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Felons and the Vote

Last week, a perennial bill was reintroduced in Congress, which would prohibit the states from barring felons from voting once they were no longer in prison.  That is, it would require states to let felons vote.

I’ve testified against this bill before Congress a couple of times in the past, and recently co-authored a paper on the subject that you can read here.  So I thought I would take the occasion of the bill’s reintroduction last week to note all that, and also to share with you here a shorter piece I did on this topic that appeared last month in the online publication Both Sides:

It makes sense that felons should lose their right to vote. You don’t have a right to make the laws if you aren’t willing to follow them yourself. To participate in self-government, you must be willing to accept the rule of law.

We don’t let everyone vote – not children, not noncitizens, not the mentally incompetent. There are certain minimum and objective standards of trustworthiness, responsibility, and commitment to our laws that we require before people are entrusted with a role in the solemn enterprise of self-government. Those who have committed serious crimes against their fellow citizens don’t meet those standards.

This doesn’t mean that the right to vote should never be restored to felons, but the decision to restore the right to vote should not be made automatically. It should be made carefully, on a case-by-case basis, weighing the seriousness of the crime, how long ago it was committed, and whether there is a pattern of crime.

If a felon shows that he or she really has turned over a new leaf and is no longer a threat to the community, but is giving something back to it, then it makes sense to restore the right to vote to that individual. A formal ceremony, with a federal judge and the felon’s family and friends present, would be appropriate and meaningful then.

But it should not be done automatically. The restoration of the right to vote then is not meaningful, and it is not wise. After all, two out of three felons who are released from prison commit another crime, and it is ridiculous to assert that the reason they do so is that they can’t vote.

The other arguments made in favor of felons voting are also unpersuasive.

For example, it’s frequently asserted that, once he’s been released from prison, a felon has “paid his debt to society.” It’s true that he’s paid enough of his debt to be allowed out of prison, but that doesn’t mean there aren’t continuing consequences. We don’t let felons possess firearms or serve on juries, for instance. By the way, most of the groups that want felons to be able to vote want them to be able to vote when they are still in prison, so this “paid their debt to society” argument is a red herring.

It’s also often asserted that felon disenfranchisement laws are “racist.” That’s not true either. To be sure, they may have a disproportionate impact on some racial groups, because at any point in time there are always going be some groups that statistically commit more crimes than others, but that doesn’t make the laws racist – just as the fact that more crimes are committed by men doesn’t make criminal laws sexist. The people whose voting rights will be diluted the most if criminals are allowed to vote are the law-abiding people in high-crime areas, who are themselves disproportionately black and Latino.

As a historical matter, likewise, it’s not true that these laws have racist roots. While a few southern states passed such laws a hundred years ago, those statutes are no longer on the books, and they would be unconstitutional if they were. Today’s laws have their roots in ancient Greece and Rome, came to the American colonies from England, and are found in nearly every state in the country, where they were adopted without any racist intent at all and have never been applied discriminatorily.

If there were persuasive evidence that these laws are racially discriminatory, then there are plenty of well-funded organizations – starting with the U.S. Department of Justice – that would be eager to bring lawsuits against them. The fact that such lawsuits are not being brought shows that the evidence of racial discrimination is just not there.

The Supreme Court has ruled that as a general matter these laws do not violate the Constitution, and indeed the Constitution itself contains language approving of felon disenfranchisement. Similarly, the history of the Voting Rights Act makes clear that it was not intended to require letting criminals vote.

Finally, remember again that the people who are the victims of crime are themselves disproportionately poor and minority. It does them no good to empower criminals; rather, it serves them, the rest of society, and indeed felons themselves best if we create incentives for individuals to show they have turned over a new leaf before they are re-empowered. Automatic felon re-enfranchisement sends a bad message: We do not consider criminal behavior such a serious matter that the right to vote should be denied because of it.

People can be forgiven, but that does not mean there aren’t consequences for wrongdoing. And requiring evidence of repentance before easing those consequences makes perfect sense.