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Wise Latinas, Felons Voting, and the Racial Divide

NPR and Wise Latinas – A researcher at Harvard has concluded that black federal trial judges get overturned at a rate 10 percent higher than white federal trial judges. Now, I’m skeptical that this proves anything about anything, but what’s interesting is the way this National Public Radio story looks at the study.  All kinds of explanations are considered, except for the most obvious one: If, in the name of “diversity,” less qualified African Americans are appointed to the bench, then they would be more likely to commit reversible errors. 

NPR gives more credence to the possibility of “unconscious biases” or, in particular, that black judges might bring a particular viewpoint to their judging, and then that viewpoint gets squelched on appeal, defeating the whole purpose of “diversity.” So we’re back to the notion that your skin color and national origin not only can but should determine how a judge rules — back, that is, to the notions of wise Latinas and anti-Trump Mexican judges.

Virginia’s Non-Racist Voting Law – The New York Times has an op-ed here by the ACLU’s Dale E. Ho, titled “Virginia’s Racist Voting Law” and tied in with the recent oral argument before the Virginia state supreme court, in which a challenge is being heard to Governor Terry McAuliffe’s executive order reenfranchising 206,000 felons. 

Hans von Spakovsky and I have elsewhere explained why the order is bad policy and bad law and politically sleazy to boot, and why it makes perfect sense to require those who have broken the law to show they have turned over a new leaf before letting them participate in the solemn enterprise of making laws for everyone else. 

So today I’ll make just one point in response to Mr. Ho’s claim that the 1971 law currently on the books in Virginia is somehow tainted with the racist remarks made at a state constitutional convention in 1902.  If there were any evidence that this was true, then — as Mr. Ho himself acknowledges in the op-ed — the U.S. Supreme Court has made it clear that such a law would be unconstitutional, and the ACLU (or the Justice Department, or the Democratic Party, or any one of many other well-funded left-wing and politically savvy entities) would be only too happy to challenge it in court. Virginia, after all, is a swing state that’s rich in electoral votes. 

But no such lawsuit has been brought — which I think proves that there really is no such evidence.

Oh, and by the way:  Late last week the Virginia state supreme court struck down Gov. McAuliffe’s order.

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Finally, the Orange County Register recently asked for views on “The Racial Divide” in this country, and here’s what I sent them:

First, we should keep things in perspective.  Compared to where we were 200, 100, or even 50 years ago, America has made amazing progress.  It is illegal to discriminate in just about any public transaction, and racism is socially unacceptable.  America is an astonishingly multiethnic and multiracial country, and indeed individual Americans are more and more likely to be multiethnic or multiracial – starting, of course, with our president.

Racism still exists, but in a free society there will always be a few racists, of all colors.  And there are racial disparities in many areas.  But the racism and the disparities that are problematic are principally about African Americans, not other groups.  What’s more, those disparities are the main cause of the remaining antiblack racism.   They don’t justify it — we should treat people as individuals — but they do explain it.

Finally, the reason for these disparities — in crime, in poverty, in education, you name it — is the fact that more than 7 out of 10 African Americans are born out of wedlock today.  Growing up in a home without a father — whatever your color — is linked to just about any social problem you can name.  Whites and Latinos are headed in the wrong direction on this, too, but the problem is worst among blacks.

Bottom line:  If American race relations are going to continue to improve, and if America is going to continue to be the envy of the world, people need to wait until they are married to have children.

Two Other Points on Felon Voting

I wrote a couple of weeks ago about Governor Terry McAuliffe’s lamentable decision last month to reenfranchise over 200,000 felons in Virginia.  But the news coverage of that decision calls me to make a couple of additional points.

Over eleven years ago, I had a column on National Review Online debunking the claim that racism explains why felons are currently disenfranchised.  I was prompted to write it because a number of bien-pensants were making this claim at that time, which I suspected could be traced to misinformation being fed to them by the “the well-funded and ubiquitous felon-reenfranchisement movement.”
It’s still happening, as illustrated by a couple of editorials in the wake of Governor McAuliffe’s decision.

The New York Times has an editorial that states, “Felon disenfranchisement laws … were enacted during the Reconstruction era in a racist effort to make it harder for newly freed African-Americans to vote.”  And, in an editorial titled, “Felon voting bans have a racist past,” the Minneapolis Star Tribune refers to the “the racist rationale that has underpinned state laws disenfranchising felons after their release from prison.”

Those interested in the truth can read my old column linked to above, as well as a paper that Hans von Spakvosky and I did more recently and my testimony before Congress.  The bottom line is that, while over a hundred years ago five Southern states did target newly-freed slaves with their disenfranchisement laws, those particular laws are no longer on the books and could be easily challenged and struck down if they were, and the practice of disenfranchising felons has roots that predate those laws and has been followed in the other states for good reasons that have nothing to do with race.

Not that the truth matters to some people. 

While I’m at it, let me address another common — and wrong — argument for letting felons vote.  That’s the argument that, as soon as you’ve served your prison sentence, you should be able to vote because you’ve “paid your debt to society.” 

My hat is grudgingly off to the person — no doubt a felon or a liberal or both — who came up with that phrase.  It sounds plausible but, when you think about it, it really doesn’t make a lot of sense.

It’s not as if, when you rob a liquor store, you’re just borrowing something from society the way you borrow money from a bank, and if you go to prison then you’ve paid it back, and we’re all square and nobody can hold it against you. 

It’s not as if society says, “Hey, we’ll make a deal with you, and you can rob a liquor store, but if we catch you, then you have to agree to go to prison.  We feel like that’s a good deal for us, getting to lock you up and provide your room and board, and we’re willing to let you try to rob a liquor store if you let us do that.  Banks like to receive loan payments, and we like to lock people up — it’s worth it to banks to loan money if they get repaid, and it’s worth it to us to let people try to rob liquor stores so long as we can lock people up.”  

As I said, this is silly, and so this paid-your-debt-to-society argument really doesn’t make much sense.  There’s no reason society ought to forget the fact that you’ve robbed a liquor store if that’s a relevant fact, just because you’re no longer in prison.  For example, maybe you shouldn’t be allowed to own a firearm. 

And maybe, recidivism rates being well over fifty percent, the fact that you’ve been released from prison doesn’t mean you should automatically and immediately be presumed to be committed to our laws and responsible enough so that you can participate in the solemn enterprise of self-government. Maybe, instead, you should have to show you’ve turned over a new leaf and are willing to follow the laws that you’ll be making for other people, directly or indirectly, when you vote.

Brandeis Brief -- George Leef has an interesting column in Forbes about a controversy involving the Boycott, Divest, and Sanction (BDS) movement and the American Studies Association.  The latter, which describes itself as a scholarly association that views U.S. culture from multiple perspectives, supports the former, which is a movement opposed to Israel and its policy toward Palestinians. This has led to a lawsuit by some of the members of the American Studies Association, filed with legal support from the Louis D. Brandeis Center for Human Rights. 
Brandeis Center president Kenneth Marcus, says of the suit, “It’s about any association officer or director who is thinking about using their association as a tool to advance their own ideological agenda. This should send a signal that if association activists are not concerned that BDS resolutions are anti-Semitic and may be a violation of academic freedom, they should be concerned that they may violate corporations law.”

Felon Voting and Congress

The Heritage Foundation has just published a paper that I co-wrote on legislative efforts to re-enfranchise felons.  In this email, I’ve excerpted the second part of the paper (along with the paper’s “Abstract”).  This part of the paper argues that automatic re-enfranchisement of felons is unwise as a matter of policy

But the paper begins by demonstrating in lawyerly detail that, whatever you think as a matter of policy, the Constitution clearly commits this issue to the states.  So it is disturbing that Sen. Rand Paul, for example, who claims to be a great champion of the Constitution and its limitations on federal power, is once again pushing a federal bill along with Sen. Harry Reid in this area; the first part of our paper addresses that bill in particular and its blatant unconstitutionality.


Both the original Constitution and the Fourteenth Amendment specifically delegate to the states the right to determine the qualifications of voters and to disqualify anyone who participates “in rebellion, or other crime.” Congress cannot override the Constitution through legislation and has no authority to restore the voting rights of felons for federal elections. The American people and their freely elected state representatives must make their own decisions in their own states about when felons should have their civil rights restored, including the right to vote. Requiring a waiting period and an application process is fair and reasonable given the high recidivism rate among felons. Any legislation passed by Congress taking away that power is both unconstitutional and unwise public policy.

Policy Arguments in Favor of Felon Disenfranchisement

Those who are not willing to follow the law cannot claim a right to make the law for everyone else. And when an individual votes, he or she is indeed either making the law—either directly in a ballot initiative or referendum or indirectly by choosing lawmakers—or deciding who will enforce the law by choosing local prosecutors, sheriffs, and judges.

Not everyone in the United States may vote: Thus, children, noncitizens, and those who are adjudicated to be mentally incompetent are not allowed to vote. This nation maintains certain minimum, objective standards of responsibility, trustworthiness, and commitment to our laws for those who are allowed to participate in the solemn enterprise of self-government. It is not unreasonable to suppose that those who, regardless of their race, have committed serious crimes against their fellow citizens may also be presumed to lack this responsibility, trustworthiness, and commitment to America’s laws.

Is it too much to demand that those who would make the laws for others—who would participate in self-government—be willing to follow those laws themselves? …

Thus, even if Congress had the constitutional authority to pass this legislation, there are sound public policy reasons why it should not do so. …

Answering the Policy Arguments Against Felon Disenfranchisement

The policy arguments in favor of automatically restoring the rights of all felons to vote are unpersuasive.

“We let everyone else vote.” Again, this is simply not true. America also denies the vote to children, noncitizens, and the mentally incompetent because they, like felons, fail to meet the objective, minimal standards of responsibility, trustworthiness, and commitment to our laws that we require of those who want to participate in the government not only of themselves, but also of their fellow Americans.

“Once released from prison, a felon has paid his debt to society and is entitled to the full rights of citizenship.” This rationale would apply only to felons who are no longer in prison, of course, and might not apply with respect to felons on parole or probation, but even for these “former” felons, the argument is not persuasive. While serving a sentence discharges a felon’s “debt to society” in the sense that his basic right to live in society is restored, serving a sentence does not require society to forget what he has done or bar society from making reasonable judgments based on his past crimes.

For example, as noted, federal law prohibits felons from possessing firearms or serving on juries, which does not seem unreasonable. In fact, as also previously noted, there is a whole range of “civil disabilities” (known as collateral consequences) for felons after their release from prison that apply as a result of federal and state law, listed in a 144-page binder (plus two appendices) published by the U.S. Justice Department’s Office of the Pardon Attorney. Society is not required—nor should it be required—to ignore someone’s criminal record once he gets out of prison.

 “These laws have a disproportionate racial impact.” Undoubtedly, the reason that there is heightened interest in this subject is that a large percentage of felons are African Americans, although in absolute numbers, more whites are affected by felon disenfranchisement than blacks. That is because whites represent a majority of the individuals in state and federal prisons, according to the U.S. Justice Department, and have held that majority since Justice began keeping such records in 1926.

The racial impact of these laws is irrelevant as a constitutional matter. It should also be irrelevant as a matter of policy. Legislators should determine, based on non-racial considerations, what the qualifications or disqualifications for voting are and then let the chips fall where they may. In The Souls of Black Folk, W.E.B. Du Bois wrote: “Draw lines of crime, of incompetency, of vice, as tightly and uncompromisingly as you will, for these things must be proscribed; but a color-line not only does not accomplish this purpose, but thwarts it.” As a federal court said in an unsuccessful lawsuit against Florida’s felon voting law:

[Black ex-felons had] not been denied the right to vote because of an immutable characteristic but because of their own criminal acts. This is also true of the non-African American class members. Thus, it is not racial discrimination that deprives felons, black or white, of their right to vote but their own decision to commit an act for which they assume the risks of detection and punishment.

The fact that these statutes disproportionately disenfranchise men and young people is not cited as a reason for changing them—as “sexist” or “ageist”—nor does it matter that some racial or ethnic groups may be more affected than others. That criminals are “overrepresented” in some groups at some point in time and “underrepresented” in others is no reason to change the laws. This will probably always be the case, with the groups changing over time and with the country’s demography. If large numbers of young people, black people, or males are committing crimes, then our efforts should be focused on solving those problems.

The answer to that problem is not to increase the political power of criminals.

Much has been made of the high percentage of criminals—and, thus, disenfranchised people—in some communities, but the fact that the effects of disenfranchisement may be concentrated in particular neighborhoods is actually an argument in the laws’ favor. If these laws did not exist, there would be a real danger of creating an anti–law enforcement voting bloc in local municipal elections, for example, which is hardly in the interests of a neighborhood’s law-abiding citizens who are victimized by such felons.

Indeed, the people whose votes will be diluted the most if criminals are allowed to vote will be law-abiding people in high-crime areas—people who are themselves often disproportionately poor and minority. Liberal civil-rights groups lobbying against felon disenfranchisement seem to have less concern for those victims.

“We should welcome felons back into the community.” Because the racial and other arguments are so unpersuasive, it is more and more frequently argued that re-enfranchising felons is a good way to reintegrate them into society. Attorney General Eric Holder has even claimed that felon disenfranchisement laws promote recidivism. As former Attorney General Michael Mukasey has pointed out, however, that claim, which derives from a study in Florida, is flawed:

Florida has had, and indeed has broadened, a system that requires felons to go through an application process before their voting rights are restored. Obviously, those who are motivated to navigate such a process self-select as a group less likely to repeat their crimes. Suggesting that the automatic restoration of voting rights to all felons would lower recidivism is rather like suggesting that we can raise the incomes of all college students if we automatically grant them a college degree—because statistics show that people with college degrees have higher incomes than those without them.

Reintegration of felons into the community is an important goal, and this paper recognizes that restoration of voting rights can be a part of that process. Conversely, it is also important not to suggest to felons that it is hopeless for them to want to rejoin that community.

But restoration of voting rights should be done carefully and on a case-by-case basis once the felon can establish in fact that he has turned over a new leaf. When that has been shown, then holding a ceremony—rather like a naturalization ceremony—in which the felon’s voting rights are fully restored would be moving and meaningful. Restoration, however, should not be automatic, because the change of heart cannot be presumed. After all, the unfortunate truth is that most people who walk out of prison will be walking back in eventually.

Automatic felon re-enfranchisement sends a bad message: It says that Americans do not consider criminal behavior so serious that the right to vote should be denied because of it. Not allowing criminals to vote is also a form of punishment and a method of stigmatization that tells criminals that committing a serious crime puts them outside the circle of responsible citizens. Being readmitted to the circle should not be automatic.
While it is true that a disproportionate number of African Americans are being disenfranchised for committing serious crimes, their victims also are disproportionately black. The logical focus of an organization like the NAACP should be on discouraging the commission of such crimes rather than minimizing their consequences.


Congress does not have the power to force states to allow felons to vote in federal elections. The Constitution, including the Fourteenth Amendment, specifically delegates to the states the right to determine the qualifications of voters and to disqualify anyone who participates “in rebellion, or other crime.” Congress cannot override the Constitution through legislation and has no authority to restore the voting rights of felons for federal elections.

Thus, the American people and their freely elected state representatives must make their own decisions in their own states on when felons should have their civil rights restored. This includes the right to vote. Requiring a waiting period and an application process is fair and reasonable given the high recidivism rate found among felons. Any legislation passed by Congress to take away that power is both unconstitutional and unwise public policy.

The Felon Vote

Last Friday, Virginia governor Terry McAuliffe signed an order that reenfranchised over 200,000 felons in that state.  This week I’m devoting my email to two pieces I wrote in response, one for the New York Times (addressing the issue of felon voting in general terms) and the other, with Hans von Spakovsky, for National Review Online (which focused on Virginia in particular).

First, here’s what I said in the New York Times:
We have certain minimum standards of responsibility and commitment to our laws before entrusting someone with a role in the solemn enterprise of self-government. People who commit serious crimes against their fellow citizens do not qualify.

The right to vote should only be restored to felons on a case-by-case basis after a person has shown that he or she has truly changed.

More succinctly, if you won’t follow the law yourself, then you can’t make the law for everyone else, which is what you do – directly or indirectly – when you vote.

The right to vote can be restored to felons, but it should be done carefully, on a case-by-case basis after a person has shown that he or she has really turned over a new leaf, not automatically on the day someone walks out of prison. The unfortunate truth is that most people who walk out of prison will be walking back in.

The arguments in favor of automatic felon voting are unpersuasive. The fact that a disproportionate number of felons at some point in time belong to a particular racial group does not make disenfranchisement racist, just as most felons being male and young does not make these laws sexist or ageist. And while a disproportionate number of felons are black, their victims likewise are disproportionately black, so minimizing the consequences of crime and empowering criminals also has a disparate impact on their law-abiding African-American neighbors.

If there were any evidence that a state’s disenfranchisement law is truly discriminatory, it would be considered unconstitutional under Supreme Court rulings. The fact that it has been years since such laws have been successfully challenged in court – despite there being no shortage of organizations, starting with the Obama administration’s Justice Department and the Democratic Party, that would be eager to do so – shows this evidence is nonexistent.

It’s claimed that, once released, felons should be re-enfranchised because they have “paid their debt to society.” But this phrase is misleading, since in many respects we don’t ignore a criminal past – for example, in allowing someone to buy a gun.

Finally, it’s argued that re-enfranchisement may speed the reintegration of felons into civil society. But automatic re-enfranchisement actually misses the opportunity to do so.

A better approach is to wait some period of time to ensure that the felon has actually turned over a new leaf. At that point, a ceremony – rather like a naturalization ceremony – where he is congratulated in front of friends and family and re-enfranchised would be moving and meaningful.

And here’s my piece for National Review Online:

In what is likely an unconstitutional state action seemingly calculated to ensure that the purple state of Virginia goes blue in the November election, Governor Terry McAuliffe (D.) signed an order on Friday restoring the voting rights of 206,000 ex-felons in Virginia, including those convicted of murder, armed robbery, rape, sexual assault, and other violent crimes. The order also restores their right to sit on a jury, become a notary, and even serve in elected office.

McAuliffe believes that ex-felons can be trusted to make decisions in the ballot booth and the jury box but apparently not to own a gun. He draws the line at restoring their Second Amendment rights; that would be a bridge too far. His order specifically does not restore their “right to ship, transport, possess, or receive firearms.” And while his order requires that felons complete probation and parole before enjoying restoration of their rights, it applies regardless of whether they have paid any court fines or restitution to victims.

What McAuliffe entirely dismisses is the principle that if you won’t follow the law yourself, you can’t demand a role in making the law for everyone else, which is what you do when you vote. Restoring a felon’s right to vote should be done not automatically, as soon as he has completed his sentence, but carefully, on a case-by-case basis, after he has shown that he has really turned over a new leaf. The unfortunate truth is that many people who walk out of prison will be walking back in; recidivism rates are high. We have both testified before Congress and written about this problem. Governor McAuliffe may be happy as long as the ex-felons who can now vote just don’t walk back into prison before November.

Having a waiting period, examining each ex-felon’s application for restoration of rights carefully and individually, and differentiating between violent and nonviolent crimes is exactly the system that Virginia had — at least until Friday’s order. In a three-page summary released by the governor’s office, McAuliffe asserts that any claim that he doesn’t have the authority to grant a blanket restoration of rights is “far-outside the weight of constitutional authority across the nation and would read into the text of the Virginia Constitution words that simply are not there.” This is just legal gibberish — the weight of constitutional authority “across the nation” has no bearing on interpreting the Virginia constitution. McAuliffe is reading into that constitution authority he does not have.

That isn’t just our opinion; it is the opinion of prior governors and attorneys general of both political parties. For example, on January 15, 2010, Mark Rubin, the counselor for former Virginia governor Tim Kaine (D., now a U.S. senator), sent a letter on the governor’s behalf to the ACLU, saying that Kaine did not have the executive power “to grant a blanket restoration of voting rights,” which the ACLU had requested. Kaine supported restoration of voting rights but refused to act because his counsel’s view was that the “better argument” was that the powers in the Virginia constitutional provision on clemency (Article 5, Section 12) “are meant to apply in particular cases to named individuals.” In fact, “a blanket order restoring the voting rights of everyone would be a rewrite of the law. . . . The notion that the Constitution of the Commonwealth could be rewritten via executive order is troubling.”

Similarly, then–attorney general Ken Cuccinelli (R.) appointed the Rights Restoration Advisory Committee to examine this issue. The committee included not only several Commonwealth Attorneys (i.e., the district attorneys of Virginia counties) and a professor from George Mason University but also Ashley Taylor Jr., a former commissioner on the U.S. Commission on Civil Rights, and Paul Goldman, the former senior adviser to Doug Wilder (D.), the first African-American governor of Virginia.

On May 10, 2013, the committee issued a report concluding that the governor does not have constitutional authority to “institute by executive order” a complete “restoration of rights for all convicted felons in the Commonwealth of Virginia.” Why? Because his clemency power in Article 5 must be harmonized with Article 2, Section 1, which provides that “no person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored.” If, instead of acting individually to consider each “person” and “his civil rights,” the governor issues a blanket restoration, such “altering [of] the public policy of the Commonwealth as regards the disenfranchisement of persons convicted of felonies clearly would be a legislative act, not an administrative act.”  It would be “difficult” for a court to “sustain a Governor’s exercise of [his] clemency power in so sweeping a manner that the Constitution’s general policy of disenfranchisement of felons is voided.”

Yet that is exactly what McAuliffe attempts to do through his executive order, in a violation of the separation of powers. He is acting like a superlegislator in voiding the policy that has existed in Virginia “in one form or another since the [Virginia] Constitution of 1830,” according to the Cuccinelli’s report. (The New York Times incorrectly reported that the policy dated only to the Civil War; the Richmond Times-Dispatch, to the state’s 1902 constitution. Conversely, the current constitution was actually written in 1971, and no evidence has been cited that there was any discriminatory intent in it.)

As was completely predictable, McAuliffe played the race card on Friday, saying he was rectifying Virginia’s “long and sad history” of suppressing African-American voting power. This is a bogus and demagogic claim about a policy that applies equally to all felons regardless of race and that was established when black Virginians couldn’t even vote. Similar false claims about the history and origin of felon disenfranchisement have been made in numerous discrimination lawsuits that have been filed under the Voting Rights Act but have been uniformly unsuccessful.

Supreme Court precedent is that such a provision can be overturned as unconstitutional if it was adopted or applied with a racially discriminatory intent. If evidence existed that the Virginia law was racially discriminatory in its origins or application, many well-funded civil-rights advocacy organizations, as well as the U.S. Department of Justice, would be eager to challenge it. The lack of successful challenges in Virginia indicates that such evidence does not exist. As always, liberals want to equate disparate impact with racial discrimination, and it just ain’t so.

It is estimated that McAuliffe’s action will add 3.8 percent to the 5.4 million registered voters in Virginia. That may not seem like a lot, but McAuliffe knows very well that Virginia today is a swing state with recent statewide elections that have been decided by a very small margin. In 2013, the current attorney general, Mark Herring (D.), won his race by only 907 votes. Former Virginia governor Bob McDonnell (R.) won his prior post as attorney general by only 360 votes in 2005. Even the Washington Post, which applauded McAuliffe’s action, acknowledged there is “no doubt” about the “political dimension” in this move by “a Democrat and longtime friend and fundraiser for Bill and Hillary Clinton” — namely, that it “grant[s] Democrats a crucial edge in a swing state ahead of November’s presidential election.”

McAuliffe is continuing a pattern. Last year he vetoed a bill that would have helped clean up voter-registration lists. The bill required county court clerks to send to local election officials information about individuals who were excused from jury duty because they were not U.S. citizens or were no longer residents of Virginia. McAuliffe seems intent on making sure that ineligible and illegal voters can continue to vote.

He is following the example set by President Obama: If you don’t like a law or a constitutional limit on your authority, just ignore it. Rewrite, change, or bend it. The New York Times inadvertently gave the game away when it said that McAuliffe’s “action effectively overturns a Civil War–era provision in the state’s Constitution.”

McAuliffe’s willingness to do anything (and to say anything) to achieve partisan political goals shows a complete contempt for the rule of law and for the constitutional republic that is the United States. What a sad day for the great state that was the home of Thomas Jefferson, Patrick Henry, James Madison, George Mason, and the father of our country, George Washington.

Felon voting

It’s an election year, and every election year there is an uptick in the attention given to one of the Center for Equal Opportunity’s issues:  when felons ought to be allowed to vote.


Hang in There, Governor Hogan

Gov. HoganThe Maryland state legislature is back in session, and the Democrats have announced that one of their priorities is overriding Governor Larry Hogan’s veto last year of a bill that would automatically re-enfranchise felons when they are released from prison, even if they are still on parole or probation (Maryland already automatically re-enfranchises felons once they are no longer on probation or parole). Governor Hogan is adamant that this is a bad bill.

And Governor Hogan is right, so here’s hoping that the scheduled veto-override effort fails in the state senate this week (alas, the override passed the house last month, with the bare minimum 3/5 majority required). 

If you aren’t willing to follow the law yourself, then you can’t demand a role in making the law for everyone else, which is what you do when you vote. We don’t let everyone vote — not children, not non-citizens, not the mentally incompetent, and not felons — because we have certain objective, minimum standards of responsibility and commitment to our laws that must be met before someone is given a role in the solemn enterprise of self-government. People who have committed a serious crime against their fellow citizens don’t meet those standards.

The right to vote can be restored to felons, but it should be done carefully, on a case-by-case basis after a person has shown that he or she has really turned over a new leaf, not automatically on the day someone walks out of prison — let alone when parole and probation have not yet been served. After all, the unfortunate truth is that most people who walk out of prison will be walking back in. Deep down, the Left knows all this; that’s why, though it is happy to let felons vote, it is somehow reluctant to restore their Second Amendment rights.   

The Maryland bill’s proponents can’t make the (lame) argument in this case that the felon has “paid his debt to society” because he hasn’t, so now they are arguing that re-enfranchisement leads to less recidivism. But there is no persuasive evidence that this is so, and in fact the claim confuses cause and effect. That is, the people who have turned over a new leaf do not commit crimes, and so they have had their right to vote restored and they vote; they do not decide to turn over a new leaf because their right to vote has been restored.

Thus, while it is frequently claimed that a Florida study supports re-enfranchisement, former attorney general Michael Mukasey has pointed out that this claim is flawed:

Florida has had, and indeed has broadened, a system that requires felons to go through an application process before their voting rights are restored. Obviously, those who are motivated to navigate such a process self-select as a group less likely to repeat their crimes. Suggesting that the automatic restoration of voting rights to all felons would lower recidivism is rather like suggesting that we can raise the incomes of all college students if we automatically grant them a college degree—because statistics show that people with college degrees have higher incomes than those without them.

Another claim being made by the bill’s proponents is that felons should be able to vote since they pay taxes.  But this argument proves too much:  Felons are subject to taxes (for example, on investments or other income) when they're in prison, too, and taxes are also paid by nonvoters like children, noncitizens, and the mentally incapacitated.
I have written more about this issue here.  Hang in there, Governor Hogan!

Rand Paul on Drugs – At last week’s presidential debate in Iowa, Rand Paul said that, because people of different races use drugs at about the same rate but African Americans disproportionately make up people in prison for drug offenses, this suggests there is racism in the criminal-justice system.  But this is wrong both factually and logically, as I discuss here.

And Equal Time for the Democrats – And at a recent debate among the Democratic presidential candidates,Hillary Clinton made disturbing remarks on race and crime. Her claims of  “systemic racism” in our criminal justice system and suggestion that it has resulted in an open season on young black men is uninformed, divisive, and irresponsible. I would add that Bernie Sanders’s claim that there should be an attorney general’s investigation whenever anyone dies in police custody is eyebrow-raising, as is his demand that police forces reflect the demographic makeup of the citizenry (quotas, anyone?).

Let’s Make a Deal, Bernie – Free tuition at Harvard, in exchange for more transparency in admissions:  with an eye, in particular, on stopping racial admissions discrimination.  Read all about the intriguing new campaign in this New York Times article.

More about “What Candidates Can Do” – Peter Wood, who is president of the National Association of Scholars (and frequent ally of the Center for Equal Opportunity), recently encouraged the presidential candidates to opine – and opine wisely – on higher education issues.  With regard to his Item #3 (“End higher education’s destructive focus on race”), I’d like to point out two specific proposals that have been made, along the lines of the legislation that Peter discusses.

First, Professor Gail Heriot, another CEO ally (who moonlights as a member of the U.S. Commission on Civil Rights), had an excellent Wall Street Journal op-ed last year that made two important points.  The first is that the “mismatch” that results from racial preferences in university admissions is an important factor in the relative dearth of African American graduates in the STEM disciplines.  But the second is that, while some of the pressure to use these preferences is self-imposed, a lot of it is not — and, in particular, much of it comes from accrediting agencies.  She calls on Congress to step up to the plate and “prohibit[] accreditors from wading into student-body diversity issues.”  Those interested in more information about what Congress should do on this can read Professor Heriot’s additional words of wisdom here and here.

Second, as long as university officials take race and ethnicity into account in admissions decisions, a bill requiring publication of the use of such preferences is necessary. Such a bill would require universities that receive federal funding to report annually and in detail on whether and how race, color, and national origin factor into the student admissions process. The Supreme Court has, alas, upheld such discrimination as constitutionally permissible, at least for now, but this is supposedly subject to numerous restrictions.  So even if some insist that taxpayer-funded universities should continue to practice racial discrimination in admissions, there’s no justification for it being done secretly and illegally – that is, without public disclosure and without taking pains to satisfy the Supreme Court’s requirements.  Senator Lamar Alexander (R-TN), who chairs the relevant Senate committee and is an outspoken critic of racial preferences, ought to be supportive; so should his House counterpart, Rep. Virginia Foxx (R-NC); the U.S. Commission on Civil Rights endorsed this approach, including “sunshine” legislation, as a recommendation to the President and Congress in a 2006 report; and Rep. Steve King (R–IA) has on more than one occasion introduced legislation like this.  You can find a draft of the bill (the “Racial and Ethnic Preferences Disclosure Act of 2014″) and more discussion here.

Two Things – Two short items to wrap things up with. 

First, the Chronicle of Higher Education has done all of us a great favor by collecting a baker’s dozen of its favorite Onion pieces on higher education topics.  My favorite is #8:  “Minority Student’s Perspective Better Be Pretty Goddamn Diverse If He Wants Full Scholarship.”  Many a truth was spoken in jest, and many of the truths the Onion speaks here are politically incorrect.

On the other hand, Inside Higher Ed did no one a favor by printing yet another slam against what are called “colorblind” practices — and on Martin Luther King Day, no less.  Here’s my posted response:

Three points. First, with regard to hiring and promoting faculty (as opposed to the admission of graduate students), it is almost always illegal to use preferences based on race, ethnicity, and sex. See here.

Second, while unfortunately such discrimination is allowed in student admissions, it is increasingly (and rightly) disfavored and will be barred sooner or later; and not only is the article correct in its concession that there has been no court decision banning admission practices that have only a “disparate impact,” it is extremely unlikely that any court would do so, since the Supreme Court has said that the applicable federal laws (the Constitution and Title VI of the 1964 Civil Rights Act), ban only “disparate treatment” and not mere “disparate impact.”

Third, it is laudable to be aggressive in rooting out actual discrimination, but discrimination against anyone because of race or ethnicity should be rejected; likewise, it is also fine to get rid of admissions criteria that eliminate students who are actually better qualified than those who are actually chosen, but those criteria should be eliminated because they are defective, not because they have a particular racial and ethnic result: If a criterion were disqualifying white or Asian students who were better qualified than black and Latino students who were actually chosen, that criterion should discarded, too.

Answering the Challenges to Felon Disenfranchisement

Why should felons not be allowed to vote?

            Because 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, loyalty, and responsibility, and those who have committed serious crimes against their fellow citizens don’t meet those standards.

Shouldn’t some felons be allowed to vote?
            Yes, and some shouldn’t.  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.


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.

Should the feds require U.S. ballots to be printed in foreign languages?

Last week I participated in a Federalist Society discussion on voting issues, and pointed out there the policy and constitutional problems with Section 203 of the federal Voting Rights Act. That statute requires some jurisdictions to print ballots and offer election­-related materials in foreign languages. As a constitutional matter, this provision raises serious federalism concerns and equally serious concerns about Congress exceeding its authority to enforce the right to vote regardless of race. Its constitutionality aside, this provision is also objectionable on a variety of policy grounds.

I thought that I would use this week’s email to elaborate on all this. The discussion below follows testimony that the Center for Equal Opportunity has given to Congress, which in turn we used for an article in the Georgetown Journal of Law & Public Policy, and a chapter in the book The Most Fundamental Right.

*          *          *

Introduction.  At a time when the nation is struggling to assimilate a substantial and concentrated number of Spanish­-speaking immigrants, Section 203 sets back their full participation in the American political community by discouraging English acquisition and requir­ing, in instances where there are substantial concentrations of foreign-language speakers, the provision of foreign-language ballots. On policy grounds, these judgments are lamentable. Rather than encourag­ing ethnic integration, they promote balkanization through foreign ­language ballots, as well as by perpetuating the racial gerrymandering and racial segregation that is now an inextricable by-product of the Section 5 preclearance process.

Section 203 requires certain jurisdictions to provide all election-related mate­rials, as well as the ballots themselves, in foreign languages. The jurisdictions are those where more than five percent of the voting-age citizens (or simply 10,000 of them) are members of a particular language minority, and where the illiteracy rate of such persons is higher than the national illiteracy rate. The language minority groups are limited to American Indians, Asian Americans, Alaskan Natives, and those “of Spanish heritage.” Where the language of the minority group is oral or unwritten, then oral voting assistance is required in that language.

Again, there are three policy problems with Section 203. First, it encourages balkanization. Second, it facilitates voter fraud. And, third, it wastes government resources. In addition, Section 203 is unconstitutional because, although Congress asserts it has enacted this law pursuant to its enforcement authority under the Fourteenth and Fifteenth Amend­ments, in fact this statute actually exceeds that authority.

*          *          *

Balkanization. America is a multiethnic, multiracial nation. This in increasingly so, as dramatized by the fact that we now have a multiethnic, multiracial president. Our country always has been multiethnic and multiracial, of course, and this is a source of national pride and strength. But our motto has been E pluribus unum--outof many, one--and this means that, while we come from all over the globe, we are also united as Americans.

This unity means that we hold certain things in common. We celebrate the same democratic values, for instance, share the American dream of success through hard work, cherish our many freedoms, and champion political equality. Our common bonds must also include an ability to communicate with one another. Our political order and our economic health demand it.

Accordingly, the government should be encouraging our citizens to be fluent in English, which, as a practical matter, is our national language. And, in any event, the government certainly should not discourage people from mastering English, and should not send any signals that mastering English is unimportant. Indeed, doing so does recent immigrants no favor, since true participation in American democracy requires knowing English.

Inevitably, however, the federal government engages in just that kind of discouragement when it demands that ballots be printed in foreign languages. It also devalues citizenship for those who have mastered English as part of the naturalization process. As Boston University president John Silber noted in his 1996 congressional testimony, bilingual ballots “impose an unacceptable cost by degrading the very concept of the citizen to that of someone lost in a country whose public discourse is incomprehensible to him.”

*        *        *

Voter fraud. Most Americans are baffled by the foreign-language ballot law. They know that, with few exceptions, only citizens can vote. And they know that, again with only few exceptions, only those who speak English can become citizens. So why is it necessary to have ballots printed in foreign languages?

It is a good question, and there really is no persuasive answer to it. As a practical matter, there are very few citizens who need non-English ballots.

There are, however, a great many noncitizens who can use non-English ballots. And there is an obvious interest--by federal, state, and local governments, and by legitimate voters themselves--in preventing fraudulent voting.

*          *          *

Wasting taxpayers’ money. As just noted, there are few citizens who need ballots and other election materials printed for them in languages other than English. The requirement that, nonetheless, such materials must be printed is therefore wasteful.

On the one hand, the cost of printing the additional materials is high. It is a classic, and substantial, unfunded federal mandate. Fre­quently the cost of multilingual voter assistance is more than half of a jurisdic­tion’s total election costs. If corners are cut, the likelihood of translation errors increases. Indeed, the inevitability of some translation errors, no matter how much money is spent, is another argument for why all voters need to master English rather than rely on translated ballots and election materials.
Conversely, the use made of the additional materials is low. According to a 1986 General Accounting Office study, nearly half of the jurisdictions that provided estimates said no one--not a single person--used oral minority ­language assistance, and more than half likewise said no one used their written minority-language assistance. Covered jurisdictions said that generally lan­guage assistance “was not needed” by a 10-1 margin, and an even larger majority said that providing assistance was either “very costly or a waste of money.” The problem may be aggravated by the dubious way in which non-English-proficient voters are identified by the Census.
What’s more, to quote John J. Miller’s The Unmaking of Americans, getting rid of foreign-language ballots “does not mean that immigrant voters who still have difficulty communicating in English would not be without recourse. There is a long tradition in the United States of ethnic newspapers--often printed in languages other than English--providing political guidance to readers in the form of sample ballots and visual aids that explain how to vote. It would surely continue.” Mr. Miller concluded that “Congress should amend the Voting Rights Act to stop the Department of Justice from coercing local communities to print election materials in foreign languages.”
In sum, as a simple matter of dollars and cents, foreign-language ballots are just not worth it. The money would be much better spent on improving election equipment and combating voter fraud.
*          *          *
Constitutional Issues.  Section 203 raises constitutional issues for two reasons, which indeed may create judicial concerns greater than their sum alone. First, there are federalism concerns insofar as it substitutes federal for state authority in areas traditionally--and, often, textually, by the language of the Constitution itself--committed to state discre­tion. These federalism concerns are heightened by the fact that some jurisdictions are covered and others are not, especially if there is no compelling factual justifica­tion for the distinction or for the requirement at all. Second, it is unlikely that Section 203 is a “congruent and proportional”--the relevant legal standard--means to enforcing the Fourteenth or Fifteenth Amendments.
The Supreme Court’s more recent decisions make clear that Section 203 is inconsistent with principles of federalism and limitations on Congress’s authority, particularly because it is not needed to stop disparate racial treatment--and, indeed, is contrary to the idea of E pluribus unum. Section 203 of the Voting Rights Act is not fashioned to do the best job it can to guarantee the right to vote regardless of ethnicity, and does so in a way that is inconsistent with principles of federalism--which, after all, is also a bulwark against government abridgment of our rights as citizens.  The Supreme Court’s federalism concerns in this area were the focus of much of the Court’s opinion in Shelby County v. Holder.
In sum: The Supreme Court has now made clear that only purposeful discrimination--actually treating people differently on the basis of race or ethnicity--violates the Fourteenth and Fifteenth Amendments. The Court has ruled even more recently that Congress can use its enforcement authority to ban actions that have merely a disparate impact only if those bans have a “congruence and proportionality” to the end of ensuring no disparate treatment. This limitation is likely to be even stricter when the federal statute in question involves areas usually considered a matter of state authority.
Now, it is very unlikely that the practice of printing ballots in English and not in foreign languages would be a violation of the Fourteenth or Fifteenth Amend­ments--that is, it is very unlikely that this practice is rooted in a desire to deny people the right to vote because of race or ethnicity. Rather, it is overwhelm­ingly likely to have perfectly legitimate roots: to avoid facilitating fraud, to discourage balkanization, and to conserve scarce state and local resources. Accordingly, Congress cannot plausibly assert that, in order to prevent discrimination in voting, it has authority to tell state and local officials that they must print ballots in foreign languages.
The rather garbled text of Section 203, however, apparently says that Con­gress was concerned not with discrimination in voting per se, but with educa­tional disparities. That is, the “unequal educational opportunities” that, say, Latinos receive is what makes foreign-language ballots necessary.
Today, however, it is unlikely that most educational disparities are rooted in discrimination. And, if these disparities are not rooted in discrimination, then there is a problem with Congress asserting its power under Section 5 of the Fourteenth Amendment or Section 2 of the Fifteenth Amendment to require foreign-language ballots. In this regard, it is worth noting that the language of Section 203 uses words like “effectively” and “resulting”--words used when disparate treatment is lacking.
And finally, can it really be plausibly argued that the real reason for Section 203 has anything to do with remedying state discrimination in education? With all respect, the answer must be no. As discussed in Linda Chavez’s Out of the Barrio, the Voting Rights Act of 1965 was motivated by a desire to stop racial discrimination; but the later expansion of the Voting Rights Act at the behest of Latino special interest groups was simply about identity politics. There was little factual record established even to show that Hispanics were being systematically denied the right to vote. This disenfranchisement would have been particularly difficult to demonstrate in light of the number of Hispan­ics who had previously been elected to office, which included governors, U.S. Senators, and members of the House of Representatives, as well as numerous state legislators and local officials, with many of these officials serving in jurisdictions that would be subject to the special provisions of the Voting Rights Act. There is really no credible way to equate the discrimination that African Americans in the South suffered to the situation of Latinos, who had voted--and been elected to office--in great numbers for decades. That was true when Section 203 was first enacted, and it is even truer now. The reason for the bilingual ballot provision is not and never has been about discrimination--it is about identity politics.