From prison cell to polling booth

By Jonathan Bradley

Last week, attorney general Eric Holder urged states to dismantle laws preventing convicted felons from voting:

[F]ormerly incarcerated people continue to face significant obstacles. They are frequently deprived of opportunities they need to rebuild their lives. And in far too many places, their rights — including the single most basic right of American citizenship — the right to vote — are either abridged or denied.


These restrictions are not only unnecessary and unjust, they are also counterproductive. By perpetuating the stigma and isolation imposed on formerly incarcerated individuals, these laws increase the likelihood they will commit future crimes. They undermine the reentry process and defy the principles — of accountability and rehabilitation — that guide our criminal justice policies. And however well-intentioned current advocates of felony disenfranchisement may be — the reality is that these measures are, at best, profoundly outdated. At worst, these laws, with their disparate impact on minority communities, echo policies enacted during a deeply troubled period in America’s past — a time of post-Civil War repression. And they have their roots in centuries-old conceptions of justice that were too often based on exclusion, animus, and fear.

Holder went on to describe the extent of the problem:

Across this country today, an estimated 5.8 million Americans – 5.8 million of our fellow citizens – are prohibited from voting because of current or previous felony convictions. That’s more than the individual populations of 31 U.S. states. And although well over a century has passed since post-Reconstruction states used these measures to strip African Americans of their most fundamental rights, the impact of felony disenfranchisement on modern communities of color remains both disproportionate and unacceptable.

Throughout America, 2.2 million black citizens – or nearly one in 13 African-American adults – are banned from voting because of these laws. In three states — Florida, Kentucky, and Virginia — that ratio climbs to one in five. These individuals and many others — of all races, backgrounds, and walks of life — are routinely denied the chance to participate in the most fundamental and important act of self-governance. They are prevented from exercising an essential right. And they are locked out from achieving complete rehabilitation and reentry — even after they’ve served the time, and paid the fines, that they owe.

States that disenfranchise felons

Eleven states restrict voting rights for felons to some degree. And as Jamelle Bouie explains, these laws don't target racial minorities by accident. It's what they were designed to do:

In the 1870s and 1880s, for instance, Southern states created a whole new class of crimes—like “vagrancy”—which were punished by disenfranchisement and mandatory labor. And of course, the effect of these measures was to re-enslave African Americans in everything but name.

By the turn of the century, disenfranchisement was codified in Southern state constitutions. One of the most egregious examples comes from Virginia, where then Delegate Carter Glass—the future Senator Glass of Glass-Steagall—praised felon disenfranchisement as a plan to “eliminate the darkey as a political factor in this state in less than five years.”

For a country so wedded to its democratic traditions as the United States, the idea that an entire class of people should be prevented from voting — in some cases, for the rest of their lives — seems counterintuitive. Even given the racial animus behind the laws, it seems like it should be anachronistic. And hopefully that's the direction in which this peculiarity is heading. After all, Holder shares his views on this issue with 2012 Republican presidential candidate Rick Santorum and 2016 Republican possible Rand Paul:

Curiously, this is one of the few issues where there is some bipartisan agreement—and probably the only one where there is little quarrel about the racial implications. Just look where Holder made this announcement. It was not in a place traditionally considered safe to make such connections to racism, like an NAACP event, but in a room where a number of Republican lawmakers were present. One of them, Sen. Rand Paul, a GOP presidential hopeful for 2016, was in no way flummoxed by Holder’s dredging up the painful racist history behind these laws. In fact, Sen. Paul met with Holder for lunch the next day to discuss these issues further. It’s a good thing too because Paul’s own state of Kentucky has one of the strictest bans on former felons voting in the nation.

Not all Republicans agree with Santorum or Paul; there are more than a few state legislators and governors who are vociferously opposed to restoring to felons the full benefits of citizenship. Perhaps this is because they fear the re-encfranchised are more likely to vote for their Democratic opponents. Sometimes it derives from a belief that criminals are a class intrinsically at odds with a well-functioning society, and must be kept that way. Here, for the record, is Roger Clegg's argument in favour of preventing certain people from democratic participation:

H[older] conveniently ignores the reason for felon disenfranchisement, namely that if you aren’t willing to follow the law, then you can hardly claim a role in making the law for everyone else, which is what you do when you vote. We have certain minimum, objective standards of responsibility, trustworthiness, and commitment to our laws that we require of people before they are entrusted with a role in the solemn enterprise of self-government. And so we don’t allow everyone to vote: not children, not noncitizens, not the mentally incompetent, and not people who have been convicted of committing serious crimes against their fellow citizens.

Kevin Drum counters:

I believe the right to vote is on the same level as free speech and fair trials. And no one suggests that released felons should be denied either of those. In fact, they can't be, because those rights are enshrined in the Constitution. Voting would be on that list too if it weren't for an accident of history: namely that we adopted democracy a long time ago, when the mere fact of voting at all was a revolutionary idea, let alone the idea of letting everyone vote. But that accident doesn't make the right to vote any less important.

And yet I don't think Drum is quite right about it being accidental for the absence of the right to vote from America's fundamental codified freedoms. He's not wrong that it should be there, and it is true enough that it accords with the country's contemporary self-conception and ideas about the operation of a properly functioning democracy. But even prior to Reconstruction, the US has conceived of democracy in ways that don't necessarily involve universal franchise. 

This seems odd, considering we tend to think of voting and democracy as being one and the same. Indeed, I believe this is a belief Australians are particularly attached to, which is why we are little troubled by the peculiar institution that is mandatory voting, why we pioneered the secret ballot, and why we were one of the first nations in the world to cease our disenfranchisement of women. It might also explain why — until the most recent federal election, anyway — the Australian Electoral Commission was such a well-performing body, particularly when contrasted with the inefficiencies and incompetencies of US electoral overseers. 

The US, on the other hand, while it values voting, has a long history of considering the practice only a component of democratic governance, and a not necessarily integral one at that. Particularly in their nation's earliest days, Americans believed that political participation should be reserved for citizens who had proven themselves responsible, respectable, and capable of self-regulation. Paradoxically, the nation's founders were both intent on creating a self-governing citizenry, but deeply worried about giving a responsibility as important as governance to the citizenry. That's why the Constitution includes features specifically devised to undermine the will of the people: the unrepresentative and, until the 20th century, non-popularly elected Senate, for instance, or the Bill of Rights, or the Electoral College.

Consider this from James Madison, debating at the Constititional Convention:

The landed interest, at present, is prevalent; but in process of time, when we approximate to the states and kingdoms of Europe; when the number of landholders shall be comparatively small, through the various means of trade and manufactures, will not the landed interest be overbalanced in future elections, and unless wisely provided against, what will become of your government? In England, at this day, if elections were open to all classes of people, the property of the landed proprietors would be insecure. An agrarian law would soon take place. If these observations be just, our government ought to secure the permanent interests of the country against innovation. Landholders ought to have a share in the government, to support these invaluable interests, and to balance and check the other. They ought to be so constituted as to protect the minority of the opulent against the majority.

Or Alexander Hamilton, at the same:

The voice of the people has been said to be the voice of God; and however generally this maxim has been quoted and believed, it is not true in fact. The people are turbulent and changing; they seldom judge or determine right.

And Gouverneur Morris:

The second branch ought to be composed of men of great and established property — an aristocracy. Men, who from pride will support consistency and permanency; and to make them completely independent, they must be chosen for life, or they will be a useless body. Such an aristocratic body will keep down the turbulency of democracy. But if you elect them for a shorter period, they will be only a name, and we had better be without them. Thus constituted, I hope they will show us the weight of aristocracy.

(It's unsurprising that wealthy white men thought that enhancing the power of wealthy white men was the best way of ensuring good government.)

It's like Jamelle Bouie said in a piece from last year

Many of the Founders — especially the slave-owning delegates of the South — were preoccupied with what they called “republican virtue.” As they saw it, a republic couldn’t function without a virtuous citizenry participating in public life, with virtue defined by economic independence. This formed the basis for arguments against expanding the franchise, as you can see decades later, as lawmakers in states across the country debated universal male suffrage. “In this country,” said one Massachusetts conservative, where the means of subsistence were so abundant and the demand for labor great,“ any man who couldn’t obtain property was either “indolent or vicious.”

This isn't by any means a worthless model of democracy. It gave America the Bill of Rights and the separation of powers, for a start, and in a larger sense, the notion that voting is only part of what produces a democratic society has led to a polity that permits much greater citizen involvement in the mechanisms of democracy. In America, democracy is something that happens between elections as well as on election day — a virtuous citizen would not be so irresponsible as to only participate in government when called to vote. Even though there is no constitutional right to vote, there is notably a constitutional right to petititon the government for redress of grievances.

The philosophical benefits that have arisen from Revolutionary-era snobbery (and racism), however, do not justify maintaining the snobbery. The potential for American citizens to involve themselves in their country's politics is one of its great strengths, from the primary system of nominations, to its open party structures, to its wide-range of elected officials, to (when not used excessively) its options for citizen initiatives or recalls. The expansion of the franchise since the Constitution was adopted — to non-landowners, to blacks, to women — has been a crucial part of striving toward the more perfect union. Felon disenfranchisement is in accordance with US history, but it is unsupportable in the US present.

Incidentally, as an illustration of the gulf in terms of the respective US and Australian interpretations of the centrality of voting to democratic society, here is what the Australian Electoral Commission has to say about prisoners voting:

Australian Electoral Commission advice on prisoner voting

18 February 2014