Wisconsi!
n Law Review article on this topic.
But generally, Shapiro's statement that "studies of state legislatures' reform and/or repeal of criminal disenfranchisement laws do not exist" is still the bottom line, probably because so few state legislatures kept any kind of good records before the end of the nineteenth century. In his chapter in Rakove's Unfinished Election book, Keyssar practically begs somebody to write about this -- including coverage of the many states which did *not* put such laws in place.
It's interesting and important to consider what Locke, Jefferson, Montesquieu, et al. might have thought, and several of us who've written on this have done so. But remember, if you told Locke that a propertyless, nontaxpaying, illiterate person has a right to vote, he would consider that statement true and utter gibberish. (You can put a sharper point on it by making that person a black woman, if you like.) We have left behind virtually all of their premises and assumptions, "contractual" or otherwise, about the polity and its composition.
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.)