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Debate Club
DEBATE CLUB 11/1/04

Should Ex-Felons be Allowed to Vote?

Roger Clegg and Marc Mauer debate.

This Week's Entries: Monday | Tuesday | Wednesday | Thursday | Friday

This Tuesday, Americans go to the polls, but over four million prisoners, parolees, and ex-convicts don't have that option, even by absentee ballot. Forty-eight states prohibit their prisoners from voting--Vermont and Maine are the exceptions--and seven terminate the voting rights of ex-felons for life.

After the 2000 election, several states moved to curtail these restrictions. Some, like Delaware, shortened how long prisoners could not vote after their release. Others, like Florida, are immersed in legal battles over the topic.

By committing a felony, does someone give up his right to a ballot, or should ex-felons be allowed to vote?


Roger Clegg is general counsel of the Center for Equal Opportunity. Marc Mauer is Assistant Director of The Sentencing Project.

Clegg: 11/1/04, 09:50 AM
Here's my basic position: In our democracy, there's a strong presumption that everyone should be allowed to vote. I think that there are both instrumental and equitable reasons for this. That is, we might think about letting only the wise vote if we had some way of identifying wise people, but we don't (it was Bill Buckley, after all, who rightly observed that he would rather be governed by the first 2000 names in the Boston phonebook than by the 2000 people on the Harvard faculty), and letting everyone vote is a way of diversifying risk (like an index fund: there's a book out now--The Wisdom of Crowds--about how the group is wise even if its constituents may be foolish). And, equitably, we believe that there is something troubling about being bossed around without having some say. The most famous formulation of this principle is, "No taxation without representation."

And yet, we don't let everyone vote. We don't let children vote, for instance, or noncitizens, or the mentally incompetent. Why? Because we don't trust them and their judgment. We have different reasons for not trusting them, but it seems to me that that is their common denominator. For some groups of people, their untrustworthiness trumps the instrumental and equitable presumptions. We're confident enough that children and the mentally incompetent lack good judgment; we don't see it as inequitable to bar noncitizens from voting, and we question their commitment to our res publica.

So the question is, do criminals belong in that category? And I think the answer is clearly yes. People who commit serious crimes have shown that they are not trustworthy. And, as to equity, if you're not willing to follow the rules yourself, you shouldn't be able to make the rules for everyone else. Self-government is serious business.

Now, I will freely concede that there are felons who ought to have their right to vote restored, but that should be done on a case-by-case basis, weighing (a) how serious the crime was, (b) how recently it was committed, (c) whether there has been a series/pattern of crimes, and (d) whether the individual has otherwise shown that he or she has turned his or her life around.

Anyway, that's my position. Now, Marc, let me ask you this question: Are there any circumstances where you would not allow a criminal to vote? Suppose, for instance, a terrorist has blown up the Capitol, killing every Senator and Representative. He pleads guilty, is completely unrepentant, and awaits execution in prison. But meanwhile there is a special election to fill the now-vacant positions. Would you let him vote?

Mauer: 11/1/04, 05:55 PM
Roger, your central position is that people with felony convictions should be prohibited from voting because they have an undesirable character. This raises a concern regarding how these people will vote. To begin with your hypothetical--should a terrorist who has blown up the Capitol be permitted vote?--let's look at a real world, though not American, analogy.

In 1996, the Israeli Supreme Court upheld the right of prisoners to vote. Intriguingly, the case was brought on behalf of Yigal Amir, the assassin of Prime Minister Yitzhak Rabin, and arguably the most despised citizen of his country. In upholding this fundamental right, the Court noted that society must "separate contempt for his act from respect for his right."

You express concern with the "trustworthiness" of people with felony convictions. If I was in charge of setting voting qualifications, there are many categories of people whom I would exclude due to their "untrustworthiness." For a start, admitted racists or anti-Semites wouldn't vote. Maybe I'd also exclude people who couldn't demonstrate that they had devoted sufficient attention to the upcoming election. Or perhaps greedy people who lack a commitment to the overall well-being of the community.

But in a democracy we don't (or at least shouldn't) set up such barriers. Let's not forget that it was not all that long ago that many Americans questioned whether women and African Americans should be part of our political community. No matter how reprehensible or ill-informed I find someone's views, my remedy is obviously to get out and vote and to convince others to support my position.

Voting is also clearly a fundamental expression of free speech. So if people with felony convictions (current or previous) are denied the right to vote, should we then also impose other restrictions on their speech? Should prisoners not be permitted to write a letter-to-the-editor? Should a probationer not be permitted to participate in the PTA at his child's school? Such restrictions hardly seem necessary to protect the community from any harm these people might cause.

This philosophical discussion is important, but the real world impact of these policies is equally significant. With more than four million citizens with felony convictions ineligible to vote, we may be selecting a president and political representatives this week based on this antiquated policy. This is precisely what happened in Florida in 2000, where President Bush prevailed with a margin of 537 votes while 600,000 ex-felons were not able to vote. We will never know how this group would have voted, but clearly the state's exclusionary policy may have decided the election. And the racial dynamics of disenfranchisement--13% of black males will not be voting this week due to disenfranchisement--has profound implications for representative democracy.

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Clegg: 11/2/04, 08:58 AM
While you don't quite come right out and say so, I take it that you would indeed allow my hypothetical terrorist to vote. So you get points for ideological consistency, although not for common sense. Someone trying to destroy our government can claim a right equal to that of any other citizen in running it? Sounds odd to me.

It is also interesting that you define trustworthiness in terms of what people believe and think. I'm more tolerant than that. I would rely on objective criteria: Is the person over 18? Is he or she a citizen? And has he or she been convicted of a serious crime--that is, a felony? No need to pass any of your tests.

Regarding voting and "free speech": The two are quite distinct. The Fourteenth Amendment expressly allowed felons to be denied the right to vote, and no one thought that this was changing the scope of the First Amendment. We allow free speech to children and noncitizens, for instance, even though we don't let them vote. We guarantee free speech because we want a robust marketplace of ideas; voting, which is done in secret, is not expressive in this way. Note that we also forbid felons from other activities--like holding certain jobs and possessing firearms.

Regarding "real world impact": The proponents of felon voting seem to think it is a decisive point in their favor if they can show that the felon vote may change the outcome of a presidential election. Let's just say that this is a two-edged sword at best. Of course it can change the outcome of an election; if it couldn't, then we wouldn't bother arguing about it. I'm sure that letting children and noncitizens vote could tip the balance in a close election, too. So what? You say that, if we let criminals vote, it may have a decisive outcome on the presidency. Yes--and that's supposed to reassure our law-abiding citizens?

You end by playing the race card--although, I hasten to add, not from the bottom of the deck. We are supposed to be swayed by the fact that a disproportionate number of those disenfranchised are black. But why should this be? If disenfranchisement makes sense, then why should the racial makeup of prison inmates change our minds about it? And if it doesn't make sense, is it nonetheless acceptable so long as it meets a racial quota? In other respects, too, the felon population does not look like America: It is overwhelmingly male, with certain age cohorts over- and others under-represented, and it is also drawn from the poor. Why not play the sex card, or the age card, or the money card?

Mauer: 11/2/04, 02:49 PM
You are quite concerned with the "trustworthiness" of voters and believe that you have an objective criterion--a felony conviction --that defines this for us. This would then seem to lead us to a position whereby people convicted of either mass murder or first-time marijuana possession could both be assumed to be equally untrustworthy and a threat to the otherwise law-abiding electorate. Or that a $200 theft defined as a felony in one state represents a good measure, but not a similar theft considered a misdemeanor in a neighboring state.

You also believe that these untrustworthy voters will shift the outcome of elections, although you offer no evidence whatsoever to document this. But let's consider how this might come about, even for your hypothetical terrorist case. In today's election, the choice is between Bush and Kerry. We can all agree that there are clear differences between them, but it's hard to see how someone who wants to "destroy our government" will find much resonance in either candidate's platform. But maybe we should look at the local level, such as elections for sheriff, presumably a more direct concern for public safety interests. We can look pretty far, but I don't see the prospect of many candidates advancing a "pro-crime" agenda in order to take advantage of this presumed voting bloc.

Regardless of the severity of a person's felony conviction, there remains a fundamental question of whether this should be tied to the loss of the right to vote. Disenfranchisement hardly meets the traditional goals of sentencing. Certainly, it exerts no deterrent effect over and above any deterrence that imprisonment might achieve. And denying the vote runs counter to the goal of rehabilitation. Why send a message to people who are trying to become integrated into the community that they are still second-class citizens? The only function of sentencing addressed by disenfranchisement is punishment, but it is far from obvious what the "clear and compelling state interest" is in promoting this.

You conclude by accusing me of "playing the race card," a curious way to describe the legacy of three centuries of oppressive social history in this country. Well, the history of disenfranchisement policy is in fact overlaid with racism. In some Southern states in the post-Reconstruction era, disenfranchisement policies were tailored with the specific intent of excluding black voters based on the particular crimes that legislators of the time believed they were prone to commit. We can debate whether today's disenfranchisement policies are similarly motivated, but there is little doubt that racial disparities pervade the criminal justice system, ranging from law enforcement profiling to disparate application of drug law enforcement. You would presumably say this is unfortunate (if indeed you concur with the presence of such disparities), but should not affect our support for disenfranchisement. If so, the message to communities of color becomes one of counseling patience--your community will gain its legitimate degree of political influence just as soon as we can eliminate these pesky disparities.

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Clegg: 11/3/04, 10:01 AM
Marc, each state defines what a felony is; there is no reason why there must be uniformity in deciding what is a serious crime. And it seems to me perfectly fine to say that all felons have shown at least enough untrustworthiness to lose their right to vote while in prison. Once they are out, then states can make case-by-case distinctions between murderers, drug dealers, and the like.

You, Marc, are the one who refuses to make distinctions. You would treat them all the same: No one loses his right to vote, ever, whether in prison or out, whether a murderer or a drug dealer, whether this is the first offense of the tenth. While the title of this debate frames the question to the contrary, there is no such thing as an "ex-felon." That would be like being an "ex-veteran." One could use this neologism to make a distinction between felons who have served their time and those who have not, but I want to stress, Marc, that you don't make this distinction: You believe that all felons in prison or out ought to be able to vote, right?

As for felons shifting the outcome of an election: Marc, you were the one who raised this possibility, not me, in your post of Monday!

You argue that disenfranchisement serves a different purpose than most sentencing, and so it does. So what? The arguments I've made against disenfranchisement have not been within the rubric of sentencing. Depriving felons of firearms serves a different purpose, too, than traditional sentencing, but makes no less sense for that.

Felons can lose their second-class status and have their right to vote restored but, again, this should be done on a case-by-case basis. I would have no problem with a formal ceremony after time has been served and there has been a certain period of good behavior--including, perhaps, some community service--outside of prison. That would be the way to encourage the reintegration of felons into the community.

As for race, I've addressed the claim that these laws as rooted in discrimination in a recent column on National Review Online: The fact is, they aren't.

Yes, there are racial disparities in the criminal justice system, but the major reason by far for this is that more felonies are committed by those in some racial groups than in others, and there is no serious argument to the contrary. And you're right, Marc: To the extent that some relatively minor part of these disparities is a result of discrimination by police or prosecutors, I would argue that the solution is to address that discrimination, not to let criminals vote.

The people whose votes will be most diluted if criminals are allowed to vote will be the law-abiding folks in high-crime communities. And these people are themselves disproportionately poor people and people of color.

Mauer: 11/3/04, 01:15 PM
Roger, you seem very worked up about getting me to acknowledge that I believe everyone with a felony conviction should be able to vote. So, yes, I do think that people in prison should have the right to vote. In many parts of the world, this places me in a very mainstream position.

For example, our immediate neighbor, Canada, permits people in federal prison to vote, a practice which was affirmed by their Supreme Court, stating that "Denial of the right to vote on the basis of attributed moral unworthiness is inconsistent with the respect for the dignity of every person that lies at the heart of Canadian democracy." Earlier this year, the European Court of Human Rights struck down the blanket denial of voting rights for prisoners in the United Kingdom.

And for those Americans who disdain looking to other nations for policy direction, we have the examples of our own states of Maine and Vermont which permit people in prison to vote. Shockingly enough, these states have not been taken over by rampaging criminals as a result. In fact, as described in a New York Times article earlier this week, prisoners who vote in Maine express a mix of liberal and conservative views on social, economic, and military policy.

You also distort the distinction in assessing the impact on the political process of allowing people with felony convictions to vote. Your contention is that this will lead to terrorists trying to "destroy our government." Have you been inside a prison lately? Half the people incarcerated nationally are there for a non-violent property or drug offense. But yes, disenfranchisement policies are likely to shift the political balance, since people with felony convictions are disproportionately low-income and from communities of color.

Likewise, the racial history of disenfranchisement laws is hardly as benign as you suggest. While it is true that some of these practices emerged at the time of the founding of the nation, the racial dimension is inescapable. Yesterday, I described the blatantly racist history in the post-Reconstruction South. In 1901, the president of the Alabama constitutional convention framed the practice quite clearly: "And what is it that we want to do? Why it is within the limits imposed by the Federal Constitution, to establish white supremacy in this State."

A comprehensive analysis of the national development of these laws by Angela Behrens and colleagues at the University of Minnesota concludes that "the racial composition of state prisons is firmly associated with the adoption of state felon disenfranchisement laws." In other words, more blacks equals more restrictions, controlling for other factors.

The degree of racial disparity in the prison system that is unaccounted for by crime rates is hardly a trivial number. The most comprehensive study of this issue found that only 76% of this disparity could be explained by arrest rates. This figure is likely to be even lower today, given the enormous increase of drug offenders, along with the racially skewed nature of the drug war.

And finally, you seem to have appointed yourself as a spokesperson for the "law-abiding folks in high-crime communities." If we're talking about black neighborhoods, it's odd that much of the leadership on disenfranchisement reform has come from the Congressional Black Caucus, NAACP, and other civil rights groups. Perhaps you should have a chat with some of these leaders to get a sense of why they've taken a position that seems so threatening to you.

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Clegg: 11/4/04, 11:05 AM
A few housekeeping matters first, Marc:

(1) I'm not "worked up" about getting you to acknowledge your unwillingness to draw a distinction between felons in jail and out, murderers and drug dealers, and so forth. I just want our audience to know about it, so that they won't think I'm mischaracterizing your position, which is that not only those who have "paid their debt to society" should be able to vote, but even those who haven't.

(2) No one--and certainly not me in this debate--has suggested that letting felons vote will result in states being taken over by "rampaging criminals," so you shouldn't suggest otherwise. I'm not afraid that society will be taken over by illegal aliens if we let them vote, but I still oppose it; same thing here.

(3) Likewise, your statement that "[my] contention that this [that is, felon voting] will lead to terrorists trying to 'destroy our government'" is silly. Of course, I've said no such thing, and I think you know it; I just think--contrary to you--that those trying to destroy our government, among others, shouldn't have a role in running it.

(4) I have not "appointed [my]self spokesperson for the 'law-abiding folks in high-crime communities.'" I've just pointed out a policy implication of letting felons vote--the dilution of these folks' political power--which is a perfectly legitimate thing for me to do. I don't accuse you appointing yourself spokesperson for criminals, after all.

Now, it is true--and in the National Review Online column I cited in my last posting I acknowledged--that there were five states in the post-Reconstruction South that deliberately designed their disenfranchisement statutes to keep the just-freed slaves from voting. But (a) those laws are no longer on the books, and (b) those laws didn't, through some strange alchemy, transform all the other states' statutes--with roots in ancient Greece and Rome and passed before and after the Civil War, in the North and the South and the West--into Jim Crow laws.

Marc, where you can show that a state has enacted a law with the purpose and the effect of disenfranchising people because of their race, I will support you wholeheartedly in challenging it--and the courts will strike it down. As you know, the Supreme Court in 1985--in a unanimous opinion written by William Rehnquist--struck down a post-Reconstruction felon disenfranchisement law enacted with racist intent by Alabama. That, of course, is the state you cite, and the Court quoted the same language in the legislative history that you did.

So there is simply no need to throw the non-racist babies out with the racist bathwater. Let's face it: You want to do so because you know that you can't show racial animus in any existing statutes, for the simple reason that they don't have any.

Instead of defending your absolutist position that would allow any criminal to vote--even one still in prison, even one convicted of the most heinous crime, even one who has committed crime after crime and has shown no contrition whatsoever--why don't you focus on improving the mechanisms in the various states for restoring the right to vote on a careful, case-by-case basis?

Let's get back to the basic questions, Marc. Do you really think that our government and our political system will be improved by letting criminals vote, and do you really think it is unfair to say that people have to be willing to follow the law before they can claim a role in making it?

Mauer: 11/4/04, 02:49 PM
Much of your concern about permitting people with felony convictions to vote still comes down to the fact that you believe that doing so will "dilute" the impact of law-abiding citizens, despite the fact that you have no evidence to indicate this is the case. Indeed, research by political scientist Jonathan Casper found that almost all defendants believed "the law they violated represented a norm that was worthy of respect and that ought to be followed."

Once we get past the lack of data, there is still the philosophical question of whether these policies are reasonable. An increasing body of opinion suggests this is not the case. In 2001, the bipartisan Ford/Carter National Commission on Federal Election Reform unanimously recommended that voting rights be automatically restored upon completion of sentence. This position has recently received the support of the American Correctional Association, the professional body of corrections leaders, as well.

Note that these positions are very much in contrast with your proposed method of "restoring the right to vote on a careful, case-by-case basis." Such a process leads to processes such as that in Florida, whereby the governor and his cabinet personally review the restoration applications of people seeking to restore their voting rights. In these sessions, current Governor Jeb Bush frequently asks applicants whether they are using alcohol, getting along well with their family, etc. These would all be perfectly legitimate questions for a parole officer to ask someone under supervision. But it is entirely inappropriate in a democracy to be imposing such character tests on something as fundamental as the right to vote. No one asked me on Election Day whether I had been drinking the night before or was planning on going to work that day.

Looking more closely at the relationship between a felony conviction and voting rights, the American Bar Association--as respectable an organization as they come--has endorsed a policy that is opposed to any deprivation of voting rights based on a conviction (although the organization is silent as to whether people in prison should be able to vote).

So I think there's no reason to believe that allowing people with felony convictions to vote will "dilute" the influence of the rest of us. But why do I believe that "our government and our political system will be improved by letting criminals vote"? Because in addition to being citizens, their life experiences, just like yours or mine, should be added to the national equation of how our collective political ideas get sorted out. Does being convicted of stealing a car or insider trading mean that people are not capable of having opinions about the war in Iraq, Social Security, or gay marriage?

And on the racial dynamics of disenfranchisement laws. You point out that the Supreme Court overturned Alabama's post-Reconstruction racist statute. I'm somewhat less encouraged than you that it took nearly a century--until 1985!--for such a blatantly racist policy to be struck down. And it is far from clear that current laws are without racial animus. Litigation in Florida contends that this is exactly the case with regard to that state's disenfranchisement policy, arguing that the intent of the acknowledged racist law of 1868 was never overturned. This case was recently argued in the 11th Circuit. And the 9th Circuit last year ordered a trial court to consider how racial disparities in the criminal justice system overall affected disenfranchisement practices. So it is far from settled that race plays no role in the history or current practice of these policies.

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Clegg: 11/5/04, 10:49 AM
I started this week's debate by stating my basic position, which is that there ought to be a presumption that people who have committed serious crimes lack the trustworthiness to be allowed the vote. This presumption has roots deep in western civilization, and we deny the right to vote to other groups that we view as objectively too untrustworthy to have a say in our self-government: children, for instance, and noncitizens, and the mentally incompetent. This makes sense even though we have instrumentalist and equitable reasons for allowing most adult citizens the vote. So, Marc, at the end of my posting yesterday, I asked you two questions: The instrumentalist one of why you thought our government and political system would be improved by letting criminals vote, and the equitable one of what's unfair about saying that people have to be willing to follow the law before they can claim a role in making it. Let's see how you answered these two questions.

You answer the first by saying that criminals, too, have life experiences and opinions on, for instance, the war in Iraq, Social Security, and gay marriage. That's certainly true, but children and illegal aliens also have opinions, and we don't let them vote. I suppose one might argue that criminals have unique perspectives or insights, but that's a tough argument for you to make, because you've gone out of your way to argue that there is no evidence that criminals as a group vote any differently from the general population (of course, you never cite any evidence to the contrary either).

You never do answer the second question of why it's unfair to say that those unwilling to follow the law shouldn't claim the authority to help make it for others. The closest you come is an argument that these policies are not "reasonable," but you never say why, except to cite some authorities. And who are these authorities? A federal commission headed by Jimmy Carter and Gerald Ford, the American Correctional Association, and the American Bar Association, which you call, apparently without irony, "as respectable an organization as they come." I don't know much about the ACA, but as for Jimmy Carter, Gerald Ford, and the ABA, I would be hard-pressed to come up with a more lackluster group.

Another question I asked you is why you don't devote more time to improving the case-by-case process of restoring the right to vote to some felons once they get out of prison, instead of taking the absolutist position that no one ever should be deprived of the right to vote for a crime, no matter what, when, or how many. The closest you come to answering this question is when you say that you don't like the way Florida's current case-by-case system works. And that's not really an answer.

Finally, the evidence that you produce--in response to my skepticism regarding the current existence of felon disenfranchisement laws on the books that reflect racial animus--is that someone has filed a lawsuit in Florida that makes that claim. This may come as a surprise to you, Marc, but many times lawsuits allege things that turn out not to be true. You note that an Alabama law was on the books for nearly a century before being struck down, but that's because our equal-protection law was ineffectual for most of that time, and there's no way such a law could last long today. If you disagree, then those generous donors supporting the Sentencing Project should get their money back.

Mauer: 11/5/04, 04:42 PM
Your basic argument continues to be premised on the elusive concept of "trustworthiness," with frequent comparisons made to the exclusion of children and mentally incompetent people from the voting booth. But this is faulty logic.

Children and mentally incompetent people are prohibited from voting not because we believe they are untrustworthy, but because we have made a societal decision that they are not mature enough to make informed decisions and to appreciate the consequences of their actions. For the same reasons, we do not permit children to drive cars or to drink alcohol. But an adult on probation for a felony conviction is certainly permitted to have a driver's license and to drink alcohol. The only exception we generally make in this regard is to deny these privileges to persons convicted of drunk driving. But this is a question of public safety, not maturity or trustworthiness.

So your rationale for disenfranchisement therefore has no basis in terms of restrictions we impose on other groups, but rests on your concept and definition of trustworthiness. I have earlier elaborated on the problematic nature of trying to make this distinction, assuming that one believes it is a reasonable criterion for voting. But you seem to exhibit no concern whatsoever about the consequences of imposing character tests on the most fundamental right we have as citizens in a democracy: the right to vote. I suppose I still maintain the na´ve belief that this was the ideal behind the struggle for democracy in this country.

A century ago, arguments eerily similar to yours were voiced in regard to women's suffrage. At that time, many people (mostly men) believed that women were not worthy of voting, and that permitting them to do so would "dilute" the influence of the presumably enlightened male electorate. This seems rather antiquated today. Perhaps someday, so too will the notion that some citizens should not be able to vote, even those with a felony conviction.

And let me correct your misperception that I spend all my time advocating an "absolutist position" at the expense of improving the process of restoring voting rights to people with felony convictions. While I have no shame about my absolutist--I prefer to consider it consistent and rational--position, in fact our work at The Sentencing Project has involved extensive engagement in working for change in policy and practice. In alliance with the Right to Vote campaign and many allied organizations nationally, we have been pleased to witness the significant reforms that have been achieved in this area in recent years. Since 1996, nine states have scaled back or repealed aspects of their disenfranchisement laws. These include such changes as the elimination of a permanent ban on voting for people with a felony conviction in New Mexico, the extension of voting rights to people on probation in Connecticut, and easing the restoration process in Alabama, Delaware, Maryland, and other states. Notably, these changes have been bipartisan--five of the bills were signed into law by Republicans and four by Democrats.

We've just been through what was by all accounts an historic election this week, and we will all be sorting through the meaning of it over the coming months. Sitting on the sidelines of this engagement, though, are the nearly five million Americans who were not able to participate due to a current or previous felony conviction. Three-quarters of this group are not incarcerated; they are either serving their sentence in the community or have previously completed their term. No other democratic nation even comes close to this scale of exclusion. I am not threatened by including the voices of these five million people in our national electorate. I think that's what democracy is all about.

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