For whatever reason I couldn’t open, “The Case Against Felon Voting,” by Clegg, Conway, and Lee, so instead I read, “The Bullet and the Ballot? The Case for Felon Disenfranchisement Statutes,” by the same authors. I assume because it is the same topic, written by the same authors, arguing the same position, that they use many of the same arguments.
Okay. So after listening to the Talking Justice debate and reading both the pros and cons, I come down (perhaps not unsurprisingly) on the side of providing voting rights to felons. I am reminded of a quote I came across in my readings on undocumented immigrants, which paraphrased essentially said that in preventing undocumented immigrants from participating in the debate on immigration — a debate that directly affects them — we are preventing democracy.
I feel the same about this situation. The primary arguments of those who are proponents of felon disenfranchisement appear to come down to these beliefs:
- It is constitutional to deny voting rights to felons
- They did the crime, so they deserve to lose their ability to participate in a democratic society.
It was also constitutional to deny voting rights to people of color, women, and those who didn’t own land. Things change. Just because something was constitutional in 1787 does not mean it should remain constitutional some 230 years later. The United States Constitution is a living document, which has been and must continue to be reinterpreted in light of the changing demands of humanitarian understandings of what constitutes a democratic society.
In 1787, the working poor, women, people of color, and felons were considered so subhuman that they could not participate in a basic democratic process. Today, the three of those four populations are nominally considered acceptable to participate in the democratic process — but disenfranchisement laws aimed at felon (and immigrant) communities continue to enforce a policy that protects the voting rights of the wealthy and white, while overwhelming silencing the voices of those who are considered by too many to be nonproductive members of society — the working poor, undocumented immigrants, and felons.
Voting is a right. In the Declaration of Independence, the founding fathers say that all men (which today is understood in the colloquial sense of all human beings) are endowed with certain unalienable (or incontrovertible) rights. We are all familiar with the bit where named as among these rights are listed the right to Life, Liberty, and the Pursuit of Happiness. Most people seem to forget the next bit, where the framers explicitly say, “that to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.“
I know the Declaration of Independence is not a legal document. It is essentially an angry break-up letter to England — but it is an historic document which outlines the core values of the founding of the United States of America. It is a document we continue to refer to as a nation when we assert our national character as a democratic country. And “the governed” in our country, like it or not, include thousands of disenfranchised voters who are excluded from providing consent to the “just” powers of the government that determines their rights and freedoms.
How can we say that the government and the laws which affect felons (and, for that matter, undocumented immigrants) are just and fair, when those very populations have not been given a voice in the creation and passage of those laws, even though their lives are shaped and silenced by them?
In the Talking Justice debate, an audience member said he thought such disenfranchisement laws are essentially classist, and a better solution would be to allow the sentencing judge discretion regarding adding or removing this right at the time of sentencing. He asked Ron Godbey’s thoughts on that solution.
Godbey completely ignored the suggestion of classism, and although he acknowledged that it might be preferable for a judge to have discretion in sentencing when it comes to voting disenfranchisement, he noted that judges do always inform the accused of the rights they will lose. Godbey did not seem aware that there’s a pretty key difference between a judge having the discretion to remove such rights, and having to inform someone their rights will be revoked. There is a difference. In the former circumstance, the judge is relied upon as a legal expert and the arbitrator of the law to determine the best course of action regarding the specific situation at hand. In the latter situation, the judge is compelled by law to enact a mandatory removal of a civil right on which the crime in question may have absolutely no relationship to.
Importantly, as I noted earlier, Godbey did not even address the classim portion of the comment — yet he repeatedly references his opinion that felons, by dint of committing a crime, recuse themselves from the democratic process. On page 4 of The Ballot and the Bullet, a similar argument is made, as the authors say,
“Finally, Section IV discusses the policy rationales for such laws: society deems felons to be less trustworthy than non-felon citizens, and those who cannot follow the law should not participate in the passing of laws that govern law-abiding citizens …” (emphasis mine)
Yet many people who cannot follow the law are allowed to participate in the passage of laws which govern law-abiding citizens. We see this every day. Corporations add clauses to their contracts that essentially protects them from consumer utilizing consumer protection laws by forcing arbitration instead of allowing individual or class-action lawsuits if the corporation endangers/ defrauds the consumer or otherwise breaks the law. Wealthy bankers, lobbyists, and Wall Street employees utilize loopholes in oversight requirements or tax code so they can follow the letter of the law while breaking the spirit of it. Others simply outright break the law, trusting in their wealth and privilege to protect them — and most do not end up like Bernie Madoff for their crimes, but instead continue to collect fat bonuses and influence the political process to their benefit.
Speaking of Bernie Madoff, Alexander noted in chapter 6 of The New Jim Crow that part of this new system of racialized control relies on the notion of black exceptionalism. Alexander argues long as people like President Obama and Oprah Winfrey exist, our society can continue to ignore the discomfiting evidence of racialized oppression inherent in the current criminal system. The success of President Obama and Oprah Winfrey supports the myth of meritocracy. Black exceptionalism, argues Alexander, undermines widespread recognition that social structures create racially biased and widespread disparate impact that perpetuates a systemic inhibition of the agency of people of color in poor communities to overcome the circumstances of their birth and education.
I would take that argument and repurpose it slightly to apply to systems of class control. So long as the occasional widely-publicized Bernie Madoff or Martha Stewart ends up in the news for financial crimes, the working class of America continues to toil on, assured that the wealthy are held responsible for their crimes just as the working class are.
In reality, the disparate responses to the criminal element of the American wealthy and the American poor is appalling, and I think that if felon disenfranchisement was applied as evenly to the wealthy movers and shakers of society who commit crimes as it is applied to criminal element drawn from the poor and working class, we would see a much different argument playing out.
In short, felony disenfranchisement is yet another system of racial and class control. Those who are unable to vote are overwhelmingly and disproportionately from poor communities and communities of color. Those who reserve the right to vote are overwhelmingly from white and affluent communities. A small, wealthy, white minority is dictating the rights and legislation which negatively impact the rights and movements of a much larger, poorer, and diverse majority.
Huh, I guess that is just like the original constitution.