Felons & Voting
In 2016 Virginia Governor Terry McAuliffe endeavored to restore felons’ voting rights in his state. In the United States, disenfranchising citizens for felony convictions is a common practice and some states extend the disenfranchisement beyond the felon’s criminal sentence. Since McAuliffe is a Democratic, the Republicans have accused him of engaging in a political move. The gist of the charge is that since felons are disproportionately minorities and minorities tend to vote for Democrats, McAuliffe is trying to get votes for Hillary Clinton. Naturally, he denies this and claims that his motives are pure and noble. Before proceeding to this matter, I will start by addressing the general issue of denying felons the right to vote.
Since I am registered as a Democrat (because Florida is a closed primary state), I might be accused of the same motive as McAuliffe—that I just want felons to vote because they are more likely to vote for Democrats. However, my motive is irrelevant to my arguments, which are as follows.
In the United States, the disenfranchisement of citizens has a constitutional basis in that it is allowed “for participation in rebellion, or other crime.” That is not in dispute. Also, legality is obviously simply set by the law—but my concern is with the morality of disenfranchising felons and not with what is in the rulebook. After all, history is replete with wicked laws.
In a state that professes to be a democracy, the right of citizens to vote is the bedrock right. As Locke and other philosophers have argued, the foundation of political legitimacy in a democracy is the consent of the governed. As such, to unjustly deny a citizen the right to vote is to attack the foundation of democracy and to erode the legitimacy of the state. Because of this, the only crimes that should disenfranchise are those that would warrant taking away the person’s citizenship. In general, the crime would need to be such that it constitutes a rejection of citizenship. The most obvious example would be treason against the country.
It might be objected that felony level crimes are so bad that they all warrant disenfranchising a citizen. One obvious reply is that the right to vote in the United States is not predicated on being virtuous or even marginally informed or marginally competent. The only requirements are being a certain age and being a citizen. Now, if there were morality or competency tests for having the right to vote (which would be exceptionally problematic in their own right), then a case could be made that felons would fail such tests and thus justly denied this right. However, the right to vote comes with being a citizen and what does not remove citizenship should not take away the right to vote.
A second obvious reply is that while there are truly awful felonies that might seem to warrant disenfranchisement (like committing mass murder), there is a multitude of felonies that do not seem even remotely severe enough to warrant such punishment. After all, the bar for what counts as a felony is often very low indeed. As such, there seems to be no justification for disenfranchising felons for crimes that are not directly relevant to their status as citizens.
Even if disenfranchisement for felonies was justified, some US states extend this beyond the person’s criminal sentence. That is, even after serving their time, some felons are not permitted to vote (although some states permit people to attempt to regain this right). This practice is unjust on the face of it. After all, if the disenfranchisement is part of the punishment for a felony, then the punishment should end when the person has served their sentence. As such, even if voting rights could be justly taken away, their restoration should be automatic upon completion of the sentence. I now turn to the Virginia case.
Not surprisingly, the origin story of disenfranchising felons in Virginia is a tale of explicit racism: the white Democrats of that time explicitly used this a tool to keep black voters from the polls. The tools employed to suppress the black vote also impacted poor white voters, but this was regarded as either an acceptable price to pay or actually a desirable result. Lest anyone rush to take this as evidence of racism on the part of the current Democratic Party; one should consider the history of the Southern Strategy. That said, it is true that the Democrats were once the explicitly racist party and true that the Republican Party was once truly the party of Lincoln. It is also true that I used to routinely run sub 17 minute 5Ks; but that was then and this is now.
Of course, to take the origin of a thing to discredit the thing would be to fall victim to the genetic fallacy. As such, while felony disenfranchisement was explicitly created to disenfranchise black voters, perhaps it serves a legitimate purpose today. While I am certainly open to arguments in favor of disenfranchising people, I am not aware of any compelling moral arguments in its favor. Not surprisingly, the main focus of the debate in Virginia is not over the rightness or wrongness of this disenfranchisement but on the alleged motives of the governor.
As his Republican critics see it, Governor McAuliffe’s efforts to restore the voting rights of felons is motivated by politics. Minorities make up a disproportionate number of convicted felons and minorities tend to vote for Democrats. As such, the charge is that he is trying to help Hillary Clinton and other Democrats win in the 2016 elections by enfranchising more Democrats. In terms of the actual facts, felons are generally more likely to be Democrats, but they also tend to vote at an extremely low rate when their voting rights are restored. As such, the impact of restoring voting rights on an election is in dispute; although Republicans often express terror at the prospect of felons illegally voting.
Assuming that felons are more likely to vote for Democrats, it certainly makes political sense for Republicans to oppose restoring voting rights to felons. However, this is obviously also motivated by politics and thus puts the Republicans on par with the governor. They cannot justly regard him as being wrong in wanting to restore voting rights to gain an electoral advantage when they want to deny these rights to gain their own advantage. From a moral standpoint what is needed is not accusations about motives but actual arguments for or against restoring voting rights.
It might be claimed that motivations do matter. It is true that they do—but they matter in terms of assessing the morality of the person taking an action, not in terms of the morality of the action itself or its consequences. To use a non-political example, if I give money to a flood relief charity in Louisiana only because I want to impress a woman with my alleged generosity and compassion, then my motivation is hardly laudable. However, this does not have any relevance to the issue of whether or not giving to such a charity is the right thing to do or the issue of whether or not it would have good consequences. Those are distinct issues. Returning to the case of restoring voting rights, it could be true that the governor’s real motivation is to advance the interests of his party. It could be true that if he believed felons would be more likely to vote Republican, then he would oppose restoring their right to vote. While his motivations matter when it comes to assessing him morally, they have no bearing on the issue of whether these rights should be restored. Likewise, it could be true that the Republicans oppose the restoration because they believe the felons will tend to vote for Democrats rather than Republicans. It could even be true that they would fight tooth and nail to restore felon voting rights if they believed that felons would be more likely to vote Republican. Their motivations are relevant to judging them as people; but irrelevant to the issue of whether or not voting rights should be restored.
I do believe that the disenfranchisement of felons is a political tool that is now intended to help Republican candidates. It is but one disenfranchisement tool among the many that are undermining the legitimacy of the United States. As noted above, I also contend that the theft of a citizens voting rights for anything short of a crime on par with treason is morally unjustified and an attack of the very foundation of democracy. Those who believe in democracy and not simply in having their side in power should also oppose disenfranchising felons in particular and the calculated destruction of voting rights in general. At this point I will close by saying that I believe that serious questions can be raised about the legitimacy of a government based on an electoral system that is damaged by systematic disenfranchisement. While I rarely agree with Trump, he is right to claim that the system is broken and needs to be fixed.
A Philosopher's Blog 
Because we all want rapists, robbers, and murderers voting?
Of course. Which side do you think they’ll vote for, the law-and-order extremists or the thinking party, the reality-based community, the one who performs and funds the researching that indicates that harsh punishments serve to make a criminal population even more criminal? Hopefully this will lead to more policies that allow felons to renter society.
It’s a good thing voting never changes anything.
Wonderful post Mike. We do have a preference in the US of punishment of felons long after they have served their sentence. Part of this comes from the US punishment ideal of retribution, we heavily buy into the idea of harsh punishments as a method of giving bad people what is coming to them (often called just deserts). Sadly, what the research indicates is that this type of punishment primarily serves to make a criminal population even more criminal and aids in the overburdening of our already overloaded justice system.
This feeds heavily into what criminologists call labeling theory. The formal criminal justice process has even been called a status degradation ceremony, where the defendant’s identity is lowered from citizen to criminal in a very visceral and demeaning way. Further, when someone is found guilty and sentenced, we officially affix to them the label of criminal, less than, and other. This label is degrading and lasting, it is an unending punishment that follows that person throughout the remainder of their life.
After the person has served their time in prison, they are released back into society with the idea that they have learned their lesson, can re-enter into society, and be a prosocial citizen. Unfortunately, punishment does not end with the prison sentence, once the felon is released, their record and label follow them. They are treated differently based on that label, they miss out on jobs, housing, education, aid, civic engagement, etc.
These individuals are constantly reminded of what they did and are treated like criminals. They are expected to lie, cheat, steal, be a liability, and generally be “criminal”, even if they are actively trying to become prosocial. Eventually, they are more likely to turn back to crime. Our recidivism numbers support this, a significant portion of felons released from prison are likely to re-offend within several years. We essentially send our released felons down the path of failure and get angry at them when they re-offend.
Hopefully, legislation like this is the first step to more successful reentry policies for felons that can eventually lower our abysmal recidivism rates.
I don’t think that the political motivation is something that can be taken as lightly as you propose. There is one possible scenario you neglect to address – what if McAuliffe is fundamentally opposed to felon voting rights, but is compromising his own beliefs for “the good of the party”? Wouldn’t that be the same as a politician selling out to big donors, super PACs, or corporate interests (also a member of the set of the “governed, by the way) for his own political gain? I guess a big question would be “How do the people of Virginia feel about this?” Ultimately he is supposed to represent them, not his party. And if his political motivations run counter to the will of the people of his state, yet he is willing and able to push a law like this through with the same kind of arm-twisting that got Obamacare passed, well, in what way is that Democracy?
That actually brings up another point, which may be more salient.
Your post is fairly timely for me. I have been thinking of this very thing with regard to Bill Clinton’s defense of the Clinton Foundation amid criticism and accusations of corruption by the Republicans. His response was something like, “If there is something wrong with creating jobs and saving lives, I don’t know what it is,”
In that statement, he is saying that the end definitely justifies the means. The obvious second, unsaid sentence is, “If the result creates jobs and saves lives, it’s fine to do whatever is necessary to achieve that goal – even if it means selling access to high powered political figures to influence national policy, or compromising national security”
McAuliffe is saying the same thing. “If there is something wrong with restoring the constitutional rights to American citizens who have paid their dues, I don’t know what that is” (and the second sentence …) “if the result restores the voting rights, it doesn’t matter if I compromise the principles under which I was elected, or if I ignore the will of the people of my state and bow to pressure from my political party, or if I place the needs of my party above my own moral and ethical obligations as governor, in exchange for some future state funding or political favor if I can deliver my state to the Democrats”.
Following that same line of logic, we all would like to end the threat of terrorism in this country. “If there is something wrong with eliminating terrorist acts, the heinous destruction of life, limb and property, I don’t know what that is” (and the second sentence) “Even if it means banning all Muslim immigration until we figure out how to deal with it”.
In response to Marie’s comments, I would offer that a jail sentence is only part of the punishment of the crime. To say that once a person is released from prison they have paid their debt is not entirely correct. They have paid part of their debt.
Another fundamental, Constitutionally guaranteed right given to all Americans is the right to bear arms, yet convicted felons forfeit that right also. If the argument would hold for restoring voting rights after release, shouldn’t the right to possess firearms also be restored? Probation and rehabilitation after release are frequently a part of the entire sentence, as well as the forfeiture of the ability to serve on some political bodies.
An analogy might be that of a serious traffic violation. You can go to court and pay your fine, but the fine may not be the only part of the sentence. You may have to forfeit your license for a time, you might have to attend traffic school, you may be forbidden to drive after certain hours, you may have to pay an insurance surcharge to the state. Beyond the law, you may have to pay an increased rate for your privately-held insurance. It’s all part of the package – not just the fine.
Michael – on a separate note, your bias is showing again. You offer what appears to be a clear, well thought out, intelligent argument on this issue, which I appreciate. Most of your points are well stated and I believe open for debate. But you did slip up here …
“…although Republicans often express terror at the prospect of felons illegally voting.” Really? TERROR? Not the kind of language I would expect in a philosophical debate.
Motivation is certainly relevant in assessing the ethics of the person engaging in the action.
As you note, a utilitarian calculation of harms and benefits can be a reasonable approach to moral problems. Sorting out what to do includes determining the facts (what are the likely consequences) as well as the values aspect (what counts as a harm and what counts as a benefit).
In some cases, the ends would justify the means. That is, the moral harms done would be exceeded by the moral good achieved. In other cases, the opposite would hold. It is also worth noting that there are moral systems, such as Kant’s, that focus on the morality of the act itself. For Kant, the consequences do not determine the morality of an action, so he does not accept that the ends justify the means. Rather, the goodness or badness of the act lies in the willing. In rough terms “some things just ain’t right.”
I would say that some Republicans really do express terror at this prospect. But, to be fair, some do not.
I think it’s important to make a distinction here between a discussion of pure morality in the philosophical sense, and the specifics of government. In our government, the process is paramount – our laws are based on precedent and have been carefully crafted to (theoretically) represent the will of the people and limit the individual authority of any government entity. When government begins to represent itself, it becomes a very dangerous situation. Political motivation for the passage,repeal or selective enforcement of laws cuts at the core of the foundations of our democracy, and should not be tolerated at all.
The presumed political motivations of McAuliffe have very little to do with the moral rectitude of just law. The “ends” which justify the means in this case would be self-serving – i.e., opposition to Republicans and support of Democrats. It is a very Machiavellian interpretation of the principle – “If it means Democrats will retain power, then it must be right”. Lenin and Trotsky also held similar views, if you are one to believe that if someone favors your political views then you necessarily favor theirs.
Whether or not, in your opinion, some Republicans express “terror” at the thought of allowing felons to vote is irrelevant. My comment is based on the fact that you have attempted to offer a well thought out argument in favor of allowing felons to vote; you have backed this up with some historical precedent and an interesting philosophical analysis. When you make a comment like that, it reduces your entire thesis to a level of mudslinging that is beneath you.
To be fair, I think the Republican opposition to McAuliffe may be just as politically motivated. On this the parties may actually agree – that to give felons the right to vote in Virginia may represent a very important bloc that favors Democrats in a highly contested swing state. A more cynical person than I would suggest that neither side really cares what felons do.
[…] essay on felons and voting received an interesting comment from A.J. McDonald, Jr. He raised a concern about having rapists, robbers and murders voting. One initial reply is that […]
[…] essay on felons and voting received an interesting comment from A.J. McDonald, Jr. He raised a concern about having rapists, robbers and murders voting. One initial reply is that […]
[…] Felons & Voting […]
[…] Felons & Voting […]