Debate: States Must Decide on Felon Voting Rights

(April 1) -- The idea that felons ought to be able to vote once they've been released from prison may have some surface appeal. After all, these are people who have done the time for their crimes.

But the latest effort in Washington to automatically restore the right of convicted criminals to vote is both bad public policy and unconstitutional.

The misnamed Democracy Restoration Act, sponsored by Rep. John Conyers, D-Mich., (whose wife is a felon) would force all states to immediately restore the voting rights of convicted felons the moment they leave prison -- even if they're on probation or have paid none of the civil penalties imposed on them.

There are many consequences from a criminal felony conviction. There may be prison time, court costs and restitution, and parole or probation. Our society has also decided that a felon may lose the ability to own a gun, work as a police officer or schoolteacher, and serve in elected office or on a jury. Prison time isn't the only way a felon pays his debt to society for breaking the law and killing, injuring or endangering his fellow citizens.

Still, many states today automatically restore the right to vote when a felon leaves prison. Some require completion of the entire sentence, including probation and payment of restitution. Others, such as Virginia, require an application. This provides the state with an individualized review to determine if the felon has fully paid his debt and changed his ways.

The Democracy Restoration Act would override these state policies at the expense of victims who are still owed restitution, and grant relief on a wholesale basis, without considering whether someone is really entitled to restoration of his voting rights.

The legislation says these state laws "serve no compelling interest." Yet the bill doesn't restore any of the other rights felons lose. So the sponsors trust murderers, rapists, child molesters and terrorists enough to vote, but not enough to restore the other rights and privileges of a citizen, like serving on a jury.

The claim that these felon voting laws are rooted in racial discrimination is also historical fiction. Even before the Civil War, when most blacks were slaves and could not vote, a majority of states had such laws aimed at preventing white felons from voting. Overall these laws affect more whites than blacks.

It seems, then, that the sponsors' only real interest is in harvesting more votes.

But even if it were good public policy, the bill also happens to be unconstitutional.

The 14th Amendment specifically gives the states -- not Congress -- the power to abridge the right to vote of any individual "for participation in rebellion, or other crime." Moreover, Article I of the Constitution and the 17th Amendment both provide that voters for members of Congress shall have the same "qualifications" as voters for members of state legislatures, thus explicitly giving states the power to determine those qualifications.

Congress does have the authority to alter the "times, places and manner" of holding federal elections, but that power doesn't extend to voter "qualifications." In fact, it took constitutional amendments to change state qualifications of voters to give women and 18-year-olds the right to vote.

In short, Congress can override the authority of the states only if it passes a constitutional amendment approved by the states. It cannot do so through legislation.

The bottom line is this: According to the Constitution, it is up to the people of each state to decide when felons get their ability to vote restored. Congress lacks the power to force this issue except through a constitutional amendment -- and the sponsors fear that such an amendment would never pass because they could not obtain the consent of the governed, the American people.

Hans A. von Spakovsky is a senior legal fellow at The Heritage Foundation and a former commissioner on the Federal Election Commission.


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