http://electionlawblog.org/archives/003084.html
Voting as Allocation of Power Among Political Equals,
Or Voting as an Intelligence Test?
Bob Bauer recently remarked
that if "FEC Commissioner Brad Smith did not exist, members of the
reform community would work hard to invent him." In a similar spirit, I
am glad that Jonah Goldberg has written this
oped on ex-felon voting for the Los Angeles Times (link via
Brian
Leiter).
In my draft article on election administration reform, I discuss one
of my three reform proposals---to couple universal voter registration
conducted by the government with government-issued voter identification
(VID). Part of my discussion deals with potential criticisms, and it
includes the following:
I see three potential objections to this package deal from the
Republican side. First, there is the cost associated with this
government program. It will no doubt be expensive for the federal
government to create and maintain this massive database and to provide
VIDs with photographs and biometric information for every eligible
voter. Second, at least some Republicans likely still maintain the
notion that it should not be so easy for people to vote. Under this
view, registration barriers will segregate out those voters who are
likely to be less intelligent or less concerned. Third, the plan has
significant federalism costs by taking away registration powers from
the 13,000 local electoral jurisdictions and placing that role in the
hands of the federal government.
One thoughtful reader of my draft argued that I should give
contemporary examples of Republicans who maintain the notion that it
should not be so easy to vote, believing that my characterization was
unfair. (I do offer a quote from the Texas attorney general in 1971
(who I assume was a Democrat, but I have not checked), who defended his
state's onerous voter registraion requirements as follows: “those who
overcome the annual hurdle of registering at a time remote to the fall
elections will more likely be better informed and have greater
capabilities of making an intelligent choice than those who do not care
enough to register.”) But would a contemporary thinker make such an
argument? Consider Goldberg's statement from the oped:
Should felons be allowed to vote? Maybe. If you believe in
federalism, then there's no reason why this shouldn't be left to the
states, which is where I'm fine leaving it, along with gay marriage and
almost every other issue. But as a matter of principle, I oppose voting
by ex-cons because voting should be harder, not easier — for everybody.
Of course, Marion Barry and Hillary Clinton see things
differently.
The principle behind Clinton's proposed legislation — which would make
voting easier for criminals and noncriminals alike — is that the
nation's democracy is "enriched" when more people vote.
Who says? If you are having an intelligent conversation with
somebody, is it enriched if a mob of uninformed louts, never mind
ex-cons and rapists, barges in? People who want to make voting easier
are in effect saying that those who previously didn't care or know
enough about the country to vote are exactly the kind of voters this
country needs now.
My question is, how widespread is sentiment for Goldberg's notion?
Should voting be viewed as an intelligence test rather than the means
for allocating power among political equals? And even if one wants to
exclude "uninformed louts," are felon disenfranchisement rules and
onerous registration requirements the best way to do so? There may be
good arguments for continued disenfranchisement of felons, but I would
hope that this kind of argument is completely unacceptable in today's
society.
--
Professor Rick Hasen
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org