November 20, 2003 - Oregon Daily Emerald

One More Step Toward Universal Suffrage

by David Jagernauth

There was a time in America when only rich white men were allowed to vote. But as history progressed, so did we. Today, every able adult citizen enjoys this most fundamental democratic right with one notable exception: convicted felons.

Due to a patchwork of state disenfranchisement laws, more than 4.2 million Americans -- one in 50 adults -- are denied the right to vote. These people include more than one million who have fully paid their debt to society, yet still face sanction, sometimes for their entire life.

At the turn of the 20th century, criminal disenfranchisement laws -- in conjunction with poll taxes, literacy tests and other structural measures -- were retooled with the intent of denying black men their newly won right to vote.

One hundred years later, black men represent more than one-third of the total disenfranchised population, or 1.4 million people. Sixteen states disenfranchise more than 10 percent of their black citizens, according to a study in the December 2002 issue of the American Sociological Review.

This is no coincidence. The racially disproportionate impact of felon disenfranchisement is the direct result of inequalities within the criminal justice system. With 5 percent of the world's population, the United States holds 25 percent of the world's prisoners. How did this happen in the land of the free?

According to The Economist, the drug war is what happened. Back in the early '70s, America's imprisonment rate was seven times less severe than it is today. In 1980, only 15 per 100,000 adults were incarcerated on drug-related charges. By 1996, that number had mushroomed to 148 per 100,000.

The drug war became a cover for the persecution of blacks. Even though blacks use illegal drugs at approximately the same rate as whites, according to the Department of Justice's own numbers, blacks are admitted to state prisons more than 13 times as often as whites are.  In some states, blacks make up 90 percent of inmates incarcerated on drug charges.

A study in the December 2001 issue of Social Science Quarterly found that the minority population of a state (in terms of percentage) is the primary factor in predicting the severity of that state's felon disenfranchisement laws. A study commissioned by the National Science Foundation found that states with proportionately high numbers of nonwhite prisoners are more likely to disenfranchise convicted felons after incarceration.

These two studies show that the persistence of disenfranchisement is the direct result of modern racism: Those in power can hide behind its race-neutral façade and still inflict harm on black communities.

These laws also have devastating political consequences for Democrats, since both prisoners and minorities tend to vote in Democratic blocs. Were it not for felon disenfranchisement laws, the composition of Congress would tilt dramatically toward the left, according to a study in the December 2002 issue of the American Sociological Review.

We also know that Al Gore would have easily won the presidency in 2000 were it not for Florida's disenfranchisement laws, which are the most severe in the nation. Even a minor drug possession arrest is considered a felony in Florida, and can result in the loss of voting rights for one's entire life, according to Graham Boyd, director of the ACLU Drug Policy Litigation Project.

Voting is a fundamental right in a democracy; therefore, states need to have an extremely compelling justification for eliminating voting rights.

One of the theoretical justifications is based on the idea that criminals have broken the social contract and therefore have sacrificed their right to participate in it. By this argument, criminal disenfranchisement fits comfortably within the concept of liberalism, as defined by civic philosophers like John Locke.

In reality, criminal disenfranchisement violates the primary tenet of liberalism: That you cannot give away your citizenship.  It also fails to meet the liberal standard of proportional punishment for each and every crime.

Felon disenfranchisement fails the proportionality standard in two ways: (1) by applying to all felonies, rather than felonies specifically related to electoral fraud; and (2) by being overly severe, at least in the case of a lifetime loss of voting rights.

Another theoretical justification is based on what is called civic republicanism.  Proponents of this argument say that because felons (like children, the insane and non-citizens) are neither trustworthy nor loyal to the nation, they should also be denied the vote, just as they are denied the right to serve on a jury. Civic republicans argue that anyone convicted of a serious crime has shown himself or herself to be morally inferior, and thus society has an interest in denying them the vote.

We should not forget that an identical argument was used in the past to keep nonwhites, women, the poor and less educated from the polls. Furthermore, voting is about expressing one's opinion, ethical or not, unlike jury duty, which demands objectivity.

The penological justifications are equally dubious. Disenfranchisement can't serve as retribution when punishment is administered without proportionality. The low visibility of disenfranchisement makes it a poor deterrent. And it hinders, rather than helps, an ex-con's rehabilitation and reintegration into society.

In Oregon, felons are only disenfranchised while they are incarcerated. I feel this is a fair compromise, so long as all nonviolent felons have their civil rights automatically restored to them once released from prison.

In the case of violent criminals, I would advocate keeping them disenfranchised while on parole or probation. I feel that the libertarian distinction between nonviolent and violent crime is legitimate insofar as violence is a more serious violation of the social contract and thus should be punished more severely.

States also have a legitimate interest in disenfranchising those convicted of election fraud or serious violations against the state, like treason, perhaps even for life.

Enacting the above policies in every state would remove the disparate racial impact of felon disenfranchisement laws, bringing them in line with the principles of liberalism without endangering the electorate.

Whether by state referendum, congressional injunction or judicial action, we must continue America's historical march forward, ever closer to universal suffrage.