MICHAEL MUKASEY: WHAT HOLDER IS NOT SAYING ABOUT LETTING FELONS VOTE
http://online.wsj.com/news/articles/SB10001424052702304315004579383002400688612?mod=WSJ_Opinion_LEADTop
There is a worthwhile debate to be had over whether state laws that disenfranchise felons should be changed or even eliminated. There can be an interesting discussion of how the history of such laws affects that debate. But you would not have known that from Eric Holder‘s treatment of the subject in a Feb. 10 speech at the Georgetown Law Center in Washington.
The U.S. attorney general told us that statistics can be read to show that felon disenfranchisement laws actually promote recidivism. He said that such laws, which vary from state to state, are rooted in outdated notions going back to colonial days (when no one did any voting). He said that they were used during Reconstruction intentionally, and have been used since (whether intentionally or not is left hanging in the air) to deny the vote to blacks—who make up a larger percentage of those convicted of felonies than they do of the general population.
The statistical argument derives from a recent study in Florida that showed a lower recidivism rate for felons whose right to vote had been restored than for those whose right hadn’t. However, there is more going on here.
Florida has had, and indeed has broadened, a system that requires felons to go through an application process before their voting rights are restored. Obviously, those who are motivated to navigate such a process self-select as a group less likely to repeat their crimes. Suggesting that the automatic restoration of voting rights to all felons would lower recidivism is rather like suggesting that we can raise the incomes of all college students if we automatically grant them a college degree—because statistics show that people with college degrees have higher incomes than those without them.
The history suggested by the attorney general is just as deeply flawed. A clue to the flaw lies in his failure to call for a federal law barring state felon disenfranchisement statutes. Why would an administration given to bold legislative action at the federal level—given to bold action even without legislation—shrink from calling for such action here?
United States Attorney General Eric Holder Reuters
The omission becomes less curious when one considers that the history of felon disenfranchisement statutes is tied up intimately in constitutional history. Most particularly, it is tied up with the history of what are known as the Reconstruction amendments: the 13th, 14th and 15th Amendments to the Constitution—the very amendments that ended slavery and set out the basic guarantees of equality for all under state law.
Abolitionists, viewed at the time as radicals, embraced what has been called a philosophy of formal equality. They not only insisted on the liberation and enfranchisement of former slaves, but also supported the disenfranchisement of criminals, rebels and other wrongdoers.
In its first section, the 14th Amendment guarantees due process and equal protection to the residents of all states. Yet its second section directs that states which deny the right to vote to any male citizens over the age of 21 will lose electors for president and vice president (in proportion that those denied the right bear to the whole number of such citizens)—except when such denial is “for participation in rebellion, or other crime.”
The Supreme Court has held that this apparent recognition of the legitimacy of felon disenfranchisement in the 14th Amendment insulates the practice against constitutional attack. Even the 13th Amendment, which abolished slavery and involuntary servitude generally, carves out an exception “for crime whereof the party shall have been duly convicted.”
That view, to be sure, has its critics, and their arguments are worth considering. For example, they argue that it is one thing to say that states cannot be denied electors for disenfranchising criminals, and quite another to say that the practice otherwise passes muster.
They note that the 14th Amendment’s accommodation of gender-based voting distinction—using the population of 21-year-old male citizens as the measure—itself has been overtaken by history. Still, a fair reply would be that it took a constitutional amendment, the 19th, to do it.
The historical evidence suggests that even Reconstruction progressives saw the 14th Amendment’s reference to gender as a political necessity and believed that the crime exception was principled. The concern that former slaves would be disenfranchised for trivial offenses was dealt with in the Military Reconstruction Act of 1867, which confined the sanction to felonies—serious crimes.
Rather than deal directly with the evidence, both statistical and historical, Mr. Holder put the issue squarely in terms of race: Because blacks stand convicted of crimes in greater numbers than their proportion of the population would dictate, the effect on them of felon disenfranchisement statutes is disproportionately high; that disproportion is unjust, and the laws should be repealed. The attorney general proposes substituting for current laws and practice what is essentially a transactional standard implicit in the phrase paying one’s debt to society: Once the sentence has been served, the fine paid, it is time to make it—as a cleanup-company slogan says—like it never even happened.
Mr. Holder does not urge that we go as far as the states of Maine and Vermont, which bar disenfranchisement on any basis and thus permit convicts to vote from jail (assuming their residency requirements are otherwise in order). But neither does he display anything but contempt for the notion that there is a moral taint that attaches to a felony conviction—a taint that should require that one at least show some brief period of law-abiding existence before full readmission to the polity.
This failure actually hurts his case, because it invites cynicism about his motives. Thus a report in the Washington Post ended by citing an academic study showing that if disenfranchised felons had voted in the 2000 election, Al Gore would have been president. That may be true, but it probably doesn’t help the attorney general’s argument as much as sticking to the facts might have.
Mr. Mukasey served as U.S. attorney general (2007-09) and as a U.S. district judge for the Southern District of New York (1988-2006).
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