In the overwhelming majority of our states, you lose your right to vote, to one degree or another, if you commit a felony. Brent Staples, the “Editorial Observer” for the New York Times, wrote recently that “legal scholars attribute [felon disenfranchisement] to this country’s difficulties with race.” This summer the Washington Post said these laws “are a vestige of a time when states sought to discourage blacks from voting.” USA Today had earlier editorialized, “Voting bans are rooted in the nation’s racist past.” And recently a Reuters story (corrected after I talked with them) asserted that these laws “have roots in the post-Civil War 19th century and were aimed at preventing black Americans from voting.”
But it is simply not true that the reason felons are disenfranchised in the United States is because of a desire to keep blacks from voting. The reason our bien pensants are making assertions to the contrary is perhaps because they are being misled by the well-funded and ubiquitous felon-reenfranchisement movement. Yet the falsity of these statements can be demonstrated by simply reading the studies published and relied on by the movement itself.
In a joint publication, “Losing the Vote,” the Sentencing Project and the Human Rights Watch have acknowledged that “disenfranchisement in the U.S. is a heritage from ancient Greek and Roman traditions carried into Europe.” In Europe (including England), the civil disabilities attached to conviction for a felony were severe, and “English colonists brought these concepts with them to North America.”
We can continue the historical narrative by consulting another key source for the felon-voting proponents: an article by professors Christopher Uggen and Jeff Manza in the American Sociological Review. It concedes, “Restrictions [on felon voting] were first adopted by some states in the post-Revolutionary era, and by the eve of the Civil War some two dozen states had statutes barring felons from voting or had felon disenfranchisement provisions in their state constitutions.” That means that over 70 percent of the states had these laws by 1861–when most blacks couldn’t vote in any case because they were still enslaved.
It is true that five southern states passed race-targeted felon-disenfranchisement laws in the post-Reconstruction period from 1890 to 1910, according to an article in the Yale Law Journal, another key movement source. But by that time, according to a graphic in the American Sociological Review article, over 80 percent of the states in the U.S. already had felon-disenfranchisement laws. Alexander Keyssar’s book The Right to Vote–cited in the Uggen and Manza piece–says that, outside the south, the disenfranchisement laws “lacked socially distinct targets and generally were passed in a matter-of-fact fashion.”
The five southern state laws that were race-targeted are no longer on the books. Today, most of the old Confederacy allows at least some felons the vote and, conversely, many of the states that disenfranchise all felons are non-southern (for example, Iowa, Nevada, and Wyoming). Indeed, to quote Uggen and Manza, “In general, some type of restriction on felons’ voting rights gradually came to be adopted by almost every state, and at present 48 of the 50 states bar felons–in most cases including those on probation or parole–from voting.”
The reason we don’t let felons vote has nothing to do with race and everything to do with common sense. Individuals who have shown they are unwilling too follow the law cannot claim the right to make laws for the rest of us. We don’t let everyone vote–not children, for instance, or noncitizens, or the mentally incompetent. We have certain minimum standards of trustworthiness before we let people participate in the serious business of self-government, and people who commit serious crimes don’t meet those standards.
It is frequently asserted that felons released from prison should be able to vote because they have “paid their debt to society.” But the felon-vote movement will, if pressed, admit that they think felons in prison should be allowed to vote, too. And society is not obliged to ignore someone’s criminal record just because he has been released from prison. Felons are barred by federal law from possessing firearms, for example.
It is true that some felons–say, someone who wrote a bad check decades ago and has led an exemplary life since then–ought to have their voting rights restored, but these determinations should be made on a case-by-case, not a wholesale, basis. It is also true that these laws have come to have a disproportionate impact on blacks, but this was not deliberate and will cease once a disproportionate number of felonies are no longer committed by blacks.
The irony is that the people whose votes will be diluted the most if felons are reenfranchised are the law-abiding citizens in communities with a high proportion of felons in them. These citizens, who are also most frequently the victims of crime, are of course themselves disproportionately poor and minority. But somehow the bien pensants always forget them.
–Roger Clegg is general counsel of the Center for Equal Opportunity in Sterling, Virginia.