I am a big fan of publications embracing debate.
This past weekend, National Review ran two competing articles, one entitled “What Government Interest Is Served by Disenfranchising Felons?” which suggested that no such interest exists, and the other entitled “There Are Good Reasons for Felons to Lose the Right to Vote,” which explained how such an interest is both present and important.
So whose right and whose wrong? Well, the issue is slightly more nuanced than that, but a fair reading of each article would suggest that the latter article’s views seem more convincing than those of the former.
Prior to breaking down each article, it is important to first understand the issue that these writers are discussing.
According to research conducted by two sociologist professors from the University of Minnesota, and one from the University of Georgia, as of 2016, “an estimated 6.1 million people are disenfranchised due to a felony conviction, a figure that has escalated dramatically in recent decades as the population under criminal justice supervision has increased.”
The professors’ report puts that figure in context by writing that “there were an estimated 1.17 million people disenfranchised in 1976, 3.34 million in 1996, and 5.85 million in 2010.” The current statistic is estimated to represent 1 in every 40 adults.
As the report makes clear under “Table 1 – Summary of State Felony Disenfranchisement Restriction in 2016,” felony disenfranchisement laws can vary drastically across the country depending on what state one is analyzing.
With this sizable portion of our voting age population legally barred from casting a vote in our nation’s elections, it is indeed worth asking whether these disenfranchisement laws enhance the way in which our electorate chooses its representatives or if they wrongly allow our representatives to choose their electorate.
“What Government Interest Is Served by Disenfranchising Felons?”
Written by George Will, this article begins by explaining the plight of a man named Desmond Meade. In addition to being a graduate of Florida International University Law School, Meade is also a convicted felony, who was found guilty of committing “non-violent felonies concerning drugs and other matters during the ten years when he was essentially homeless.”
Will writes that Florida, the state in which Meade is from, has both a “low threshold for felonious acts,” and a “cumbersome, protracted process” whereby felons, depending on the crimes they were convicted of, can attempt to regain their ability to vote.
As Will points out, Meade is also the head of the Florida Rights Restoration Coalition, which successfully placed an initiative on Florida’s upcoming ballot which, if passed by 60% of the eligible voters this coming November, would establish an amendment in Florida to “restore voting rights to Floridians with felony convictions after they fully complete their sentences, including parole or probation.”
This amendment could have wide-reaching consequences, since there are a possible 1.5 million felons who could get their right to vote back if it were to pass. However, the passage of this amendment would not extend to “those convicted of murder or sexual offenses.”
In support of the passage of this amendment, Will points to the disparity between Florida’s overall recidivism rate (roughly 30%) and the recidivism rate for the roughly 2,000 felons whose voting rights were restored under Florida’s “cumbersome” restoration process (0.4%).
From this disparity, Will concludes the following:
“What compelling government interest is served by felon disenfranchisement? Enhanced public safety? How? Is it to fine-tune the quality of the electorate? This is not a legitimate government objective for elected officials to pursue. A felony conviction is an indelible stain: What intelligent purpose is served by reminding felons, who really do not require reminding, of their past, and by advertising it to their community? The rule of law requires punishments, but it is not served by punishments that never end and that perpetuate a social stigma and a sense of never fully re-entering the community.”
He ends his article with several important points regarding the political realities of the situation in Florida. For example, a substantial amount of African-Americans (one in every five African-American adults) are disenfranchised in Florida.
Given the historical voting patterns of both Floridians overall and the African-American community in particular, Republicans in Florida, who, as Will points out, currently control the state’s political positions of power, may have reservations about this initiative that go beyond just the question on the ballot.
Overall, the quotation above seems to summarize Will’s position the best: disenfranchising felons “is not a legitimate government objective for elected officials to pursue.”
“There Are Good Reasons for Felons to Lose the Right to Vote.”
Roger Clegg and Hans von Spakovsky begin their article with a very different position than the one established by Will:
If you’re not willing to follow the law, then you should not have a role in making the law for everyone else, which is what you do when you vote — either directly (in the case of a referendum or ballot initiative) or indirectly (by choosing lawmakers and law enforcers) … [there are] objective standards of responsibility and commitment to our laws that we require people to meet before they are given a role in the solemn enterprise of self-government.
The majority of Clegg and Spakovsky’s article is spent explaining how Will oversimplifies the matter in a number of ways.
For starters, when describing Meade’s situation, Will categorizes felonies which should not eternally disqualify one from regaining the ability to vote as “non-violent felonies concerning drugs.”
However, non-violent felonies can include extremely problematic acts such as “treason and espionage,” and felonies concerning drugs can include the “trafficking in fentanyl-laced heroin and selling it to minors.” So while Will does implicitly concede that certain felonies such as murder and sexual offenses are not redeemable acts, he problematically does not spend enough time applying any additional nuance in answering which acts are truly irredeemable.
Additionally, Will’s belief that it is not a legitimate interest for the government to “fine-tune the quality of the electorate” is both incompatible with our nation’s current constitutional provisions, which permit states to determine nearly everything about the voting procedures for their citizens, and political common sense, which would favor certain restrictions such as those relating to age and citizenship.
It is worth noting that Clegg and Spakovsky do find points of agreement with Will.
They write that they “agree with Mr. Will if he is saying that race and partisanship should both be off the table when considering felon disenfranchisement — and we note that a federal court of appeals ruled 11-1 in 2005 that Florida’s law on the issue (the subject of Will’s column) is not racially motivated.”
And they also agree that re-enfranchisement is an important tool that can be used to help those who have been convicted of a felony reintegrate into society. They simply add further qualifications to this conclusion than Will does in his article.
For example, Will never states when such re-enfranchisement should take place. Should felons be permitted to vote while they are incarcerated, as they are permitted to do in Maine and Vermont?
In contrast, Clegg and Spakovsky outwardly state their interest in having a simplified re-enfranchisement process that varies in its duration of time with respect to “the crime committed, whether there had been previous felonies, how long ago the crime or crimes were committed, and what the felon has done since being released.” Thus, determinations can appropriately be made on a case-by-case basis in conjunction with previous decisions that have impartially been made in the courtroom, such as the length of one’s sentence and the terms of one’s probation.
Whose Right and Whose Wrong?
I find myself agreeing with many of the points raised by Clegg and Spakovsky. The lack of specificity and oversimplification present in Will’s piece is too abundant to accept his position wholesale.
However, Will does raise a legitimate point regarding the need to reform the current way in which we look at the re-enfranchisement process.
Florida’s process in particular is in fact so in need of changes that, according to the Brennen Center for Justice, a federal district court judge in Tallahassee recently ruled that a portion of the process “violates both the First and Fourteenth Amendments of the U.S. Constitution.”
As Clegg and Spakovsky suggest, the solution should be to fix the process rather than providing an automatic restoration of voting rights.
The overall goal should be to incorporate the re-enfranchisement process with the social reintegration process in a way that permits the obtainment of benchmarks involving the latter to contribute to one’s ability to successfully navigate the former. Such benchmarks, as suggested by Clegg and Spakovsky, should appropriately vary in their requirements according to the specific circumstances of each individual.
With respect to the political implications of permitting felons to vote, though it may be impossible given the level of partisan politics present in our culture today, they should largely be ignored given the fundamental importance of the right being debated in this matter.
Overall, forgiveness is an essential quality for a healthy society to have.
Not all individuals who have convicted a felony deserve to eternally lose their ability to vote in our elections. However, the perpetration of certain felonies do merit such a punishment, and a policy that only discounts murder and felonious sexual offenses lacks the nuance required to properly address the scope of conduct that requires a long-lasting prohibitive response.
Thus, while forgiveness may be essential, it should not be unconditional. Discussing, debating, and deciding appropriate conditions, as Florida is currently in the process of doing, is a practice which all states should consider taking part in.