It seems to me that, on prudential grounds, society should be reluctant to
disenfranchise felons for life or even for a very long period of time (more
than perhaps five years after completion of sentence). Whether or not such
disenfranchisement would be justified under political or moral theory, it is
likely to exacerbate the racial polarization of our society, with very
negative consequences. Such long term disenfranchisement, in my view, would
need to be justified by strong evidence that it is necessary to prevent even
worse negative consequences. I have not seen such evidence.

But that is a prudential argument. With regard to whether moral or political
theory could justify long term disenfranchisement -- that is, with regard to
whether felons have a moral or political entitlement to vote within some
reasonable period after completing their sentences -- I have an open mind.
There is force to the argument that those who refuse to conform their
conduct to the law should not have a role in making the law. In social
contract terms, a felony could be the equivalent of a material breach; one
who materially breaches a contract ordinarily loses the right to enforce the
contract and to benefit from it. One might also argue, however, that a
person should regain rights under a social contract after a breach, if the
person pays a substantial penalty for the breach and then adheres to the
terms of the contract over a substantial period of time. (I'm sure political
scientists have considered these matters in a much more sophisticated way.)
 
Finally, I have to disagree with the idea that there is nothing special
about a felony conviction as compared with other moral failings that one
might think should deprive a person of voting rights. First, criminal
convictions, including of course felony convictions, occur under the most
demanding standard of proof (beyond a reasonable doubt). We can't afford to
evaluate each person's fitness for voting under such a standard; the
hearings would never end. Second, society's choice to make an act a felony
is a determination that those who commit such acts deserve to lose their
liberty, at least for a substantial period of time, or in some cases their
lives. As a society, we determine that felony violations of the law are the
most reprehensible. It is not unreasonable to link the right to affect the
making of the law with the willingness to avoid the most reprehensible
violations of the law. That of course does not mean that society has in
every case acted wisely in determining what acts should be considered
felonies. 

Again, my view is that prudential concerns trump moral and political theory.
In our present circumstances, we probably should not embrace long term
disenfranchisement of felons. 

Mark S. Scarberry
Pepperdine University School of Law 

-----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.