Fixing Democracy

Wednesday, April 13, 2005

Fixing Democracy

The en banc 11th Circuit (the same folks who murdered Terri Schiavo) issued an extremely important decision today. Overturning a split decision by a three-judge panel, the full court held that Florida's lifetime disqualification of people with felony convictions from voting doesn't violate either the Equal Protection Clause of the 14th Amendment or Section 2 of the Voting Rights Act of 1965. Though the Supreme Court surprised some observers earlier this year by declining to hear a case on this subject, I think it's generally accepted that the High Court will eventually--and before too long--have to tackle it.

I won't opine here on whether, as a legal matter, the 11th Circuit got it right. I am generally very much against courts' overturning laws passed by legislatures (or, in this case, a state constitutional provision). As some well-respected constitutional-law theorists, most notably John Hart Ely, have argued, there is a persuasive case that voting rights decisions should be an exception in which courts should take a more active role. The idea is that courts can't defer to democratic decision-making when the question is whether the process is actually democratic to begin with; to put it another way, you can't tell the plaintiffs to protect their interests through the democratic process when they're not allowed to participate in it. Apart from that, there are some tricky wrinkles in the felon voting rights area, including the fact that Section 2 of the 14th Amendment permits the states to exclude felons from voting--but the history of the amendment, plus the subsequent enactment of the 15th Amendment, suggest that where felon disenfranchisement is racially motivated, it's unconstitutional. So, as I said, no opinion here on what the legally correct answer is.

As a policy matter, though, I think this one is easy. Adult citizens should be allowed to vote. I think this is true as a matter of principle, but I recognize that, in the abstract, there are coherent arguments to the contrary. (See this interesting debate among law professors, voting-rights advocates, and other knowledgeable folks, heavily featuring Professor Volokh of the popular Volokh Conspiracy blog, for examples).

But even if felon disenfranchisement would be permissible in a hypothetical ideal state, that's not where we live. The signal fact is that these laws have a vastly, vastly, vastly greater effect on black voters than on whites.
Jessie Allen, lead attorney for the ex-offenders, in five [!] black men in Florida are affected by the law. A total of 600,000 people in Florida are banned; 167,000 are blacks, she said.
This has a tremendously distorting effect on the functioning of our democracy. That would be at least troubling even if one could argue that it's black people's own fault if they choose to commit felonies. But that argument doesn't work: the folks who study the relevant data report that black people who do commit felonies are more likely to end up with a felony conviction than white people who do the same thing. This doesn't have to be the result of intentional racism by police, prosecutors, judges, or juries, and there are a number of explanations for why, at all of the various stages in the process, blacks get the shaft even if no one is trying to shaft them. But there is a huge problem with a system that disenfranchises black people for conduct that doesn't cost white people their right to vote.

This was perhaps most stark in the 2000 presidential election. As it happened, Florida was so close that Bush almost surely would have lost if Katherine Harris and other election officials not erroneously excluded black folks who had not committed felonies. But if Florida didn't have a lifetime ban on voting by people with felony convictions, Bush very surely would have lost by a decisive margin.

Tough, say conservatives who think people forfeit their right to vote when they break the law. OK; but then isn't it quite an irony that because these felons--many of whom were convicted of drug offenses--couldn't vote, a man who very likely used illegal drugs himself won the Presidency? (Not to mention Dubya's DWI problem, or the evidence that he failed to comply with the law in respect of his National Guard duties). Professor Volokh, on the thread linked to above, makes an interesting argument about why felons could be prevented from voting even if they were allowed to run for office, but I think most people would find it a bit problematic that by virtue of the way law enforcement works in this country, Dubya got a free pass for his youthful indiscretions, while others who did the same (or less) were permanently shut out of our democracy.

This issue is bigger than one election or even one President. It's about the legitimacy of our democracy. It's about the right of citizens to have a say in who will represent them. It's about a legacy of using criminal law to enforce white supremacy, and a contemporary reality in which the law is not applied equally for whatever reason.

P.S. So far as I know, Rush Limbaugh is still a Florida voter; his drug problem did not lead to a criminal conviction even though it's undeniable that he broke the law. I'm not saying that Limbaugh should have been charged. There are reasons why a prosecutor might properly decide not to bring a particular case even if it's apparent that the person is guilty. This is just by way of example that there's not a straight line between committing a crime and getting convicted; decisions about whether to arrest, whether to charge, whether to accept a misdemeanor plea, etc., etc., etc. have a huge effect on which suspected malfeasors get convicted. They shouldn't affect whether one person has the right to vote and another does not.

Clarification. I haven't followed the Limbaugh case much, and I just assumed he hadn't been charged given his return to public life. The assumption was right--he hasn't been charged--but also misleading. So far as I can tell, the local prosecutor wants to charge him, but the process is on hold while Limbaugh appeals to the Florida Supreme Court to prohibit the prosecutor from using medical records that Limbaugh claims were illegally seized. This issue is important in its own right, and the ACLU, among others, has supported Limbaugh in court. But as far as the issue in this post is concerned, the fact is that Limbaugh is still a Florida voter but is also still in jeopardy of not being one any longer.

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