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April 22, 2013

"Defensible Disenfranchisement"

The title of this post is the title of this newly posted article by Mary Sigler now available via SSRN.  Here is the abstract:

As many commentators have noted, the practice of felon disenfranchisement — denying the right to vote to some or all of those convicted of a felony — is widespread and familiar, but, at least in the modern context, also short of defenders.  Indeed, apart from a handful of vocal public officials, a case for disenfranchisement is rarely articulated at all. Instead, critics have occupied the field largely unchallenged, arguing that felon disenfranchisement is illiberal and undemocratic, counterproductive, racist, and, in the United States, unconstitutional.

Against these claims, this paper outlines a form of felon disenfranchisement that is consistent with liberal-democratic values.  In particular, I argue that felon disenfranchisement is best conceptualized not as a form or aspect of punishment but as a means of regulating electoral eligibility.  On this view, felons render themselves liable to disenfranchisement because they have violated the civic trust that makes liberal democracy possible.  Although the long history of disenfranchisement features extreme forms of exclusion and reflects a range of odious and unconvincing rationales, a more defensible version, grounded in the liberal and republican values of the Anglo-American tradition, would apply to a narrower range of offenders and include a meaningful opportunity for restoration. In this way, the temporary exclusion of serious offenders from the electorate has the potential to affirm, rather than betray, our commitment to liberal-democratic community.

April 22, 2013 at 12:08 PM | Permalink

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Comments

I think it's worth pointing out that even this defense is much more limited in scope than felony disenfranchisement as practiced in much of the US today--calling for it only for the traditional common law crimes of murder, rape, arson, etc. and for limited duration, a single presidential election cycle.

Posted by: dsfan | Apr 22, 2013 12:42:51 PM

Martha Stewart should be permitted to vote, period. Felon or non-felon, she contributes more wealth to our society than anybody in government.

We should disenfranchise voting rights for those who vote fraudulently or enable and/or encourage others to vote fraudulently, or inhibit the vote of qualified voters through force, threats or coercion. I think most of these types of crimes are still listed as misdemeanors. But then, many party officials would be affected.

The definition of felony has been ever expanding since I can remember, and I am retired.

Posted by: albeed | Apr 22, 2013 10:58:15 PM

That's right. Before we begrudge or deny voting rights to "convicted felons" it's good to remember that that class of citizens ranges from Martha Stewart to the late sex-offender/cannibal/ killer Jeffrey Dahmer.

Especially in the federal system it must be considered that virtually everything its vaunted, militarized, hyper-ambitious bureaucrats deign to investigate/prosecute can be exaggerated and stretched to fit one or more of the tens of thousands of broad, vague, sweeping felony charges that are on the books these days.

Posted by: John K | Apr 23, 2013 9:24:45 AM

In Michigan alone, there are about 50,000 felony convictions every year. Clearly, some of those are repeat offenders, but the total number of convicted felons in Michigan now amounts to about one-sixth of the adult population. That means that in any group of four adults picked at random, the odds are 625 in 1296, or about 48.2%, that none of them has a felony conviction. If we are going to live in what professes to be a democracy, the ability to select the people who make and enforce our laws cannot reasonably be forbidden to such a large class of people.

Posted by: Greg Jones | Apr 23, 2013 11:40:42 AM

i agree the ideal that in a democratic republic people can be forever stripped of thier right to vote is nothing short of TREASON

Posted by: rodsmith | Apr 23, 2013 1:58:21 PM

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