The Vote From Cellblock B

The re-enfranchisement of “felons”* after they’ve paid their debt to society has, finally, come to be recognized as a pointless and unjustifiable deprivation of a fundamental right. State are starting to recognize that the restoration of voting rights after the completion of a sentence is the correct policy and in furtherance of the Constitution, even if the same principle has yet to filter through to other constitutional rights, such as the Second Amendment and Sex Offender Registries.

But even if inconsistent and hypocritical, at least re-enfranchisement is the right thing to do. Is it enough, though? Jamelle Bouie argues it is not, and takes it the next step.

But the growing tide against felon disenfranchisement raises a related question: Why disenfranchise felons at all? Why not let prisoners vote — and give the franchise to the roughly 1.5 million people sitting in federal and state prisons? Why must supposedly universal adult suffrage exclude people convicted of crimes?

Rhetorical questions are the arguments of the insipid. Why? “Why not,” as every armchair philosopher knowingly responds.

There is precedent for this idea. California allows voting for those in county jails (with limited exceptions). Colorado does too. New York recently allowed those on parole or probation to vote. And two states, Maine and Vermont, already let prisoners vote.

Precedent is no more an argument than rhetorical questions. It does serve to challenge those whose best retort is “this isn’t how it’s done,” but that too isn’t an argument. If Bouie hopes to make his case, he needs to confront the rationale for the denial of prison voting. The first step is to face the argument.

We ought to have that conversation now. Americans may see it as common sense that you lose your right to vote when you’re imprisoned, but in many democracies prisoners retain the right to vote. When that right is revoked, it’s only for particular crimes (in Germany, it’s for “targeting” the “democratic order”), and often there is a good deal of judicial discretion. Mandatory disenfranchisement is unusual, and permanent disenfranchisement is even rarer.

While it’s true, in certain quarters, that “Americans may see it as common sense,” that’s no argument for anything, any more than people in other countries make different choices than we do. They don’t have a First Amendment either. Was that what he’s aiming for? Wait, that may be a bad example.

Mandatory disenfranchisement is constitutional — the 14th Amendment allows the government to restrict the right to vote because of “participation in rebellion, or other crime” — but there are few good reasons for the practice. The best argument, outside of the case from custom and tradition, is that committing a serious crime voids your right to have a say in the political process. You lose your liberty — your place in civil society — and the freedoms that come with it.

For the “best argument,” that’s no argument at all. It’s purely conclusory. Is that really the best the opposition has? Well, not quite.

Here’s the answer: 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).

Perhaps a different, and more useful, way of expressing this is that people who are willing to violate the law for their self-interest would use their franchise to put officials in elected positions who would further their unsavory interests at the expense of the general welfare.

But if they’re citizens, and otherwise possessed of constitutional rights despite their conviction, who are we to tinker with their voting choices?

[George Will] says that it “is not a legitimate government objective for elected officials” to “fine-tune the quality of the electorate.” Really? That would mean that not only criminals but also children, non-citizens, and the mentally incompetent must be allowed to vote. In fact, we do have certain minimum, 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.

Children are citizens. Non-citizens, even undocumented immigrants, pay taxes. Yet, we deny them the franchise. What makes people who put their self-interest ahead of the welfare and safety of others more deserving then law-abiding immigrants** who contribute positively to society for decades, but lack a piece of paper?

It’s not that Bouie’s ultimate conclusion, that even people in prison should retain the right to vote just as they retain many other constitutional rights. is necessarily wrong, but that he gets New York Times real estate to pander to confirmation bias by beating up a half-baked strawman argument.

If he doesn’t believe his contention is capable of overcoming the real arguments in opposition, such that he’s left to deceive readers with his “best argument” sham, then he’s shooting blanks and relying on readers never bothering to either learn the actual arguments or think for themselves. This is no way to argue policy, and yet it’s the way policy is now argued on the biggest soapbox we have.

*I put felons in scare quotes because it’s a scary word that misstates both the nature of criminal convictions and the universe of people involved. In some states, disenfranchisement covers anyone convicted of a crime, felon or misdemeanant. Even as to “felons,” some are convicted of murder and some are convicted of a trivial offense, but after two prior misdemeanors, thus enhancing the level of offense. In other words, the word “felon” is scary, but the people carrying the epithet aren’t necessarily.

**For the sake of argument, let’s limit this to people who committed no crime by illegally crossing the border, but, say, overstayed a visa.

The Vote From Cellblock B curated from Simple Justice