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17 USC 102

Let Civic Death Die

June 5, 2019

 

In the history of the American republic and its progress, no theme is more central than the expansion of the political franchise. The right to vote, fully realized in the form of universal suffrage, is the bedrock of democracy and citizenship's most sacred duty. American history tells the story of those who wrongfully tried through every tool of which human ingenuity is capable to deny that right to their fellow citizens and the heroes who marched, organized, fought, and died to extend the franchise to new classes. So it was in Seneca Falls. So it was in Selma. This fight has never been easy and those who found themselves on the wrong side of history often responded with more stringent restrictions, from poll taxes and literacy tests to voter ID laws.

 

The latest depraved tool of discriminatory human ingenuity to come under fire is felony disenfranchisement. Until rather recently, almost every state banned felons from voting both during and after their stints in prison. However, at least 15 states and the District of Columbia have restored voting rights to felons upon their release from prison, a policy supported by nearly two-thirds of all Americans. This growing trend of skepticism raises another important question: why not abolish felony disenfranchisement entirely? Why not let those currently in prison partake in our democracy?

 

This question was raised at a CNN Democratic town hall in April to various candidates, with Sen. Bernie Sanders (I-VT) saying, "I think the right to vote is inherent to our democracy. Yes, even for terrible people, because once you start chipping away ... you’re running down a slippery slope. ... I do believe that even if they are in jail, they’re paying their price to society, but that should not take away their inherent American right to participate in our democracy.” At the state level, a majority of the members of the D.C. Council and the Attorney General of the District of Columbia support the repeal of a 1955 felony disenfranchisement law and the right of prisoners to vote. Yet in American politics, there has been almost no lengthy or substantive debate on the issue. Just two states, Maine and Sanders's home state of Vermont, allow prisoners to vote while they are incarcerated. California and Colorado allow prisoners in county jails to vote (with few exceptions) and New York allows those on probation or parole to vote. Public opinion is no more kind on the issue to Sanders, with just 47 percent of Democrats and 21 percent of Republicans open to enfranchising even non-violent offenders.

 

In fact, one could say that the most substantial progress on this issue has actually been negative. Massachusetts and Utah have both revoked the voting rights of prisoners in the past two decades. Utah enacted felony disenfranchisement via legislation while Massachusetts put the question on the ballot for a referendum, which passed with 60 percent of the vote. The latter commonwealth's Republican governor at the time, Paul Cellucci, declared, "Criminals behind bars have no business deciding who should govern the law-abiding citizens of the Commonwealth."

 

 The idea that prisoners cannot vote relies upon the centuries-old theory of "civic death," which dictates that those who are convicted of a crime have their rights suspended while they are behind bars. In fact, this was once quite common in America and the Fourteenth Amendment allows for restrictions on the right to vote deriving from "participation in rebellion, or other crime." However, in recent decades Congress and the Supreme Court have deviated from the notion of civic death. Congress affirmed that the First Amendment's guarantee of religious freedom applies to prisoners when it passed the Religious Land Use and Institutionalized Persons Act (RLUIPA). Under RLUIPA, prisons or jails cannot "substantially burden" a person's exercise of their religion unless they can demonstrate that they have a compelling interest that cannot be achieved through less restrictive methods. Federal courts also recognize a constitutional right to free expression for prisoners, even if the expression of opinion may offend victims. Finally, and most relevant to the case of voting, the Supreme Court ruled in 1958's Trop v. Dulles that prisoners cannot have their citizenship stripped as punishment. Chief Justice Earl Warren writing for the majority argued that, "Citizenship is not a right that expires upon misbehavior," and denationalization represented "a form of punishment more primitive than torture," as it leads to "total destruction of the individual's status in organized society." He also reasoned that "citizenship is not lost every time a duty of citizenship is shirked." It is not difficult to notice this change and apply it to voting rights.

 

Unacknowledged but perhaps implied in Warren's writing is the idea that prisoners should have the right to vote. If prisoners retain their citizenship even while behind bars, then it is understood that they are entitled to the most fundamental right of casting a ballot. On the other hand, if they are prohibited from voting, there then exists a class of millions of people who are subject to the laws of the United States but have no voice in the federal government that makes those laws. Prisoners are often counted in the Census not in their place of residence but in the prison's legislative district. This poses a clear threat to the integrity of the Census and undermines its role in the apportionment of seats in the House of Representatives and Electoral College votes. By disenfranchising prisoners but including them in these population counts, states with large prison populations guarantee their overrepresentation (and the sway that comes with it) in Congress while the prisoners themselves lack representation. As prisons tend to be built in rural areas and prisoners tend to be from more urban areas, the result is a systematic transfer of political power from urban areas to rural areas, especially in local elections. This process is known as prison-based gerrymandering but is perhaps better understood as a modern-day Three-Fifths Clause, denying a minority population basic rights while using their unnatural presence in the state as a tool to gain political power. When skeptics say that they do not want prisoners swinging elections, they are blatantly ignoring the much larger impact of disenfranchisement and prison gerrymandering in swinging elections.

 

Americans may understand felony disenfranchisement to be common sense, but it is far from universal. Democratic countries around the world, including France, Kenya, Japan, South Africa, Israel, and Sweden allow prisoners to vote with no restrictions. Supreme courts in Canada and South Africa have rejected the constitutionality of disenfranchising prisoners, deeming it counterproductive to the promotion of civic responsibility and the rule of law. The European Court of Human Rights held that Britain's blanket prisoner disenfranchisement policy violated the rights of the prisoners. The government could punish its people by revoking their liberty but could not revoke the right to vote as it was the most central duty of citizenship, the court reasoned. Indeed, disenfranchisement of all prisoners is actually quite rare and disenfranchisement of any prisoners at all is even less so among democracies.

 

Those defending the status quo will make a series of counterarguments about the morality of prisoner enfranchisement. They will liken prisoners voting to foxes running the henhouse. Yet there is reason to suspect that prisoner voting would not weaken the reputation of American prisons, but instead would strengthen it. As Jamelle Bouie of The New York Times argues, "If anything, the political system needs the perspectives of prisoners, with their intimate experience of this otherwise opaque part of the state. Their votes might force lawmakers to take a closer look at what happens in these institutions before they spiral into unaccountable violence and abuse." The process of fostering discussion about important criminal justice issues like the use of solitary confinement, prisoner abuse, and racial disparities in criminal enforcement and sentencing often takes years to become substantive. It takes years of expensive and time consuming litigation for the people most affected by the prison system to bring their struggles with the system to the forefront of public consciousness. Letting prisoners vote would create a prison constituency that would bring much-needed firsthand perspectives to the criminal justice reform debate and would demand politicians to keep these issues relevant in campaigns and legislation.

 

Supporters of disenfranchisement will also argue that having committed a crime renders one unfit of participation in democracy. As Hans von Spakowsky of The Heritage Foundation and Roger Clegg of the Center for Equal Opportunity write, "If you're not willing to follow the law, then you should not have a role in making the law for everyone else." The objective of prisons, some will say, is to inflict punishment. But the ideals and absolutism of these arguments do not stand up to reality. For instance, there exists a great many people who have done awful things but retain their right to vote. We as a society do not revoke the voting rights of members of the Ku Klux Klan or adulterers. At the same time, there are criminals who were never caught or whose crimes were never reported to police who maintain the right to vote. More importantly, there is nothing about committing even the most serious of crimes that makes one unable to reason and make reasoned political choices. Prisoners are not inherently any more or less rational than anyone who is allowed to vote.

 

Others still will argue that granting felons the right to vote after they are released from prison is as far as America should be willing to go. But it is downright illogical to expect prisoners stripped of all of their rights for years at a time to enter back into society ready to use their rights well. Prisoners who are afforded the right to vote and to speak freely (as well as receive information more freely) will naturally be more ready to use their rights after release because they never stopped using them. Additionally, research by Ernest Drucker indicates that temporary gaps in voting have a strong, long-term effect on future voting behavior and that misinformation causes many former felons who have their rights restored to believe they are ineligible to vote, thereby depressing turnout. Put simply, if Americans care about felons' post-release civic participation, then it is important that the incarcerated have the right to participate while they are behind bars.

 

The movement opposed to granting prisoners voting rights thrived in the tough-on-crime 1980s and 1990s, when mass incarceration was celebrated, encouraged, and institutionalized and states insisted that prisoners had no rights, contrary to the opinions of the Supreme Court. Yet citizens, activists, and legislators today recognize the failure of our political system to challenge the racist, failed, and misguided practice of mass incarceration and harsh prison policies. Granting prisoners the right to vote is one of many corrective measures that must be taken to redress the sins of the American criminal justice system's past and inspire a better future.

 

Yes, some prisoners committed egregious crimes. But they continue to be a part of our democratic society and continue to live as American citizens and we can learn from their perspectives.  Depriving our fellow American citizens of their most fundamental right and continuing to pretend like they are dead or ghosts is dead wrong and irreconcilable with the American promise of universal suffrage.

 

Image courtesy Wikimedia Commons

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