Felons Can Be in the Military, Just Not in the Ballot Box
posted by Scott Moss
From Fox News:
More recruits with criminal records, including felony convictions, are being allowed to join the U.S. Army and Marine Corps, as the armed services cope with a dwindling pool of volunteers during wartime. … The number of felony waivers granted by the Army grew from 411 in 2003 to 901 in 2006.
This seems to be another nail in the coffin of the felon disenfranchisement laws that exist in many states and have been much criticized:
[A]n estimated 3.9 million U.S. citizens are disenfranchised, including over one million who have fully completed their sentences. … The racial impact of disenfranchisement laws is particularly egregious. Thirteen percent of African American men—1.4 million—are disenfranchised, representing just over one-third (36 percent) of the total disenfranchised population. In two states, our data show that almost one in three black men is disenfranchised. In eight states, one in four black men is disenfranchised.
That is: if we trust felons (at least some of them) enough to let them carry guns and have access to our military in the middle of a war, I can’t see an argument that there’s any valid reason to prevent them from voting.
It always has been striking how courts strain to avoid invalidating felon disenfranchisement laws. Though I am not a voting rights expert, to my limited review of the case law, the holdings declaring such laws permissible under the Voting Rights Act seem particularly weak; the Act bans practices that have a disparate impact by race (as disenfranchisement laws do), and some courts seem to have avoided finding a violation by reasoning, “Congress didn’t intend for its ban on racial disparate impacts to invalidate felon disenfranchisement laws” (I’m paraphrasing). The best response I can give is what Justice Scalia wrote in holding same-sex sexual harassment actionable under Title VII of the Civil Rights Act of 1964, a statute that clearly was intended as a ban on race (and to a lesser extent sex) discrimination in hiring by a Congress that surely never considered same-sex issues in employment:
[M]ale-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. (emphasis added)
I can’t do any better than that as a way to explain why the Voting Rights Act’s ban on racial disparate impacts should apply to felon disenfranchisement laws even if that wasn’t what Congress envisioned.
February 14, 2007 at 11:59 am
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Responses (14)
Simon - February 14, 2007 at 12:54 pm
Maybe this is a naive question, since VRA isn’t an area I know a great deal about, but does the disparate impact test really apply when the behavior that triggers disenfrachisement is a wholly discretionary activity (that is, no one has to break the law) voluntarily engaged in (that is, no one forced them to break the law) by the person being disenfranchised? What has the Supreme Court said on the subject – a couple of cursorary searches at Findlaw don’t turn much up.
PatHMV - February 14, 2007 at 5:54 pm
Also, the power to define crimes and the punishments therefore is one of the most basic powers of state governments. I wonder if pushing the VRA in this context would begin to impinge on the states’ prerogatives in this area.
That said, as a policy matter, I don’t think that disenfranchisement should extend past the completion of one’s incarceration, parole, or probation. In Louisiana, the right to vote is restored automatically upon completion of sentence. You even get a nice form letter from the Department of Corrections telling you when your sentence is up.
Howard Wasserman - February 15, 2007 at 7:11 am
The link between the obligation to fight for country and the right to vote always has been critical to the expansion of the franchise. The primary argument behind extending the vote to 18-year-olds during Viet Nam (first in federal legislation, then in the 26th Amendment) was “If we are old enough to fight and die for our country, we are old enough to vote (and to decide who will send us off to fight and die).”
The logic holds, even if the group at issue is not as socially acceptable.
PatHMV - February 15, 2007 at 10:02 am
That’s a political argument, and perhaps a good one, but I don’t think there’s a legal connection between the two.
Sam - February 17, 2007 at 12:15 pm
Another sign of the limitless jargon and rhetoric our politicians use wasting vital resources complicating self evident issues with discourse. Let the felons who serve vote. If they serve in combat let their felony conviction be expunged, or else any dissenters go fight in combat till they stop dissenting.
Simon - February 18, 2007 at 7:23 pm
Sam – doesn’t the idea of a federal statute requiring that states quash the voting disability of ex-cons who serve in the United States military raise some fairly significant federalism issues? Unless federal authority can affect a state legal proceding in some way that raises no Constitutional issue, surely the enacting legislation would have to require that states pass legislation removing the disability, which I would think New York v. United States forecloses?
Scott Moss - February 18, 2007 at 9:05 pm
Simon — Yes, I suppose it could raise “federalism concerns,” but under current law it’d be 100% fine. NY v US and Printz v US forbid the fed gov’t from compelling state officials to undertake some affirmative action — but it’s still good law that the federal gov’t can use its civil rights enforcement powers (14th Amdt sec.5) to bar state laws that have disparate racial impacts (Katzenbach v Morgan, and a whole accompanying line of case law the court hjas never revisited). There may well be some on the court who’d like to reverse that line of case law, but so far they’ve been quiet, lacking anything close to a majority.
Simon - February 19, 2007 at 10:56 am
Scott,
Morgan, as I understand it, didn’t say that laws that might have the unintentional effect of disenfranchising more blacks than whites violated the Equal Protection Clause, only that “it was Congress’ prerogative to weigh the[] competing considerations [involved],” and that it was enough for the Court that they could “perceive a basis upon which Congress might predicate a judgment that the application of New York’s English literacy requirement to deny the right to vote to a person with a sixth grade education in Puerto Rican schools in which the language of instruction was other than English constituted an invidious discrimination in violation of the Equal Protection Clause.” 384 U.S. at 656. There, the court simply deferred (or to put it more critically, abdicated) to Congress’ judgment, rather than deciding the question. (And even if it had chosen to say what the law is, surely it is clearly distinguishable: Morgan dealt with disenfranchisement based on inability to speak English, while at issue here are the consequences of voluntary conduct on the part of the disenfranchised).
But City of Boerne, on the other hand, said that “[t]he design of the [Fourteenth] Amendment and the text of §5 are inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment’s restrictions on the States … Congress does not enforce a constitutional right by changing what the right is. It has been given the power ‘to enforce,’ not the power to determine what constitutes a constitutional violation.” 521 U.S. at 519. That suggests to me that unless the disparate impact test has been given constitutional status in terms of the equal protection clause — and maybe it has, but I don’t know a case that says so — Congress lacks power under § 5 to override state voting requirements laws.
Scott Moss - February 19, 2007 at 11:34 am
You’re correct that mere racial disparate impacts aren’t unconstitutional, but Congress can pass statutes banning racial disparate impacts — that’s the fine line the Court has drawn. In City of Boerne, the Court expressly said that whereas race discrimination was sufficiently pervasive/documented to justify Congress banning disparate impacts in Katzenbach v. Morgan, here religious discrimination has not been so pervasive/documented — so Congress can’t ban religious disparate impacts the same way it has banned racial disparate impacts.
In short, City of Boerne featured all the “pro-10th Amdt” justices signing onto an opinion approvingly citing Katzenbach v. Morgan, the case saying that Congress has the power under section 5 to override state voting requirements laws.
Sylvia A Gibbs - February 22, 2007 at 5:11 pm
If the Congress has the power under section 5 to override state voting requirements laws, they can also require, that during the next census (2010, states be required to count felons at the county of conviction rather than count them as residents of tiny rural communities. Thus transfering power to small legislative districts whose only minority population exist behind prison walls.
This policy redirects much needed funding from larger urban areas where the funding can be used for programs. It dillutes the voting strength of communities. As they begin to lose seats in the house and representation. I encourage you to read ‘prisoners of the census’ to determine the real impact of felon disenfranchisement and it’s evil twin ‘redlining.’
Robert D - April 17, 2007 at 10:27 am
Why would anyone with a felony enlist in the military?
I am a convicted felon with a conviction from over 5 years ago that didnt result in prison time.
Since then I am unable to get a job anywhere in factory or warehouse work.
My wife and I have to lie to get a place to live unless we want to live in a dump. Every temp service and almost all employers want a background check , along with most landords.
Now Most people are wondering about the recidivism rate in this country.
Its very clear: When you are arrested, You have very little opportunity any longer.
I have no want to be arrested again, howver ya have to look at it from the person who has not got a chance any longer:
If you could not provide for yourself or your family Because no one would Hire You, Would you be angry? If A Person needs money and dont stand a chance, They commit another crime.
Its the system this country has created that keeps millions locked up and has a domino effect that the prison system will just keep getting a higher population.
Wake up its not gonna get any better.
I did my time and completed my probation, Now I have a right to get on with my life just like every other citizen.
The only question is: When are you gonna be cuffed?
scott krull - May 3, 2007 at 9:52 pm
arguably, felons in the military is an argument dating back to the colonial days when this country was first founded. Back then, there seemed to be less social dissent within the political world. With an honorable discharge from both the active marine corps. and the national guard; as well as a convicted felon- who has turned his life around and become a productful citizen in the community, would enlist in a heartbeat if given the opportunity once again.
Helen Roach - April 26, 2008 at 2:32 pm
In the state that I live in you can vote after your sentence is finished. Voting isn’t the only issue that ex-felons have. I do believe that everybody should have the right to vote. An ex felon can serve in the military and if we are lucky enough to find a job, we have to pay taxes. So if we can do those things, why are we discriminated against? We can’t get certain grants for school, we can’t live certain places, and the only jobs there seem to be do not pay enough to support a family and pay bills. Not everybody that has been to prison are bad people. There are people out there that work right next to some of you that have done worse things than some of the people that have been to prison, the difference is you do not know about it so you do not judge them. So in that case once we serve out our prison term we should be treated with the same respect as everybody else and given the same opportunities.
welton m. - August 24, 2009 at 7:19 pm
MY coment IS This. I dont think It’s fair.
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