Ethan Kessler: Expand the franchise

Saturday, May 26, 2018 - 10:49am

As spring gives way to summer, first-round campaigning has given way to primary elections, which will soon give way to final elections in November.  Significantly low levels of voter turnout in midterm elections and among the American electorate in general mean every vote will count.  

Over 6 million Americans, however, are likely to be excluded from this influential swath of voters because of felony convictions, with many states offering felons little chance to actually regain the right to vote after imprisonment.  This exclusion occurs across a surprising majority of U.S. states, signaling a consensus that has impinged on American democracy for long enough.  It is time to categorically restore the right to vote among felons who have served their time.

Denying ex-felons the right to vote may seem like a reasonable measure, but at its core, it is nothing less than an assault on the backbone of democracy.  The practice most notably came into prominence in the South following Reconstruction.  During this time, Southern states, eager to return their legislatures to a state of white dominance, set about finding ways to eliminate African-American votes.  Felon disenfranchisement statutes succeeded at reducing African-American voter registration relative to white voter registration in the South, taking advantage of higher conviction rates among African-American people for many crimes.  Beyond its role in subjugating African-American people to the laws of Jim Crow for most of the 20th century, felon disenfranchisement has damaged America’s democratic foundation by denying many citizens a voice in choosing our leaders.

In 2018, generations after voting discrimination by race and by gender have been defeated, it is easy to take suffrage for granted.  As citizens, however, we must not forget that voting is the preeminent method by which citizenship is exercised.  Without suffrage, the power of the people to choose their leaders – the very dynamic that underpins representative democracy – ceases to exist.  

It follows that the extension of suffrage to more citizens serves to better the government’s representation of the people, preserving the essence of representative rule.  We do not vote because we are citizens; we are citizens because we can vote.

As long as this system of government for and by the people rests on the right to vote, voting must be upheld as a fundamental right.  That is why voting, though not explicitly mentioned in the Bill of Rights, is constitutionally protected.  It is also why restrictions on who can vote have recently been narrowed to exclude only those incapable of full legal capacity – that is, minors, convicted criminals and the mentally incapacitated.  

The continued application of voting restrictions to former convicts, however, invokes a moral argument contradictory to this established reverence for voting.  Allowing states to bar ex-felons from voting because those unwilling to follow the law shouldn’t make the law, fails to establish a strong relationship between a legitimate state interest and the disenfranchisement of a narrowly tailored group.

This failure becomes apparent when inspecting the relationship between, say, the legitimate state interest of reducing violent criminal activity and the commonplace restriction on firearm ownership by ex-felons.  Convicted violent criminals are more inclined to use weapons for criminal purposes in the future, so in this case, they must yield their Second Amendment protections to the valid state interest of the public’s physical safety. However, no similar rationale exists between voting disenfranchisement of ex-felons and the sacred right to vote.

This is not to say that other exclusions from voting-rights protection are invalid.  Minors and the mentally incapacitated are also excluded from these protections, just as they are unable to independently sue or enter into contracts, because they are considered to lack the requisite mental capacity.  Such voting restrictions meet the strict criteria for encroachment on fundamental rights, because they exclude a particular group based on their incapacity to comprehend their own best interests.  Acting in the name of self-interest, after all, is central to the voting process.

In contrast, while it may be tempting to use the moral failures of ex-felons to justify a reduction in their public participation, their classification as a group is not based on a question of mental capacity.  Their disenfranchisement is therefore incongruent with the other provisions Congress has made for restrictions on suffrage.

There are recognized state interests served by the imprisonment of felons.  It is punitive. It restricts ex-felons’ autonomy and protects society.  Additionally, it deters criminal action by would-be felons. These justifications, however, only hold up as long as a felon is still serving their sentence.  After release from prison and completion of parole, a felon has fulfilled the punishment deemed proportionate to their crime, and the need to protect others from their behavior has accordingly been reduced or eliminated.  At this point, any semblance of legitimate state interest is outweighed by the demonstrated need to extend and preserve suffrage.

The right to vote has not always been received as sacred throughout America’s long history, just as “We the People” has not always included all peoples.  Bitter struggles to extend the franchise to all qualified Americans shows the power of voting and the justice achieved when more citizens are able to take part in selecting their representatives.  

The last episode in this long crusade is the holdover of felon disenfranchisement from an era of unscrupulous political motivations and severely entrenched inequality.  Disenfranchisement of ex-felons has proved damaging to the ideals of American democracy, carving out exceptions to the electorate without adequate justification.

 

Voting is a right that must be afforded the protections provided to other crucial institutions, such as speech and privacy. Allowing states to nullify the natural-born right to vote for millions of Americans beyond repayment of their debts to society neither meets the standards for disenfranchisement nor serves the legitimate interests of the public.  As such, it is time to amend suffrage to include all capable citizens, regardless of past criminal convictions.