This might be getting a bit repetitive, and I apologize for
that; but here's my very brief view.
1) I agree that felony conviction isn't a perfect proxy for
trustworthiness as a participant in government -- but neither is age. I
do think, though, that such a conviction (especially if recent) is a
decent proxy, just as the age 18 line is. I would gladly entertain
proposals to exclude some felonies or include some misdemeanors, though
naturally I expect that such proposals would attract even more hostility
(and claims of prejudice), so maybe a simple bright-line is better. I
would not accept civil liability, because (as Mark Scarberry pointed
out) the burden of proof is considerably less there, and because the
line-drawing within civil liability would be much more complex.
2) On to the more basic question: "What does the prior
criminal act have to do with the sort of judgment that we expect from a
voter?" I think the answer does have to do with quality of the person's
moral judgment, and that we may disagree on proper moral judgment
doesn't really undermine that much.
Let me bring up again the analogy of candidates for government
office. Someone wants to become a legislator or an executive official,
which will let him participate in exercising power over us. It turns
out that three years before he had been convicted of rape, robbery, or
even burglary. I suspect that most voters would consider this nearly a
per se disqualifier (even if it isn't a legal disqualification); and I
think they'd be right to do so. Why? Because they wouldn't, and
shouldn't, trust this convicted felon's moral judgment (unless the
felony had been many years in the past, and the person had lived a
blameless life since then). And if he says "Well, you're just electing
me as one of the eighty state representatives," the answer will be that
he will still be able to have a substantial influence in exerting
political power over the rest of us -- just as even a few-percent group
of ex-felon voters will have such influence if they are allowed to vote.
Now, as I mentioned before, for candidates to office we may well
want the voters to decide on a case-by-case basis whether they want to
elect an ex-felon (as some voters have indeed done), rather than having
a categorical legal disqualification of ex-felons. But that's because
it's practically possible for voters to decide this case by case about
legislators. It's not practically possible (or desirable) for us to
decide this case by case about other voters, so a blanket rule,
rebuttable by the passage of time (or possibly by case-by-case decisions
about petitions to restore civil rights, though I prefer a crisp time
cutoff instead), better serves the goal of making sure that our
co-governors are indeed to be trusted to exercise political power.
Eugene
-----Original Message-----
From: Bauer, Bob [mailto:RBauer@perkinscoie.com]
Sent: Friday, February 11, 2005 8:11 AM
To: 'Chambers, Henry'; Volokh, Eugene; election-law@majordomo.lls.edu
Subject: RE: criminal disenfranchisement
I am confused by the line of argument that Eugene is
advancing, and I say this as someone with less than fully
developed views on the issue of felon disenfranchisement. I
agree with the post raising doubt about the meaning of "bad
for society", and wonder also what is meant by "moral
judgment". Some people with moral judgment perfectly suited
for voting decisions commit crimes, I would think. For
example, an individual convicted of killing a spouse or
partner's lover in a fit of rage might be impassioned about
fiscal discipline, or well-versed in the issues presented by
American relationships to the rest of the world. What does
the prior criminal act have to do with the sort of judgment
that we expect from a voter? Now someone might reply that
that judgment must be, at bottom, "moral" judgment, but then
the question is what sort of "moral" judgment, always a
highly contestable question, do we have in mind? How about
the citizen who is not a felon, but who is engaged in
perpectual lawsuits over breached contracts, employment
discrimination and other unsavory business practices? Or the
one who, also exposed only to civil liability, habitually
fails to pay debts and obligations, and whose property is
encumbered with liens? Why not establish disqualification on
that basis? That voter appeals to me much less--his or her
"judgment" is more suspect--than the ex-felon of my example.
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu]
Sent: Friday, February 11, 2005 10:13 AM
To: Volokh, Eugene; election-law@majordomo.lls.edu
Subject: RE: criminal disenfranchisement
It is difficult for me to embrace the
don't-let-them-cast-votes-that-are-bad-for-society
philosophy, given that what is bad for society is too
contestable today and that what has been considered bad for
society historically can often now be considered
indispensable to society, e.g., the notion of equality of
citizens. Indeed, depending on the election, I am not quite
sure what a vote that is bad for society is. Was a vote for
Bush bad for society or was a vote for Kerry bad for society?
Or was is the mental process that someone used to determine
his or her vote that makes the vote itself bad for society?
But even if I embraced the stop-bad-votes-for-society
philosophy, I am unconvinced that the fact of a felony
conviction differentiates those with bad moral judgment from
those without bad moral judgment. Of course, there are
plenty of folks without felony convictions who have bad moral
judgment. By the same token, there good reason to believe
that many with felony convictions have good moral judgment,
but have engaged in unlawful or immoral acts.
-Hank
Henry L. Chambers, Jr., Professor of Law
University of Richmond
28 Westhampton Way
Richmond, VA 23173
804-289-8199
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of
Volokh, Eugene
Sent: Thursday, February 10, 2005 6:29 PM
To: election-law@majordomo.lls.edu
Subject: RE: criminal disenfranchisement
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
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