Eric Holder on Felons' Voting Rights

Attorney General Eric Holder wants states to grant the franchise to convicted felons once they've served their time in prison. Holder asserted on February 10th that "[i]t is time to fundamentally reconsider laws that permanently disenfranchise people who are no longer under federal or state supervision." Holder alleged that ex-Confederate states enacted laws disenfranchising felons as a way of denying the vote to blacks. He also said that in states that allow ex-felons to vote their recidivism rate is lower. Holder claimed that being permanently disenfranchised perpetuates opprobrium and isolation in ex-felons, and results in the commission of new crimes.

Before proceeding, consider the following. First, most statutes governing the franchise exist at the state level. One exception is the 1965 "Voting Rights Act," which has been extended and modified on several occasions. Others are the XVth (blacks' suffrage), XIXth (women's suffrage), and XXVIth (18-20 year-olds' suffrage) amendments to the Constitution.

Second, state statutes concerning felons' voting rights vary considerably. Two states, for example (ME and VT), have no statutes concerning felons' access to the franchise. On the other hand, eight states (AL, IA, KY, MS, NM, NV, VA, and WY) permanently ban felons from voting. Most of the rest of the states' statutes restore a felon's voting privileges once he/she has served his/her sentence. Pennsylvania retains a five-year ban on all felons, even after they've served their sentence.

Third, state statutes relating to felons' voting rights are in flux. Florida, for example, used to impose a permanent ban, but recently amended its statute to restore those privileges after a felon has served her/his prison sentence. Delaware also changed its law to permit some felons to vote once they're out of jail, but not if the felon is a murderer, a sex offender, or guilty of felony bribery.

We also need to explore when statutes governing felons' access to the franchise were enacted, and why such laws were created. Alexander Keyssar, author of The Right to Vote (2009), may have written the most recent comprehensive book on the franchise's history in the United States. He points out that "[d]isenfranchisement for [serious] crimes had a long history in English, European, and even Roman law, and it was hardly surprising that the principle of attaching civil disabilities to the commission of crimes appeared in American law as well." Keyssar alleges that "disenfranchisement, whether permanent or for an extended period, served as retribution for committing a crime and as a deterrent to future criminal behavior." It is not surprising, then, that states above and below the Mason-Dixon line initiated disenfranchisement for felonies in the late 18th century.

The fourth facet of laws about voting is that there is no such thing as a nonpartisan statute affecting any aspect of voting. Every law governing the franchise has some disparate partisan impact, and people on both sides of the partisan divide know it.

Just to mention one, analysts expected the XXVIth Amendment to enfranchise many more Democrat voters than Republican ones. Polls at that time showed young people were much more likely than their "elders" to identify as Democrats, and the years between 1964 and 1970 saw many youthful protests against "the establishment." The "generation gap" was a catch-all phrase for the leftward tilt of the young vs. the centrist or rightward orientations of those over 30. A funny thing happened, however, in 1972, when 61% of first-time voters cast ballots for Richard Nixon and only 38% voted for George McGovern. If more heed had been paid to the little book, Vietnam and the Silent Majority (1970) by Milton Rosenberg, Sidney Verba, and Philip Converse, people would not have been so surprised. (Of course, one must also mention that Barack Obama garnered disproportionate percentages of the "youth vote" in 2008 and 2012.)

Returning to the issue of felons' voting rights, it is no small matter that race enters into the topic. ABC News estimated, for example, that 1.4 million black men -- more than 1 in every 8 -- were banned from voting in 2012 because they had been convicted of felony offenses. Roughly 2% of Americans were banned from voting in 2012 because they are felons, but the percentage rose to 13 among black males. Put another way, black males comprised 35% of all Americans banned from voting due to felony conviction in 2012.

Add these figures to the facts that 95% of blacks said they voted for Barack Obama in 2008, and 93% did so in 2012. (As a relative much given to malapropisms used to say, "The thick plotens.")

Although Holder's call for restoring felons' voting rights was quickly seconded by Obamians in the mainstream media, such as the op-ed writers at the New York Times, several voices were raised in protest.

One such was Roger Clegg, President and General Counsel of the Center for Equal Opportunity, who posted an opposing view on the National Review Online two days after Holder's speech. Dismissing the speech as "dishonest," Clegg argued that Holder ignored the reason felons are disenfranchised: viz., if one isn't willing to obey the law, he/she shouldn't claim the right to make laws for others by voting. Clegg also pointed out that Holder had "played the race card," and wrongly asserted there is a racial agenda behind laws that disenfranchise felons.

Michael Mukasey, attorney general in George W. Bush's Administration, also opposed Holder's call for enfranchising ex-felons in an op-ed published online in The Wall Street Journal on Valentine's Day. His essay's title, "What Holder Isn't Saying about Letting Felons Vote," pretty well conveys the gist of his thoughts. Most of Mukasey's op-ed is a well-reasoned assessment of why Holder is off-base. Mukasey closes, however, by observing that, for a variety of reasons, Holder invites cynicism about his motives.

Cynicism about Holder's motives lies at the heart of an editorial in the online version of Investors' Business Daily, also published on February 14th. The editorial "cut to the chase" when it alleged that Holder's speech was "a ruse to unlock 2 million Democrat votes."

I have no idea of Holder's motivations. It is possible that his motives are as pure as the newly-driven snow.

However, those familiar with Holder's record as attorney general, especially his oversight of the racially-charged Civil Rights Division of the DOJ, which J. Christian Adams -- once an attorney in that division -- documents in Injustice: Exposing the Racial Agenda of the Obama Justice Department (2011), are bound to wonder. Adams alleges that Holder has been obsessed with race at least since he was in college. The racial bias of Holder's DOJ was revealed when the Civil Rights Division refused to pursue the case against the New Black Panthers' voter intimidation practices in Philadelphia on Election Day 2008.

Therefore, it is possible that Holder's speech on February 10 was a genuine effort to plump for increased voting rights for ex-felons, a disproportionate percentage of whom are black.

But... what if Holder were engaging in "misdirection," seeking to deflect attention away from the immensely unpopular ObamaCare by "changing the subject?"

The question deserves an answer.

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