A debate is raging in Washington State concerning the legitimacy of denying voting rights to felons. The Seattle Post-Intelligencer has
published several editorials over the course of the past few years
insisting on the right of felons to participate in the political
process. The Seattle Post-Intelligencer editorial board agrees
with the ruling of the Washington Supreme Court Chief Justice Gerry
Alexander that society “should encourage rather than discourage felons
to rehabilitate themselves.” Although the judicial branch of government
at both the state and national levels commonly supports felon voting
rights, legislators, who for the most part do not support felon voting
rights, have more influence than judges on the everyday ramifications of
felon disenfranchisement. To overturn felon disenfranchisement, then, a
massive education effort is needed, targeted at the American public.
Americans should be made to reflect on the practical consequences of
felon disenfranchisement as well as on its implications for democratic
governance. They should be encouraged  to elect legislators who will not
campaign for discriminatory voting practices.

According to Manza and Unger in Locked out: felon disenfranchisement and American democracy (Oxford
University Press, 2006), 5.4 million Americans, amounting to one in
every forty voting-age adults, is currently barred from voting due to a
felon conviction. Allard and Mauer demonstrate in Regaining the vote: an assessment of activity relating to felon disenfranchisement laws (The
Sentencing Project, 2000), that 5.4 million Americans translates into
thirteen percent of all African-American males, seven times the national
average.

America is not the only democracy in the
world that prohibits felons from voting after parole (even more
polities forbid voting for felons on parole), but it applies the
principle of felon disenfranchisement more severely than any other
democracy in the world. America’s per capita incarceration rates are the
highest in the world, and disproportionately higher for
African-Americans and Latinos. These laws contribute to an array of
gratuitous punishments that serve no practical function other than to
consolidate the power of the already powerful. While a few active and
articulate organizations, such as The Sentencing Project, Unlock the Block, DEMOS, The Brennan Center for Justice at NYU, Soros Open Society Institute, and Human Rights Watch,
have documented how felon disenfranchisement builds on a legacy of
racial profiling and class prejudice, and actively contributes to social
inequality, few have drawn attention to the core principles at stake in
the issue of felon disenfranchisement, or to the inherent contradiction
between felon disenfranchisement and democracy.

No
doubt because activists are justifiably interested in yielding
immediate result, the majority of work on felon disenfranchisement has
thus far pursued various versions of the ‘applied justice’ argument. But
the overwhelming emphasis on pragmatics over ethics in discussions of
felon disenfranchisement cedes too much to those who prefer
discriminatory governance to true human equality. Felon
disenfranchisement should not have to be debated solely on pragmatic
grounds when there are more fundamental and non-pragmatic issues at
stake. At best, pragmatics is a means of arriving at the more powerful
realization that felon disenfranchisement, whether socially useful or
socially harmful, inhibits democracy.

To a no
lesser extent than capital punishment, felon disenfranchisement deserves
to be debated on ethical and not solely pragmatic grounds. Any society
that legislates behavior-based restrictions on the right of franchise is
guilty of undemocratic penal practices. Even if it could be
demonstrated statistically that felon disenfranchisement increases
crime—and there is nothing to warrant such an assertion—it would still
be anti-democratic to extend the right to vote to some while withholding
it to others. In a democracy, our right to vote is not contingent on
our being good citizens or obeying the law. Rather, voting is the condition for our obedience to the law.
The fact that we vote enables the state to legitimately insist on our
obedience to its laws, provided  that democratic theory approximate
political practice. In a polity wherein citizens are forbidden to vote,
the state has no right to expect such obedience. Felon
disenfranchisement of itself violates the logic of the democratic state.
If democracy is an ethical endeavor and not only a pragmatic strategy,
then we are well-advised to take account of the basic legal and
philosophical issues at stake in felon disenfranchisement, which have
less to do directly with crime reduction than with the foundation of
democracy as such: popular representation.

It goes
without saying that the theoretical justification for requiring
obedience to society’s laws from all citizens often does not work out as
it should in practice. Elections and campaigns are more often than not
corrupted by greed. Choosing among several inadequate candidates is
often less than satisfying, and voter participation is low among fully
qualified voters. But at least democratic social theoryattempts to
justify the demand for legal obedience. At least we possess an ethical
ideal for this form of political being. At least a citizen is asked to
obey laws not because the elite demands obedience but because the laws
are perceived to derive (indirectly) from the will of the people. No
matter how imperfect its application, the ideal of a democratic polity
deserves our admiration. And yet all these ideals are utterly discarded
by policymakers and the citizenry alike when it comes to felon
disenfranchisement. Suddenly, democratic ideals are perceived to be
incapable of insuring a society’s security, and the right to vote, to
participate actively in one’s own polity, is demoted to a mere privilege
granted on basis of good behavior and economic prosperity rather than a
basic human right.

A polity that legislates
restrictive voting does not fulfill the basic criterion for popular
representation. It might be objected that felons are not the only people
excluded by voting laws; citizens younger than eighteen are also
forbidden from casting their ballot. The major difference between a
child and a felon is that the child looks forward to voting someday. He
or she can anticipate eventually having access to full political
participation. In polities where permanent felon disenfranchisement is
the norm, the felon by contrast is barred from political participation.
To felon has nothing to look forward to in such a polity, and lacks any
hope of ever being fully integrated into this society. It is not
undemocratic to temporarily forbid someone from voting in the
expectation that they will eventually be eligible. The voting rights of
minors are a pragmatic issue that can be debated in terms of the age at
which a minor is capable of making intelligent political choices. Felon
disenfranchisement is different; firstly because it is often permanent;
secondly because it makes the right to vote contingent on one’s
obedience to the law, whereas in a true democracy one’s duty to obey the
law is contingent on one’s right to vote. When the first criterion, the
right to vote, is missing, its presumed consequence, the duty to obey
the law, is called into question from the vantage point of legal theory.

It
is undemocratic to permanently bar any citizen, no matter how heinous
his or her crime, from political participation in society at large. A
government of the people departs from democracy when it bars felons from
voting. The polity that practices such discrimination has no legal
right to insist on obedience to its laws, inasmuch as a felon barred
from voting is not subject to laws that require the consent of the
governed. Forbidding the felon to vote makes of his or her consent a
dead issue. A polity that does not ask for the consent of the governed
is not a democracy. According to social contract theory, it is
legitimate for a state to demand obedience from its citizens, because
these citizens exist in a reciprocal relationship with their rulers and
actively contribute to the creation of society’s laws. Felon
disenfranchisement violates this reciprocal relationship and makes a
mockery of the concept of popular representation.

Felon
disenfranchisement is not only practically ineffective at deterring
crime. It is itself a crime. It is a crime to imprison citizens
according to the implicit terms of a social contract and then to deny to
them the right to intervene in that contract and to contest its terms
through voting. The political right to vote is logically prior to duty
to obey the laws of the society within which one is voting. If a citizen
is denied the franchise, he or she has no obligation to obey the laws
of that society. According to classical social contract theory, any
violation of the legal code of a society which unequally distributes the
franchise cannot properly be understood to be a crime, because the
category “crime” presumes that one violates a set of mutually agreed
upon rules. When felon disenfranchisement is accepted as a normative
mode of governance, this effectively means that people are being
punished for violating laws it was not their legal duty to obey.

No
law can be legitimately issued by a polity that administers the right
to vote in a discriminatory manner. Felon disenfranchisement impedes not
only just punishments; it also calls into question the internal
coherence of criminal law within a democracy. A prisoner in a polity
that practices felon disenfranchisement may have violated ethical norms,
but to call this person a felon, which is a legal category, the law
must be applied democratically. In the absence of an internally coherent
policy for the administration, we have no way to distinguish between a
political dissident and a violent offender for the purposes of criminal
law; everyday criminals become political dissidents and political
dissidents become everyday criminals. It is in the interest of justice
to keep these distinctions intact. Felon disenfranchisement is the
greatest obstacle to the internal cogency of American criminal law.

For
a democracy to be a democracy, all citizens must have the right to
vote. (In the case of minors, they must have these rights potentially,
in their future.) This perspective is as old as Plato’s Republic and Aristotle’s Politics.
For the political theorists of antiquity, democracy, though not the
ideal form of government, presumed the political participation of all of
its citizens. There are two obvious senses in which the Greek ideal is
inadequate for us today. Firstly, we know that the Platonic and
Aristotelian concepts of citizenship excluded women and slaves, and even
made the possession of slaves a necessary prerequisite to the
attainment of citizenship. The modern democratic ideal, by contrast,
requires that citizenship be extended more broadly, and not be parceled
out along lines of gender or racial or class origin. The modern argument
with the ancient Greek theorists is less over the principle of
democracy than over the principle of citizenship, and to whom it should
apply. Secondly, Plato and Aristotle prescribed democracy only for
societies that today would barely qualify for “village” status, and we
know that such an ideal is impossible today for nearly all political
entities.

In spite of their attachments to social
hierarchies rejected by modern democratic social theory, both Aristotle
and Plato understood that democracy is incompatible with the
institutional disenfranchisement of citizens. They did not assume, as
many do today, that one earns the right to vote through good behavior.
To the contrary, the citizen behaves well because he (always only he)
possess the right to vote, and can therefore he held to highest of
standards. Life in a free society makes one a better person, not the
other way around. The citizen’s selfhood is realized within the polis,
and most perfectly in the act of voting. One does not ask to be rewarded
by the state for good behavior by being granted already-inalienable
rights.  As indicated above, neither Plato nor Aristotle would have
maintained that the values pertinent to the citizenry should be
universally applied to every human being, but at least they articulated
the basic principles of political life, and the motivation for
responsible citizenship.

Felon disenfranchisement
is not only an issue of crime reduction. It is a question concerning
democracy. This point is worth stressing because even political
conservatives, and even those opposed to or uninspired by social justice
movements, ought to be able to recognize the fundamental inconsistency
between democratic values and felon disenfranchisement. Framing the
felon disenfranchisement debate as a non-partisan issue—as a question
concerning democracy rather than crime reduction—will ultimately make it
more acceptable to society at large, and help activists, scholars, and
prisoners win the battle for its annulment.

As
someone who had been at the receiving end of domestic violence, I am
glad I had the option of calling the police to take my husband to prison
for his violent crimes. I am glad there are prisons for people who
endanger the lives of others. When they uphold democratic principles,
penal regulations play a vital role in promoting the social good. But in
order for penal regulations  to serve society, rather than the ruling
elite, criminal law should not intensify already existing hierarchies
between the haves and the have-nots.

It should not
take a prison rights activist to see that permanent felon
disenfranchisement for most classes of felons, now practiced by eighteen
states, needs to be overturned at the national level. The states
currently practicing permanent disenfranchisement for felons are
Arizona, Arkansas, Minnesota, Nebraska, Nevada, North Carolina, South
Dakota, Florida, Kentucky, Mississippi, Virginia, Alabama, Delaware,
Maryland, Missouri, Tennessee, Washington, and Wyoming. A federal
initiative is needed to take felon disenfranchisement away from the
discretion of these states. Curtailments to felons’ right to participate
in the political process are too basic an instance of anti-democratic
legislation to be decided locally, or on a case-by-case basis.

Just
as Jim Crow laws were overturned in the 1960s, and just as they were at
the time supported by many legislatures at the state level who had no
problem with the idea of “separate but equal” status, so too today
discriminatory voting laws need to be overturned across the country and
without restrictions. What would happen to American politics if 5.4
million felons were suddenly granted the right to vote? For one thing,
George Bush might not have been elected in 2004. The great oil war might
not have dragged on for so many years. A polity whose rulers decide who
can and cannot vote is liable to become an oligarchy that exists only
to serve the interests of those already in power.

Rebecca Gould is an Instructor in Literature Humanities at Columbia University. This article has been republished under a Creative Commons licence from OpenDemocracy.net.