February 19, 2015

Courting the Gangland Vote

Rand Paul has reinvigorated a bill to grant voting rights to felons.

Attorney General Eric Holder has long pushed for restoring voting rights to convicted felons. A year ago, we explained his real motive: Votes for Democrats. Just recently, however, this issue – otherwise dead-on-arrival in the Republican-held Senate – gained renewed life with the revival by Senator Rand Paul (R-KY) of the Civil Rights Voting Restoration Act. This is an unfortunate move by Paul, but we suspect the measure may simply be a play for votes, particularly minority votes, in anticipation of his potential presidential run.

Under the bill, after being free on probation for at least one year, felons convicted of nonviolent crimes would have the right to vote in federal elections. While at first blush this might seem like a reasonable bill – to restore those who’ve paid their debt to society back to “full status” – a closer examination of the issues reveals serious constitutional and practical flaws with this line of reasoning.

First, there’s that whole “constitutionality” thing: The bill itself is unconstitutional. It’s no secret the doctrine of federalism – the fundamental constitutional doctrine distributing political power between the federal government and the states – has been under attack since the founding of our Republic. It’s also no secret those attacks have accelerated over the course of the last hundred years. What apparently is a secret is the furtive means by which these attacks execute.

For example, by its very title Paul’s bill ostensibly restores “civil rights” by giving formerly disenfranchised felons the right to vote again. What’s not to like about that, right? How noble. The problem with this linguistic shell game is that, first, a convicted felon’s “right” to vote isn’t a right at all; and, second, the determination of the qualification of voters is a constitutionally secured right – that is, an actual right – belonging to the individual states.

While the so-called “Elections Clause” in Article I, Section 4 of the Constitution empowers Congress to alter the “times, places and manner of holding elections for senators and representatives,” nowhere does the Constitution authorize Congress to determine voter eligibility. That power belongs exclusively to the states, as a number of cases have borne out over the past two centuries, culminating with the landmark Supreme Court case, Arizona v. Inter Tribal Council of Arizona. In that case, the Court conclusively ruled that only states have the power to determine the qualifications of its federal voters. As the Court explained, the primary reason the Founders gave this power solely to the states is to take away the incentive and power for Congress to control its own electorate. Such a self-licking-ice-cream-cone would open the door to a host of corruptions and undermine the very framework of the Constitution itself.

If enacted, however, Paul’s federal bill would throw this state power under the constitutional bus and apply a one-size-fits-all diktat to take the decision out of states’ hands and give it to the federal government. Oh, did we also mention his bill effectively mandates that those convicted of treason, bribery, voter fraud, espionage and the like – all “non-violent” crimes, of course – must be allowed to vote? We can’t wait to see the kinds of levelheaded rules that bunch votes into law.

Beyond this fatal constitutional flaw, however, lies perhaps a greater, even more basic philosophical problem. The Fourteenth Amendment specifically provides that a state may deny individual citizens the right to vote “for participation in rebellion, or other crime.” The amendment’s implicit rationale is simple: Why should those unwilling to follow the law be permitted to make the law or vote for those who do? Further, who better to determine if a paroled felon (a.k.a. “would-be voter”) is more likely to continue to follow the law than the state in which the felon resides? According to the Justice Department, over two-thirds of felons released from prison are rearrested for a new crime within three years of release – that number spikes to over three-quarters within five years of release.

Is it unreasonable, then, that some states now mandate a “waiting period” to see whether ex-cons will remain in the majority of prison recidivists? Or that some states mandate an application process so that individual determinations of worthiness to regain the voting franchise can be made by states where the franchise is sought? All crimes – even felonies – are not equal. Numbers and frequencies of crimes impact this equation even further, of course, as does time. An individual who committed a crime three decades ago is likely a much better candidate to receive reinstated voting rights than one who was paroled a year ago for the same crime. Parsing through these case-by-case matters is best left to the states for the obvious reason that the states are closer to the issues and the people whose lives they impact.

Regardless of the debate on the merits as to whether the voting franchise should be reinstated to any particular class of paroled felons or to felons generally, any legislation passed by Congress that purports either to grant powers to the federal government that are constitutionally reserved by the states or to deny those same powers to the states themselves is both unconstitutional and foolish.

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