Defensible Disenfranchisement

• Author: Mary Sigler
• Position: Associate Dean of Faculty, Professor of Law, Arizona State University Sandra Day O'Connor College of Law
• Pages: 1725-1744

Defensible Disenfranchisement Mary Sigler  I. INTRODUCTION .................................................................................... 1726 II. TRADITIONAL RATIONALES .................................................................. 1729 A. P URITY OF THE B ALLOT B OX .......................................................... 1730 B. S UBVERSIVE V OTING ....................................................................... 1731 C. E LECTORAL F RAUD ......................................................................... 1732 III. ELECTORAL ELIGIBILITY IN A MODERN LIBERAL DEMOCRACY ............. 1733 A. W ORKING C ONCEPTION OF L IBERAL D EMOCRACY ............................ 1733 1. Rights and Responsibilities .................................................. 1734 2. The Office of Citizen ........................................................... 1734 3. Civic Trust ............................................................................. 1736 4. Reassurance and Reintegration .......................................... 1738 B. D EFENSIBLE D ISENFRANCHISEMENT ................................................. 1740 1. Triggering Offenses ............................................................. 1741 2. Offender Status and Length of Disqualification ................ 1741 3. Restoration............................................................................ 1743 IV. CONCLUSION ....................................................................................... 1744  Associate Dean of Faculty, Professor of Law, Arizona State University Sandra Day O’Connor College of Law. I am grateful to the participants in the 2012 MANCEPT Workshop, Legitimacy, Authority and Political Obligation, and the 2013 Collateral Sanctions Workshop at the Robina Institute at the University of Minnesota Law School. Special thanks to Chris Bennett and Zach Hoskins for helpful feedback along the way. Thanks also to Courtney Burks, Andrew Johnston, and the staff of the Iowa Law Review . 1726 IOWA LAW REVIEW [Vol. 99:1725 I. INTRODUCTION The practice of felon disenfranchisement has a long and sometimes odious history. In the United States, the policy of denying criminal offenders the right to vote was adapted from the English tradition of “attainder,” as well as earlier notions of “outlawry” in continental Europe and infamia in ancient Greece and Rome. 1 In these European contexts, offenders experienced a form of “civil death” that stripped them of their legal status and denied them even the most basic protections of the civil and criminal law. 2 In colonial America, many people were excluded from the franchise as a matter of course, but even otherwise eligible citizens could be barred from voting based on a wide range of legal and moral transgressions. 3 Among the salient features of these historical antecedents is the explicitly punitive nature of the practices and the determination not only to punish transgressors, but also to render them outsiders from the political community. In its modern incarnation, the practice of denying the right to vote to some or all incarcerated felons or ex-felons 4 remains common in the United States and survives in some form in Great Britain, Germany, and a number of other democracies. 5 In the United States, felon disenfranchisement is formally regulatory, not punitive, but features the harshest restrictions on offender voting rights of any modern democracy. 6 As a result, felon disenfranchisement is widely viewed as retrograde, reflecting the worst aspects of our history and our nature. Specifically, because disenfranchisement runs counter to the modern trend of extending voting and other fundamental rights, it is denounced as undemocratic and illiberal. 7 In addition, because it is thought to impede the reintegration of offenders into their communities upon release from prison, 8 it is deemed counterproductive to rehabilitation. Finally, despite its origins in post-Civil War Reconstruction, and motivated in particular by a determination to ensure the enfranchisement of former slaves, modern U.S. 1. See Alec C. Ewald, “Civil Death”: The Ideological Paradox of Criminal Disenfranchisement Law in the United States , 2002 WIS. L. REV. 1045, 1059–60 (describing exclusionary practices in ancient and medieval Europe). 2. Id. 3. Id. at 1061. 4. For ease of discussion, I will refer generally to both types of offender as felons, though I later suggest some distinctions between felons and ex-felons that might be relevant to disenfranchisement policies. 5. See ELIZABETH A. HULL, THE DISENFRANCHISEMENT OF EX-FELONS 12–13 (2006) (comparing U.S. practices to those of countries around the world). 6. See id. at 13. 7. See, e.g. , id. at 9 (describing how state felon voting laws disproportionately take votes away from racial minority groups). 8. See, e.g. , John Kleinig & Kevin Murtagh, Disenfranchising Felons , 22 J. APPLIED PHIL. 217, 230 (2005). 2014] DEFENSIBLE DISENFRANCHISEMENT 1727 disenfranchisement policy is condemned as racist because it disproportionately affects black citizens and communities. 9 Despite the gravity of these claims, the modern disenfranchisement debate is curiously one-sided. Although forty-eight states in the United States retain some form of felon disenfranchisement, the scholarly and popular literature is overwhelmingly hostile to the practice. Indeed, according to one scholar, “[c]ritics of disenfranchisement may feel a bit like a boxer entering the ring only to discover there is no opponent to fight.” 10 Reflecting the prevailing criticism, a recent editorial in the New York Times registers its disapproval, declaring that “[t]he only reason not to let [ex-felons] vote is to stigmatize them or to continue punishing them.” 11 And at least one federal court has expressed “skepticism as to whether any ‘non-racially discriminatory public policy rationales for disenfranchising felons’ actually exist.” 12 Against this tide of opinion, I develop and defend a version of felon disenfranchisement that rejects the punitive conception in favor of a regulatory approach consistent with the values of a modern liberal democracy. I begin by considering some weak, but historically significant, arguments for disenfranchisement that have dominated the scholarly debate. The most common of these—protecting the “purity” of the ballot box, preventing “subversive” voting, and diminishing the likelihood of electoral fraud—have made easy targets for opponents of disenfranchisement and have stacked the deck against the regulatory conception. Unfortunately, the scholarly consensus against disenfranchisement based on these flawed rationales reflects almost no engagement with more plausible alternatives. 13 9. See, e.g. , George P. Fletcher, Disenfranchisement as Punishment: Reflections on the Racial Uses of Infamia, 46 UCLA L. REV. 1895, 1897 (1999). 10. JEFF MANZA & CHRISTOPHER UGGEN, LOCKED OUT: FELON DISENFRANCHISEMENT AND AMERICAN DEMOCRACY 12 (2006). 11. Editorial, Disenfranchised Felons , N.Y. TIMES (July 15, 2012), http://www.nytimes.com/ 2012/07/16/opinion/disenfranchised-felons.html. 12. Pamela S. Karlan, Convictions and Doubts: Retribution, Representation, and the Debate over Felon Disenfranchisement , 56 STAN. L. REV. 1147, 1159 (2004) (quoting Johnson v. Bush, 353 F.3d 1287, 1302 n.16 (11th Cir. 2003)); see also Fletcher, supra note 9, at 1903 (“There are so many constitutional arguments against the disenfranchisement of felons that one can only wonder at the survival of the practice.”). 13. The philosophical literature features a handful of notable exceptions. See, e.g. , Andrew Altman, Democratic Self-Determination and the Disenfranchisement of Felons , 22 J. APPLIED PHIL. 263 (2005); Kleinig & Murtagh, supra note 8; Hugh LaFollette, Collateral Consequences of Punishment: Civil Penalties Accompanying Formal Punishment , 22 J. APPLIED PHIL. 241 (2005); Jeffrey Reiman, Liberal and Republican Arguments Against the Disenfranchisement of Felons , CRIM. JUST. ETHICS, Winter/Spring 2005, at 3. For a thoughtful history of the constitutional issues, see Richard M. Re & Christopher M. Re, Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments , 121 YALE L.J. 1584 (2012). 1728 IOWA LAW REVIEW [Vol. 99:1725 A more promising case for disenfranchisement starts with a familiar account of political community that features liberal and republican elements. I situate defensible disenfranchisement within a liberal democratic context that highlights rights and responsibilities, citizenship and civic trust, and, in cases of breach, reassurance and reintegration. 14 Contrary to the leading scholarly accounts, disenfranchisement is best conceptualized not as a form of punishment but as a means of regulating electoral eligibility in a liberal-democratic polity. On this view, offenders who commit serious felonies are subject to regulatory disenfranchisement because they have violated the civic trust that makes liberal democracy possible. In contrast to more extreme policies, regulatory disenfranchisement is not the “civil death” of an earlier era or a modern mechanism for permanent political exclusion. Instead, defensible disenfranchisement is narrower in scope and application, temporarily denying the vote to only the most serious felony offenders and providing a meaningful opportunity for restoration of the franchise. Far from alienating offenders, as critics charge, the suspension of voting rights is meant to heighten offenders’ sense of civic responsibility by establishing the expectation of restored political participation. Indeed, precisely because the right to vote has high symbolic importance and relatively low practical value, 15 disenfranchisement is ideally suited to mark the breach of civic trust that criminal wrongdoing represents without unduly disrupting an offender’s daily life. In this way, defensible disenfranchisement affirms, rather than betrays, our commitment to...