Civil Disagreement: Let prisoners vote?
Posted by Bruce Ramsey
Civil disagreements, with Lynne Varner and Bruce Ramsey of the Seattle Times editorial board, is a weekly feature of the Ed Cetera blog. Here Lynne and Bruce argue about the federal appeals court decision that prisoners in Washington should be allowed to vote.
Bruce Ramsey: Lynne, this ruling of the Ninth Circuit Court of Appeals to let everyone in prison vote—everyone except foreigners, kids and the mentally incompetent—makes no sense. Secretary of State Sam Reed wants to appeal it, and I hope he does. Do we really need to have felons vote—to have their wise and informed input into who serves as governor—even attorney general?
I just can’t get my arms around why this is a good idea. You mentioned that it was an American thing—a thing for all Americans—to be able to vote (even though, most of the time, less than half of us do it). How could such a right be taken away? Well, it is just as much of an American thing to be able to walk down the street, and come and go as we please, and the law takes that away when one of us shoots somebody or kidnaps his children. When you’re in prison you don’t get to walk down the street. You can't even stay up and play cards as late as you want. You’re in prison.
Why should a prisoner be able to vote--and have power over me? I don't want it.
No other appeals court in America has a ruling like this. As the dissenter, Judge Margaret McKeown, said, the ruling "places us in a crowd of one" among the federal circuits. (The Ninth strikes again!)
The two judges who made this ruling, Wallace Tashima and Stephen Reinhardt, argued that the higher percentage of African Americans in prison than of whites is on account of racial discrimination, and that therefore the voting restriction is racially discriminatory to them. But by that logic it is racially discriminatory to deny them the right to sit up all night and play cards--indeed, to put them in prison at all. Either their imprisonment is legitimate or it is not--and if it is, surely the state may take away their vote.
Imagine, if prisoners had the right to vote, politicians might go and make speeches in prisons. Pass out literature in prisons. Solicit campaign contributions in prisons.
Lynne Varner:Bruce, it would be easy to dismiss this ruling as another nonsensical decree from the uber-liberal 9th Circuit. An added reason would be the the basis for the panel's decision, arguments deeply rooted in an understanding of political disenfranchisement and discrimination in the criminal justice system. For those who believe equality was ushered in with anti-lynching laws, this ruling is more than an overreach, it is a slap in the face of what they believe is a trustworthy and colorblind system.
However, let's parse this ruling out. The lawsuit brought by a handful of convicted felons argued that nonwhite citizens make up a large percentage of the prison population. This is true. Minorities are over-represented in the prison system. Not because they commit more crimes - but because they are convicted at a higher rate. Those fare poorly in the criminal justice system tend to be poor or people of color. They tend to be assigned less effective legal counsel and are associated with crimes that carry political pressure for punishment, such as drug possession.
The Department of Justice, under presidents as different as Ronald Reagan and Bill Clinton, has kept track of appalling examples of racial discrimination in the judicial system.
The 9th Circuit isn't giving a thumbs down to punishing felons. I think the justices, and I would agree, believe the punishment must be fair and free of racial bias. The 9th Circuit appears to be saying to the state: address the discrimination in the judicial system - or at least act like you're aware of it - and until you do a law prohibiting inmates and parolees from voting is illegal because it purposely weakens the electoral clout of minorities. If the public could trust the judicial system were fair, they could have trust in punishments like withholding the right to vote. A tangential point: one of the reasons states are moving to suspend or abolish the death penalty is a lack of trust in the veracity of the system that sentences people to death.
A last point: This business of revoking voting privileges should be rethought. It is a punishment with little connection to the crime or to decreasing recidivism rates. As you pointed out, those who legally can barely vote, so a felon is not going to avoid committing a crime just to hold on to his voting rights.
Moreover, the 14th Amendment of the U.S. Constitution warns against making or enforcing laws that abridge the privileges of citizenship. Yes, I know framers made an exception for those convicted of rebellion and "other crimes" but if faced with a system in which the majority of people tried for rebellion were Catholic or gay or black, I think those fine gentlemen would hasten to stress the distinction between punishment by withholding something of value, i.e. the right to vote and adding insult to the injuries caused by a discriminatory system.
What's next is likely a request for an en banc ruling. In addition: the U.S. Supreme Court, which passed up this case five years ago, may be asked again to hear it.
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