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Thursday, October 10, 2013

Felon disenfranchisement, political power, and the First Amendment right to vote

Recently, The Atlantic published this piece on the very real impact of felon disenfranchisement and mass incarceration in the United States. This worthwhile read begins:

Download (1)The 14th Amendment, when combined with the War on Crime, has paradoxically disenfranchised vast swaths of the population  and given the rural, white areas surrounding the prisons unforeseen political power.

What has it really cost the United States to build the world’s most massive prison system?

To answer this question, some point to the nearly two million people who are now locked up in an American prison—overwhelmingly this nation’s poorest, most mentally ill, and least-educated citizens—and ponder the moral costs. Others have pointed to the enormous expense of having more than seven million Americans under some form of correctional supervision and argued that the system is not economically sustainable. Still others highlight the high price that our nation’s already most-fragile communities, in particular, have paid for the rise of such an enormous carceral state. A few have also asked Americans to consider what it means for the future of our society that our system of punishment is so deeply racialized.

As I have noted here and here, my research focuses on the vote as protected First Amendment speech. The effect of re-conceptualizing the vote thusly would touch an array of voting issues. But, the effect on felon and ex-felon disenfranchisement would likely have the greatest impact in terms of the size of the electorate.

Put simply, felons do not forfeit all First Amendment protections by virtue of their incarceration. In Turner v. Safely, the Court held that a restriction on prisoners’ First Amendment speech rights must be reasonably related to a valid penological interest. This standard has been used in upholding regulations limiting prisoner-to-prisoner communications, press access to prisoners for interviews, and prisoner access to information through magazines and certain kinds of books. 

However, in Bell v. Wolfish, the Court affirmed prisoners’ First Amendment right to receive “soft-bound books and magazines…from any source and hardback books…from publishers, bookstores, and book clubs.” Importantly, the Court limited prisoners’ right to receive hard cover books from other sources because “hardback books are especially serviceable for smuggling contraband into an institution; money, drugs, and weapons easily may be secreted in the bindings[,]…which are difficult to search effectively.” 

Assuming, for the sake of argument, that the right to vote for state and federal representatives is protected by the First Amendment, continued felon disenfranchisement becomes much more difficult to sustain. As I mentioned yesterday, the government assumed responsibility for printing ballots at the end of the 19th century. The Court’s limitation on prisoners’ receipt of hardback books in Wolfish cannot reasonably be said to apply to state-printed ballots. No principled concern about the smuggling of contraband and weapons can be reasonably maintained. 

Further, this country has a long history of absentee voting. Rhode Island and Massachusetts instituted proxy voting during the pre-Revolutionary period. At the time, the country was principally rural with economies heavily dependent on agriculture. Elections were usually held at the county court house, and thus many people had to travel great distances to cast their votes.

Absentee voting became more widely used during the Civil War when men were dispersed for great periods of time and could not make it back to their localities to vote. Today, all 50 states permit some form of absentee voting (although some states require a statement of need to do so). 

If the right to vote is First Amendment speech, then the burden on prisoners’ speech rights from disenfranchisement would need to be re-examined.

At a minimum, state laws restricting the rights of probationers and parolees would likely be unconstitutional.  Currently, more than 4.5 million ex-felons are on probation or parole. Although not every state disenfranchises this population, the number of people re-enfranchised by such a re-conceptualization would be significant. 

Update: the above image is from a painting by Anthony Papa who wrote this account of his personal experience with disenfranchisement.

 

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Comments

The page refreshed, and all brilliant solutions to improve voter participation were gone.

1) make the vote open all weekend

2) have people vote on the platforms of Amazon and EBay. Send them a check for the current cost running an election with aged clerks moving as if at the bottom of a vat of molasses. They will correctly identify the voter, make sure only one vote is filed, and guide any confused voter in a neutral fashion.

3) Make the voting age 14, the age of adulthood, endorsed by nature and t10,000 years of human history.

The enfranchisement of felons, whose average IQ is85, and who have no morals is a thinly disguised attempt by the Democratic Party to enlarge its rolls of government dependent parasites, to generate more government make work jobs and to plunder all productive citizens. Bad idea.

If you disagree, do a random survey of 100 disenfranchised felons. Ask them whom they would vote for. I predict 90% Democratic.

Posted by: Supremacy Claus | Oct 10, 2013 9:54:53 PM

Andrew. I cannot return. No punkass lawyer is moderating my comments. Ironic, a left wing ideologue like you blogging about the First Amendment and censoring comments.

Posted by: Supremacy Claus | Oct 10, 2013 9:58:03 PM

Andrew: My message of apology disappeared. I am now writing my commens on a word processor and pasting them into the comments.

If you are moderating comments for spam or advertising, fair enough. If you are moderating them for “civility”, that is a lawyer term for “I screw you, but do not get angry.” Problem.

I am interested in this subject, and had a federal suit with many Bill of Rights claims.

I do not use profanity, make time and space specific threats, nor willingly defame anyone. I am blunt about the lawyer profession, but am its greatest friend in the end. As a carrier, you have the immunity of the telephone company carrying a conversation about the plans for a bank robbery. Settled law. Not sure settled: moderation of comments as opposed to blind transmission may give you knowledge of the crime or tort. If your lawyer ever analyzes that question, it would make an interesting separate post.

Not sarcastic. I apologize for what I said. I will try to be novel, and compelling in my future comments since I am very interested in your topic.

Posted by: Supremacy Claus | Oct 13, 2013 2:36:23 PM

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