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November-December 2008 National Forensic League Lincoln-Douglas topic
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Resolved: In a democratic society, felons ought to retain the right to vote.
PlanetDebate.com / Lincoln-Douglas.com
Minh A. Luong & Company Tutorial:
November-December 2008 National Forensic League Lincoln-Douglas topic
Resolved: In a democratic society, felons ought to retain the right to vote.
Minh A. Luong
Author/Editor
International Security Studies
and
The Brady-Johnson Center in Grand Strategy
and
Yale Graduate School of Management (SOM)
Yale University
New Haven, Connecticut USA
<minh.a.luong@yale.edu>
Department of Political Science
and
Taubman Center for Public Policy and
American Institutions
and
Watson Institute for International Affairs
Brown University
Providence, Rhode Island
<Minh_Luong@Brown.EDU>
© 2008 Minh A. Luong and Harvard Debate, Inc., All Rights Reserved
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Resolved: In a democratic society, felons ought to retain the right to vote.
Selected Quotations
…an estimated five million people -- roughly 2.3 percent of the number of people eligible to vote -- will be barred
from voting by state laws that strip convicted felons of the franchise, often temporarily but sometimes for life.
- Brent Staples,
“How Denying the Vote to Ex-Offenders Undermines Democracy,” New York Times, 17 September 2004
It seems when you're convicted of a felony, the scarlet letter is there. You take it everywhere with you.
- Jamaica S.,
a twenty-five-year-old on probation in Tennessee who lost her right to vote
What we're seeing around the country is prosecutors, defense lawyers, judges all coming to an understanding that
just because someone has committed a crime and had to pay a price for it, doesn't mean they should be relegated
forever to second-class citizenship.
- Stephen Saltzburg, law professor at George Washington University
and chairman-elect of the American Bar Association's criminal justice section.
If we have a legal system that says if you have been to prison, we're going to make it much more difficult, if not
impossible, to have housing and a job, it's a counterproductive policy.
- Gabriel "Jack" Chin,
professor at the University of Arizona Rogers College of Law
We're supposed to live in a society where if a person does the crime, they do the time. That's not the reality. You do
the crime, but you continue to do the time, sometimes for the rest of your life,
- Jesselyn McCurdy,
legislative counsel with the American Civil Liberties Union
Voting is not a privilege but a responsibility that each and every American bears. Allowing prisoners and exconvicts to vote will keep us honest. The laws, good and bad, affect them as much if not more than the rest of us. And
voting will not give them more money or freedom to run the streets and commit crimes (or drink beers). Voting will
help to articulate the valid needs and perspectives of our millions of convicted felons.
- Walter Mosley
crime writer and social commentator
Once a people begins to interfere with the voting qualification, one can be sure that sooner or later it will abolish it
altogether. That is one of the most invariable rules of social behavior. The further the limit of voting rights is
extended, the stronger is the need felt to spread them still wider, for after each new concession the forces of
democracy are strengthened, and its demands increase with the augmented power. The ambition of those left below
the qualifying limit increases in proportion to the number of those above it. Finally the exception becomes the rule;
concessions follow one another without interruption, and there is no halting place until universal suffrage has been
attained.
- Alexis de Tocqueville, Democracy in America (1835)
The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and
genuine elections which shall be by universal and equal suffrage and shall be held by secret ballot or by equivalent
free voting procedures."
- The Universal Declaration of Human Rights, Article 21
adopted unanimously by the United Nations General Assembly in 1948
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Resolved: In a democratic society, felons ought to retain the right to vote.
Well, why not let felons vote? Because you don’t have a right to make 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.
- Roger Clegg, President and General Counsel,
Center for Equal Opportunity, a civil-rights research organization in Falls Church, VA
14th Amendment, Article 2. Representatives shall be apportioned among the several States according to their
respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the
right to vote at any election for the choice of electors for President and Vice-President of the United States,
Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature
thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the
United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of
representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the
whole number of male citizens twenty-one years of age in such State.
- 14th Amendment to the United States Constitution
Editor’s note: boldface added for clarity
…[T]he 14th Amendment specifically permits states to disenfranchise citizens convicted of “participation in
rebellion, or other crime.”
- John H. Fund,
Columnist, American Spectator, and
author, Stealing Elections: How Voter Fraud Threatens our Democracy
As one judge noted: “Felons are not disenfranchised based on any immutable characteristic, such as reace, but on
their conscious decision to commit an act for which they assume the risks of detection and punishment.”
- John H. Fund,
Columnist, American Spectator, and
author, Stealing Elections: How Voter Fraud Threatens our Democracy
Don’t these [felon disenfranchisement] laws keep felons from rejoining society? Unfortunately, most released felons
commit more crimes, but it is ridiculous to assert that the reason they do so is that they can’t vote.
- Roger Clegg, President and General Counsel,
Center for Equal Opportunity, a civil-rights research organization in Falls Church, VA
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Resolved: In a democratic society, felons ought to retain the right to vote.
In This Topic Briefing…
Cover page
1
Selected quotations
2-3
In This Topic Briefing (aka the Table of Contents)
4
A Note from the Editor
5
Topic in Context
6
Topic Briefing and Strategy Notes
8
Definitional Concepts and Definitions
11
Strategies and Arguments
Affirmative
13
Negative
15
Sources
18
Selected Evidence on the Topic
22-60
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Resolved: In a democratic society, felons ought to retain the right to vote.
A Note from the Editor
The final National Forensic League Lincoln-Douglas debate topic of 2008 is Resolved: In a
democratic society, felons ought to retain the right to vote. While it is easy to interpret the topic in a
narrow fashion, like the September-October 2008 topic, debaters, coaches, and judges will find that this
topic is much broader than initially expected. In fact, even though we try to edit each PlanetDebate L-D
tutorial to between 40-45 pages, this tutorial is one of our longest ever at 60 pages!
This topic addresses one of the most fundamental rights and responsibilities in a democratic society –
the right to vote. While the Greeks started the first democratic experiments around 508 BC by giving the
right to vote to free, property-owning males, modern democratic societies have comparatively few
restrictions on a citizen’s right to vote. One significant restriction in the U.S., however, is that many
felons – criminals who are convicted of a major crime such as rape, murder, kidnapping, grand theft, and
drug offenses – lose their right to vote, even after finishing their sentences.
This topic briefing seeks to give you a philosophical and policy-relevant introduction to a deceptively
broad topic that has many applications in the legal and public policy realms. I thank my colleagues in the
legal and public policy communities – representing a broad political spectrum – for their invaluable
comments and suggestions on early versions of this topic tutorial.
Rick Brundage, nationally recognized coach and Yale Ivy Scholars Program senior instructor,
continues to play a key role on our research and analytic team here at PlanetDebate.com. Rick concluded
a successful tenure as Lincoln-Douglas debate coach at the Harker School (CA) and graduated with his
Master of Public Administration (MPA) degree at the Taubman Center for Public Policy and American
Institutions at Brown University in May 2008.
Elizabeth Bennett, doctoral student in political science at Brown University, serves as a researcher on
the PlanetDebate L-D staff. Elizabeth earned a Masters degree from the Fletcher School of Diplomacy at
Tufts University in 2008.
I am also happy to introduce Steven Liu, a senior studying business administration at the Stern School
of Business at New York University. A Yale Ivy Scholars alumnus and teaching fellow in 2007, Steven
was a top L-D competitor in the Northeast U.S. and has stayed active as an L-D coach and judge.
My colleagues and I thank you for being a PlanetDebate.com/Lincoln-Douglas.com subscriber and
appreciate your support of our project as we work to make educational materials accessible to the
broadest range of programs and students.
As always, we invite your comments and feedback, and greatly value your confidence in our project
by using our materials to help your program prepare for each National Forensic League Lincoln-Douglas
debate topic. If you have any suggestions, questions or concerns, please feel free to contact me. My email
address is minh.a.luong@yale.edu.
I will be helping run the Lincoln-Douglas tab room at the St. Mark’s Invitational in Dallas, Texas the
weekend of October 17-19th so please stop by and say hello!
With best wishes for success throughout the debate season,
Minh A. Luong
Editor
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Resolved: In a democratic society, felons ought to retain the right to vote.
TOPIC IN CONTEXT
The conflict that is raised by the resolution: Resolved: In a democratic society, felons ought to
retain the right to vote, is the debate over giving people who have been convicted of a major
crime the right to participate in self-government.
The topic focuses the debate within the context of democratic society. The meaning of the actual
term democracy, is deceptive in that the definition is simple: “rule by the people.” The Greeks of
the 5th century BC termed this dēmokratiā and while democratic states have evolved and
changed significantly through the ages, the principles of free elections, citizen voting, and selfrule have endured. While the Greeks are known for their myths and fables, their system of laws
and government was founded on reason and logic. In early civilizations, if a citizen committed a
serious crime – known as a “felony” in today’s legal terms – punishment was often exile, being
cast out of that community. England cast their felons out of the country and sent them to a
remote continent known today as Australia. While criminal exile is no longer practiced,
sentencing felons to prison and stripping them of certain rights1 are standard practices today.
The concept of “franchisement” and “disenfranchisement” are key concepts when discussing
democratic participation and voting so a brief discussion is necessary here. As political
governance evolved from monarchies (kings and queens) to more democratic forms of
government, early political philosophers such as John Stuart Mill and Jean Jaques Rosseau, and
in the 20th century, John Rawls, wrote about the social contract which also evolved from
outlining the duties and responsibilities between rulers and subjects to those between government
and citizens. It is very important for debaters to be familiar with the various social contract
theories applicable to this topic. For modern political philosophers, participation in the selfgovernance process via voting in elections is crucial as there cannot be true “majority rule” if
there was not full voter participation or at the very least, full voter eligibility (voters can choose
not to participate and that is a vote in itself, of sorts).
In the most modern sense, the concept of franchisement means promoting the broadest
participation possible within the boundaries of reason and common sense. So during the time of
the ancient Greek city-states, franchisement was very limited because only free, land-owning
males were permitted to vote. Today, most modern democracies in Asia (examples include
Japan, Taiwan, South Korea), Europe (European Union nations), and the Western Hemisphere
(Organization of American States (OAS) nations) have broad political franchisement with few
restrictions on who cannot vote.
The restriction on voter eligibility and participation is called disenfranchisement which is defined
as the government’s authority to take away the power or opportunity to vote. When applied to
convicted felons, the phrase is felon disenfranchisement. You will see these terms many times
when researching this topic.
1
Restrictions include barring felons from certain occupations such as lawyers, teachers, government administrators,
and other positions of trust or financial responsibility. Felons are also barred from owning and/or possessing
firearms and depending on certain crimes, living close to a school.
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Resolved: In a democratic society, felons ought to retain the right to vote.
The most common disenfranchisements includes citizens under a certain age (in the United
States the minimum age to vote is 18), citizens deemed mentally incompetent, persons who are
not citizens, and citizens who have been convicted of a serious crime – a felony. While the 14th
Amendment of the U.S. Constitution allows voters to be disenfranchised for “participation in
rebellion, or other crime,” the states are allowed to set their own standards.
To begin with, the definition of a felony crime varies greatly – a theft as little as $200 is
considered a felony in one state but a lesser crime, a misdemeanor, in another. Two states, Maine
and Vermont, allow felons to vote while still in prison while other states allow felons to vote
once they have been released from prison but still on parole. Some states prohibit felons from
voting until both prison and probation have been served and still a fourth category bans felons
from voting for the rest of their lives unless their right to vote has been restored by the state on a
case-by-case basis.
As one can imagine, this patchwork quilt of state laws has caused a tremendous amount of
confusion and the Brennan Center for Justice at New York University Law School found in a
recently released study (cited in the resource list below) that both felons and state elections
officials were un- or ill-informed on the eligibility of felons in their own state. The result has
been felons who were ineligible to vote being permitted to vote in elections and felons who were
eligible to vote being turned away at the polls by state elections officials. Not surprisingly,
advocates on both sides of the issue as well as constitutional scholars have been upset with the
current situation.
Supporters of felon voting argue that while society punishes those who commit serious crimes
with incarceration (prison) or heavy fines, punishment does not include annulment, revocation,
or cancellation of citizenship. Felons are still citizens and they should retain the right to vote –
either while in prison or at the very least, when they are released and complete probation.
Opponents of felon voting argue that felons ought not to have a right to make laws if they are not
willing to follow laws themselves. To participate in self-government, a citizen must be willing to
accept the rule of law.
The stakes for both sides are significant, as is the potential impact on citizen participation in
elections across the United States. Sasha Abramsky, a Senior Fellow for Democracy at the public
policy organization Demos, found that:
• In Alabama and several other Southern states, where power has shifted decisively toward the
Republican Party in recent years, as many as a third of all African American men may be
disenfranchised.
• In Virginia, over 300,000 are without the right to vote.
• Between half and three-quarters of a million Floridians are voteless because of past felony
convictions. Had 1 percent of these individuals voted in 2000, splitting sixty-forty for Gore,
the Democrats would have won the White House.
• In Washington, where the 2004 governor's race came down to a handful of votes, almost
200,000 are voteless.2
See Sasha Abramsky, Conned: How Millions Went to Prison, Lost the Vote, and Helped Send George W. Bush to
The White House, New Press, 2006. (ISBN-13: 978-1565849662).
2
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Resolved: In a democratic society, felons ought to retain the right to vote.
TOPIC BRIEFING AND STRATEGY NOTES
This resolution is a single focus, subject of evaluation type of debate topic and is well suited for
direct clash in the debate round.
We see three critical areas of debate within this resolution:
1.
2.
3.
What are the defining characteristics of a democratic society?;
What is the definition of a felony?
Discussion areas focusing on criteria that will permit/prohibit felons from voting such as
during incarceration, during probation, after all sentences served, and/or after a hearing
on a case-by-case basis; and
The debate will be settled on whether the affirmative can successfully advocate that being a
democratic society requires those societies to retain voting rights for felons.
Affirmative strategy notes:
There will be the temptation to come up with the “weakest standard” that will always prove the
resolution desirable such as allowing felons to vote after they serve their sentence and probation,
and are deemed eligible to vote after a state hearing. The problem with this approach is that this
weak standard renders most felons outside the focus of the debate and skirts the burden of the
affirmative. In practice, this standard covers very few felons in the real world.
On the other hand, defending the Maine and Vermont standard – which allows felons to vote
even while they are in prison – may be an impossible standard to justify in certain parts of the
country. It is certainly the most rigorous standard to meet and is probably the standard most in
spirit of the framers of the resolution.
The optimal approach from a strategic perspective may be between the two extremes – allowing
felons to vote after prison and parole as an automatic restoration of voting eligibility.
There will be other tendencies to construct hypothetical examples that are highly unlikely in the
real world or even border on the absurd. We believe these strategies to be problematic, however,
for several reasons:
1.
2.
3.
The examples will most likely be sensationalized;
The examples will not be typical or representative of cases that would be within the
discussion area of the resolution; and
Negatives would present counter-examples and the debate would degenerate into an
example-stacking session.
This strategy might work for the first few rounds of a tournament but there are effective negative
strategies that will render this strategy ineffective.
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Resolved: In a democratic society, felons ought to retain the right to vote.
Our informal focus groups on the topic indicate that four affirmative strategies stand out as
particularly compelling to prospective judges:
1.
Felon disenfranchisement laws effectively revoke citizenship.
This strategy was the overwhelming favorite among our panelists. When felons are stripped of
the right to vote, they no longer are citizens as one of the most important, if not the most
important, aspect of citizenship is voting in a self-governing political system. For felons living in
states which permanently bars felon voting, disenfranchisement means permanent political exile
within the country.
2.
Felon disenfranchisement laws discriminate against the uneducated and poor.
Unlike race-based arguments, the uneducated may be ignorant of the laws (the legal saying
“ignorance of the law is not a defense” is a real-world problem for the uneducated who truly are
uninformed about the law) and poor are unable to afford adequate legal counsel. For both, they
are convicted for felonies at much higher rates than educated and rich defendants who are better
able to account for their actions in front of law enforcement and a court as well as afford
effective legal counsel. For the educated and rich, many prosecutors accept plea-bargains to
avoid a lengthy trial and save resources. Those prosecutors reduce felony charges to
misdemeanors which have far fewer penalties. If a case does go to trial, rich defendants have a
much lower conviction rate and with effective legal counsel, the rich go free much more
frequently than poor defendants..
3.
Maine, Vermont, and Israel illustrate that felon voting does not incur any harms to
the democratic process
The track record of permitting felon voting in these two states and America’s closest ally
illustrates that allowing felons to retain their right to vote causes no harm to election outcomes or
the democratic process. If anything, being able to vote is one of the few empowering things an
incarcerated felon can do and it is linked to the political process that convicted that felon. This
connection could keep a felon vested and engaged in the political process whereas
disenfranchising felons might create an enemy of the political system for life.
4.
Felon disenfranchisement laws feed militant radical Islamic and hate group
recruitment within the U.S. prison system
There is some early evidence that militant radical Islamic and hate groups such as the American
Nazis and white skinheads are recruiting incarcerated felons across the United States. Although
the target populations are different, their recruitment message is strikingly similar: the American
political system as put you here in prison and stripped you of your dignity and right to
participate as a citizen. Join us and overthrow the government and we will rule!
Our initial practice debates and roundtables with eminent scholars in philosophy, law, and
political science lead us to believe that affirmatives have the best chance of winning by attacking
the consistency of the definition of “felons” and “felonies” and highlighting the inequities of
state felon disenfranchisement laws and practices across the United States. Using international
examples can be helpful but not to replace examples from the United States.
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Resolved: In a democratic society, felons ought to retain the right to vote.
Negative strategy notes:
Our informal focus groups on the topic indicate that four negative strategies stand out as
effective in negating the resolution:
1.
Felons convicted of serious crimes – rape, kidnapping, drugs, and murder – ought to
forfeit the right to self-govern.
Our panelists thought that this strategy was the most compelling of the potential negative
strategies. It highlights the seriousness of the crimes and appeals to the connection between
rights and responsibilities. In fact, in our focus group sessions, panelists thought it would be
difficult for negatives to win without including this position as a cornerstone of their strategy.
This strategy was deemed most effective in more conservative parts of the country as well as in
front of “law and order” and “eye for an eye” type judges.
2.
Committing felony crimes is a conscious decision.
Several of our panelists were emphatic that using felony conviction as a standard was the fairest
measure for disenfranchisement. People are in control of their own actions and destinies –
criminals make a conscious choice to commit a crime and at what level (misdemeanor or felony).
3.
Felony disenfranchisement laws are not racist, classist, or sexist.
A number of our panelists pointed out that here are many more law-abiding citizens who are
ethnic minorities, poor, and male, and that these so-called “factors” are really red-herrings for
failed social policies. If there are more felons of a certain minority group, perhaps it’s because
they committed crimes for self-interested reasons and got caught (and convicted). Retaining
felon’s right to vote will not miraculously make them into law-abiding citizens.
4.
Felon disenfranchisement laws protect good citizens from having their votes
“diluted”; If felons regain the right to vote, it should be made only on a case by case
basis.
Voting requires a particular measure of trustworthiness, loyalty, and responsibility and it should
be objective. Convicted felons, criminals who have committed serious crimes against their fellow
citizens, do not meet these standards. Their votes will “dilute” the votes of trustworthy citizens.
Felons ought not “retain” their right to vote; when convicted, they are disenfranchised and if they
are to “regain” their voting rights, it should be on a case by case basis only.
Use of research materials:
Because this debate topic has many stakeholders and advocacy groups, there are many resources
on this topic ranging from established authorities in academia to self-proclaimed “experts” who
post blogs and websites to share their thoughts and opinions with others. We have even found
op-ed essays and websites from convicts who advocate as disenfranchised felons.
While it is certainly compelling to include an example from an individual case or situation,
debaters are best served by establishing solid philosophical or legal principles and building cases
around the application of those principles. This topic in particular can lead to confusing and
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Resolved: In a democratic society, felons ought to retain the right to vote.
misleading debates if both the affirmative and negative speakers attempt to stack examples and
avoid incorporating well-developed analysis.
DEFINITIONAL CONCEPTS
When analyzing this topic, one of the first questions concerns perspective. The resolution has
no stated geographical or chronological reference – at first glance, it is a general proposition of
value and application. Since the criminal classification and the right to vote have been political
concepts for millennia, the resolution is technically without a timeframe reference. As such, both
affirmative and negative debaters are free to use both philosophical and pragmatic analysis from
any time in history and in any context to advance their arguments.
Which perspective to take? The debaters and the judge can evaluate the resolution as a
neutral observer or attempt to make the debate relevant to the judge pool by taking the
perspective on an American citizen or policymaker as is common in many parts of the country.
While there is sufficient room for debate with either approach, the flavor and range of arguments
will be different depending on the approach taken.
For this particular topic, contextual definitions are of particular value as opposed to standard
dictionary definitions. Use the dictionary definitions to establish meaning of the word but as you
research the topic, a richer, contextual understanding will develop.
Key Terms:
Democracy n. Government by the people, either directly or through representatives (adjectivedemocratic). Black’s Law Dictionary, 7th Edition (1999).
Felon n. A person who has been convicted of a felony. Black’s Law Dictionary, 7th Edition
(1999).
Important note: Once convicted of a felony, a person will always be a felon, even after being released from prison
and finishing probation. The term “ex-felon” – meaning someone who was in prison but is now free – is actually
erroneous. There’s a saying: “Once a felon, always a felon”
Felony n. A serious crime usually punishable by imprisonment for more than one year or by
death; also termed “major crime, “serious crime.” Black’s Law Dictionary, 7th Edition (1999).
What is a felony? The American Bar Association differentiates felonies (serious crimes) from
misdemeanors (minor crimes) and provides examples. “Felonies are more serious crimes than
misdemeanors. Robbery, kidnapping, rape, and murder are examples of felonies.” American Bar
Association Basics of Criminal Law (2008).
URL: http://www.abanet.org/publiced/practical/criminal/misdemeanor_felony.html
Right n. That which is proper under law, morality, or ethics; Something that is due to a person
by just claim, legal guarantee, or moral principle; A power, privilege, or immunity secured to a
person by law. Black’s Law Dictionary, 7th Edition (1999).
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Resolved: In a democratic society, felons ought to retain the right to vote.
Disenfranchise – to take away the power or opportunity to vote. The Right to Vote, Human
Rights Library, University of Minnesota, 2003. URL:
http://www1.umn.edu/humanrts/edumat/studyguides/votingrights.html
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Resolved: In a democratic society, felons ought to retain the right to vote.
AFFIRMATIVE POSITIONS
There are a wide variety of arguments for the affirmative and this essay covers a mere
sampling of them.
Democratic societies ought to maximize participation.
The resolution assumes that felon disenfranchisement is taking place in a democratic
framework. Democracy is unique as a system of government because it allows people to rule
themselves, and it is generally viewed that democracies that give more power to the people are
better than democracies that give less power to the people. While there are many definitions of
democracy, most would discourage felon disenfranchisement.
If democracy is a procedure for individuals to aggregate their preferences to make
policies, then any disenfranchisement is anti-democratic because it excludes the preferences of
one group of individuals. Even if some people would view those preferences as “bad” society, a
procedural view of democracy would hold that there is no legitimate basis for any preferences to
be rejected. If democracy is based on participation and consent, felon disenfranchisement is
wrong because felons cannot give consent to the laws that govern them because they cannot
express their preferences through voting.
Felon disenfranchisement disproportionately harms minority interests.
Democratic theory generally holds that all people have inherent value and deserve to rule
themselves. Because all people deserve to rule themselves, and no one has more of a right to
rule themselves than anyone else, equality is a necessary component of a democratic society.
There are countless studies on the effects of felon disenfranchisement on African American and
Latino communities in the United States. It also increases the gap in political influence between
classes, as poor felons are more likely disenfranchised, and have fewer other forms of political
recourse.
Additionally, felons can be considered as a minority group. Felons face unique
disadvantages as a group because they cannot effectively communicate with the public regarding
policy issues, and the public distrusts them. As a result, felons lack recourse against unfair
sentencing and abusive prison conditions. Because felons must be able to prevent their rights
from being abused, they ought to retain the right to vote.
Felon disenfranchisement is antithetical to the goals of punishment.
One of the goals of punishment is to make society safer. Because almost all criminals
that are in jail will have to reenter society at some point, policy decisions regarding punishment
should prepare inmates to be able to be productive members of society in the future. In order to
make ex-felons productive citizens, they must feel like their time back in society could be
fruitful, otherwise they would have no reason to refrain from engaging in criminal activity. By
denying felons the right to vote, they have less incentive to engage in productive activity because
they cannot influence policy decisions.
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Resolved: In a democratic society, felons ought to retain the right to vote.
Excluding criminals slows democratic progress.
One reason that democracy is valuable is that it forces the government to be responsive to
the wishes of citizens. In any society, crime is an important issue for the government to correct.
The existence of crime forces society to confront its own shortcomings and to re-evaluate its own
norms, as it implies that certain policy choices have failed to create a harmonious society.
Felon disenfranchisement attempts to mitigate the political power of criminals. By doing
so, it separates criminals from politics, and attributes crime only to the character flaws of the
felon. Therefore, instead of confronting the social causes of crime, felon disenfranchisement
excludes the very people that could give unique insight as to what policies could be enacted to
prevent crime.
Felon Disenfranchisement laws are inconsistent and disproportional.
In order for a punishment to be just, it must be proportional to the severity of the crime.
Felon disenfranchisement laws apply to anyone that is convicted of a felony, even though some
felonies are less severe than others, and many have nothing to do with a person’s ability to
honestly vote. Because of the blanket nature of felon disenfranchisement laws, they excessively
violate the rights of many people.
Additionally, every state has different standards for disenfranchisement. Because
democracy requires that laws be equally applied, it would be anti-democratic to treat some felons
better than other felons. Some states do not prevent felons from voting, others prevent only
felons that are currently in prison from voting, while others prevent anyone who was ever
convicted of a felon from voting. This means that every felon receives different treatment,
which violates the democratic principle of equality.
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Resolved: In a democratic society, felons ought to retain the right to vote.
NEGATIVE POSITIONS
Felon disenfranchisement promotes safety.
Safety is important to a democratic society because it creates an environment where
individuals are able to participate in politics and trust in the outcomes of that participation. It is
reasonable to argue that a society must maintain a significant level of safety before the
democratic process actually has any meaning. Additionally, since the resolution examines what
constitutes a legitimate punishment, and one legitimate goal of punishment is making society
safer, safety is a legitimate goal of a democratic society.
Felon disenfranchisement could promote safety. First, felon disenfranchisement may
promote deterrence. By taking the right to vote, potential criminals have an added incentive not
to violate the law. Preventing felons from voting also prohibits them from potentially passing
harmful laws. Felons could potentially come together and vote for policies that promote crime.
High crime areas also tend to have more felons, which increases the likelihood of this possibility.
The possibility of felon voting blocs would violate the rights of innocent citizens simply because
they live in high crime areas, which would be anti-democratic.
Felons disenfranchisement is justified according to social contract theory.
Under social contract theory, we agree to obey the laws of society in exchange for the
protection of our natural rights. Once an offender disobeys the law, the contract is breached, and
society no longer owes this protection. Since felons certainly have their natural right to freedom
limited through imprisonment, and in the case of capital punishment, their right to life, it is
legitimate to limit their ability to vote.
In the more specific context of a democratic society, the democratic process can be
viewed as a separate form of a social contract. By participating in a democracy, citizens
implicitly agree to consent to the outcomes, no matter how unfavorable. This prerequisite
condition is important, otherwise there would be no binding force behind the democratic process,
and no policies that are generated would have any social value. Since felons violate the law, they
disrespect democratic outcomes. Because felons lack a respect for the rules of democracy, it
follows that they should not be able to participate in the future.
Democratic societies have a right to shape their own moral identity.
People participating in a democracy have discretion to shape policies in whichever way
they like, as long as the outcome is reached democratically. This means a democratic society is
under no obligation to institute policies that the people do not prefer. Even if felon
disenfranchisement harms society, it still does not mean a democratic society “ought” to allow
felons to retain their right to vote, especially if society has decided that felons deserve to be
disenfranchised. While some may argue that democracy requires an absolute guarantee of
suffrage, felon disenfranchisement is qualitatively different from disenfranchisement based on
property, race, or gender. Because felons violate the most fundamental social rules,
disenfranchisement is an acceptable route for democratic societies to take and is an important
way for society to exercise its self-determination.
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Resolved: In a democratic society, felons ought to retain the right to vote.
Felon disenfranchisement is consistent with other forms of punishment.
There are many plausible and legitimate goals for punishment in a democratic society.
One of the most basic tenets of punishment is that criminals deserve to have their freedom
limited, and ought not be able to make decisions for themselves. Since criminals have virtually
all of their other substantive freedoms limited, it makes sense to limit their right to make
decisions that could potentially harm the community through voting as well.
Similarly, felons have other rights limited, even when they are released from prison. For
criminals on parole, their freedom to travel, associate, and engage in other day-to-day activities
is limited because society has deemed them too untrustworthy to be able to fully make decisions
for themselves. Even when felons finish their parole, they may have other rights limited, such as
the right to own firearms or be eligible for certain types of employment. Because felons have
other rights limited because society does not sufficiently trust them, there is no reason that this
same logic cannot be extended to the right to vote.
Felon disenfranchisement is based on long-standing legal principles.
Democratic societies that have felon disenfranchisement laws have based their rationale
for preventing felons from voting on a variety of legal considerations. Ancient Greek and
Roman societies practiced felon disenfranchisement as part of their tradition in dealing with
crime. Because these societies’ traditions served as the inspiration for laws in many Western
democracies, modern democracies have also adopted disenfranchisement policies. The historical
roots of disenfranchisement also suggest that any discrimination is unintentional, and so should
not factor into whether or not disenfranchisement is legitimate.
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Resolved: In a democratic society, felons ought to retain the right to vote.
SELECTED RESOURCES
Must read:
Felon Voting: Should felons be allowed to vote?
http://felonvoting.procon.org/
ProCon.org is a nonprofit public charity whose goal is to research issues that are complicated and important and to
present them in a straightforward way that does not reflect preference for any one perspective. This site provides
definitions, felon demographics and statistics, legal background, electoral implications, policy considerations, and
ten pros and cons. It is an excellent starting place for research.
Restoring the Right to Vote
http://www.brennancenter.org/content/resource/restoring_the_right_to_vote/
This recently released report (26 February 2008) from the Brennan Center for Justice at New York University
School of Law presents data and arguments for giving ex-offenders the right to vote. Erika Wood is Deputy Director
of the Democracy Program at the Brennan Center for Justice, spearheading the Brennan Center's Right to Vote
Project.
De Facto Disenfranchisement
http://www.brennancenter.org/content/resource/de_facto_disenfranchisement/
This just published report (1 October 2008) from the Brennan Center for Justice at New York University School of
Law provides the latest statistics and findings from a five-year, 23-state study on felony disenfranchisement and
legal analysis of those states’ voter eligibility laws. The interviews revealed an alarming national trend of de facto
disenfranchisement: 1) Election officials do not understand the basic voter eligibility rules governing people with
criminal convictions; 2) Election officials do not understand the basic registration procedures for people with
criminal convictions; and 3) Interviewers experienced various problems communicating with election officials,
including repeated unanswered telephone calls and bureaucratic runaround.
Legalaffairs.org debate club: Should ex-felons be allowed to vote?
http://www.legalaffairs.org/webexclusive/debateclub_disenfranchisement1104.msp
Roger Clegg, general counsel of the Center for Equal Opportunity, and Marc Mauer, Assistant Director of The
Sentencing Project, debate whether by committing a felony, does someone give up his right to a ballot, or should exfelons be allowed to vote? Good arguments presented for the affirmative and negative sides of the resolution.
Center for Equal Opportunity – Felon Voting Focus Area
http://www.ceousa.org/content/blogcategory/64/93/
Excellent resource for the negative side of the resolution. From the CEO’s Felon Voting website: 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.
Stanford Encyclopedia of Philosophy – Articles on Social Contract theories
http://plato.stanford.edu/search/searcher.py?query=social+contract
Be sure to read the articles on “Contractarianism”, “Contemporary Approaches to the Social Contract”.
http://plato.stanford.edu/entries/democracy/
The essay on “democracy” is also a must-read.
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Resolved: In a democratic society, felons ought to retain the right to vote.
Websites:
ONLINE RESOURCES
Citizenship, Democracy, and the Civic Reintegration of Criminal Offenders
http://www.soc.umn.edu/~uggen/Uggen_Manza_Thompson_ANNALS_06.pdf
This article is also a chapter in “Democracy, Crime, and Justice,” listed below. Like the book, it seeks to place the
felon and ex-felon’s right to vote within a broader context of the issue of criminals and citizenship. The authors
argue that the increase of criminal convictions and subsequent rise in numbers of men and women who leave
criminal justice supervision each year makes reassessing how sanctions (such as disenfranchisement) that strip them
of their right of citizens can have a profound impact on democracy.
Democracy Ghosts
http://www.democracysghosts.org/index.html
This is a website for the film “Democracy Ghosts: How 5.3 million Americans Have Lost the Right to Vote” which
was funded for the ACLU to promote the argument that denying felons the right to vote undermines democracy in
the United States. Watch the trailer, then move to the section titled “about the film” which provides information on
“the racial origins of felony disfranchisement, why denying the vote costs taxpayer money and how
disfranchisement works against rehabilitation.” The “learn more” section repeats many of these arguments but offers
some new information and is concise. The “get your vote back” section includes a link to a map of the US on which
one can find state-specific information and links to groups who promote this perspective in each state.
Election Reform
http://www.heritage.org/Research/GovernmentReform/Test031401.cfm?renderforprint=1
The Heritage Foundation is a think tank whose mission is to formulate and promote conservative public policies
based on the principles of free enterprise, limited government, individual freedom, traditional American values, and
a strong national defense. This article defends disenfranchisement of felons with two well-supported arguments.
Scroll down to the bolded header “Non-Citizens and Disenfranchisement Based on Criminal Behavior” to skip to the
most relevant section (the second half of the article). Also helpful is the appendix, “Congress’s Lack of Authority to
Overrule or Ban State Felon Disenfranchisement Laws.”
Ex-cons' sentences don't always end with release
Donna Leinwand, “Ex-cons' sentences don't always end with release,” USA Today, July 23, 2007.
http://www.usatoday.com/news/nation/2007-07-22-ex-cons_n.htm
This USA Today article examines restrictions on felons after being released from prison and how collateral
punishments, restrictions or prohibitions placed on released felons can deny them re-entry into society and lead them
back to a life of crime and prison. This articles contains a number of excellent quotations from law professors and
reform advocates.
Felon Voting: Should felons be allowed to vote?
http://felonvoting.procon.org/
ProCon.org is a nonprofit public charity whose goal is to research issues that are complicated and important and to
present them in a straightforward way that does not reflect preference for any one perspective. This site provides
definitions, felon demographics and statistics, legal background, electoral implications, policy considerations, and
ten pros and cons. It is an excellent starting place for research.
Felony Disenfranchisement Laws in the United States
http://www.sentencingproject.org/PublicationDetails.aspx?PublicationID=335
This pdf file (click on “view pdf”) is an overview of felony disenfranchisement policy and implications and includes
a very helpful state-by-state table that clearly illustrates voting rights for prisoners, persons on probation and persons
on parole for each state. Go to “Felony Disenfranchisement” on the left toolbar for more reports published by The
Sentencing Project, a research and advocacy group that promotes sentencing reforms in law and practice as well as
alternatives to incarceration.
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Resolved: In a democratic society, felons ought to retain the right to vote.
Felon Disenfranchisement Project Summary
http://www.soc.umn.edu/~uggen/FD_summary.htm
This is part of the website established to accompany the book “Locked Out: Felon Disenfranchisement and
American Democracy” (listed below). This particular section lists critical questions for analyzing the issue and links
to articles pertaining to each.
Felon Voting Rights Conflict Hits Federal Court
http://newstandardnews.net/content/index.cfm/items/1978
This article describes a 2005 class action lawsuit on disenfranchisement in the State of New York. The section
"Disenfranchisement Seen as Punishment by Some, Oppression by Others" is the article's most original contribution
to this resource list, pitting against each other the arguments of researcher activists Roger Clegg and Jeff Manza.
(Both have work cited here.)
Felons Don't Merit Automatic Rights
http://www.sptimes.com/2007/04/02/Opinion/Felons_don_t_merit_au.shtml
This article, written by Florida Attorney General Bill McCollum, was published in many Florida newspapers to
garner support for Florida's disenfranchisement policy. According to McCollum, it is out of "justice, respect for
crime victims and public safety" that Florida takes away the rights of convicted felons to vote.
The Last Disenfranchised Class
http://www.thirdworldtraveler.com/Election_Reform/Last_Disenfanchised_Class.html
This article, originally published in progressive magazine “The Nation” in 2003, gives an overview of
disenfranchisement in the United States with special attention to the impact on those convicted for drug-related
crimes. Author Rebecca Perl, an associate at the Center for Investigative Reporting, examines the argument that
those who do not follow the rules should not be able to make rules. She disaggregates this broad perspective,
illuminating more nuanced viewpoints. Perl believes that we are in the midst of a trend of restoring the franchise and
that states will continue to move in this direction.
Leave No Voter Behind: Seeking 100 Percent Voter Registration and Effective Civic Education
http://www.fairvote.org/index.php?page=1420
This article argues that a well-functioning democracy requires high levels of voter participation and warns that a low
voter registration rate and declining participation can result in a disconnect between legislators and constituents. The
article embeds felon voting rights in this wider context. Additional resources that make this point can be found at
http://www.fairvote.org/index.php?page=209.
Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States
http://hrw.org/reports98/vote/
Human Rights Watch is an independent, nongovernmental organization dedicated to protecting the human rights of
people around the world. This report provides a comprehensive look at disenfranchisement in the United States from
a rights-based perspective. The most original contribution made is section VII, “ US Criminal Disenfranchisement
Under International Human Rights Law.”
New Jersey Citizens on Parole and Probation bring Plea for Right to Vote to Human Rights Body
http://www.aclu.org/intlhumanrights/gen/26732prs20060914.html
This news article reports the filing of a petition to the Inter-American Commission on Human Rights to rule that
denying New Jersey citizens on parole and probation the right to vote is against universal human rights law. The
American Civil Liberties Union (ACLU) and Rutgers Law School Constitutional Litigation Clinic, the filers, argue
that not only is this disfranchisement law contrary to the premise of a participatory democracy but it is also a racial
issue, as African American and Latinos constitute a disproportionately large number of criminals. The petition
itself—linked at the bottom of the page—is also a great resource.
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Resolved: In a democratic society, felons ought to retain the right to vote.
Out of Step With the World: An Analysis of Felony Disfranchisement in the US and other Democracies
http://www.aclu.org/votingrights/exoffenders/25663pub20060525.html
This report was produced by the American Civil Liberties Union (ACLU), a nation-wide, non-profit, nonpartisan
organization dedicated to protecting human rights and civil liberties in the United States. Its voting rights work aims
to ensure that the political process is open and accessible to all and its Human Rights Working Group holds the US
government accountable to universal human rights principles as well as those rights guaranteed by the US
Constitution. This report compares US disfranchisement policies that that bar over 5 million US citizens from voting
with the treatment of felons in Europe, where almost half of the countries allow incarcerated people to vote.
The Politics of Voter Suppression
http://www.npr.org/templates/story/story.php?storyId=5534551
In this National Public Radio (NPR) "Politics and Society" segment, Spencer Overton, Professor of Law at George
Washington University and author of "Stealing Democracy: The New Politics of Voter Suppression," gives a great
introduction to voting rights in a politicized environment.
Race, Crime and Democracy: The Problem of Felony Disenfranchisement
http://www.acslaw.org/node/401
This is the transcript of a 2004 conference sponsored by the American Constitution Society for Law and Policy
(ACS), a legal organization whose mission is to ensure that fundamental principles of human dignity, individual
rights and liberties, genuine equality, and access are honored in American law. The conference participants are
representatives from the Open Society Institute, the Brennan Center for Justice at NYU, the Center for Equal
Opportunity and the Equal Justice Initiative of Alabama. Pages 1-3 are introductions to the speakers, pages 3-13 are
the speakers' opening remarks and statements of position, and pages 14-17 are interesting conversation. All of this
will be very helpful in understanding the nuances of perspectives on the subject.
Should Felons Vote?
http://www.city-journal.org/html/15_2_felons.html
This passionately written article argues that felon voting is “wrong on fact and on principle” and systematically
debunks each common argument for the opposition. The article is published in City Journal, a quarterly publication
of the Manhattan Institute for Policy Research, a think tank whose mission is to develop and disseminate new ideas
that foster greater economic choice and individual responsibility.
States Are Growing More Lenient in Allowing Felons to Vote
http://www.nytimes.com/2006/10/12/us/12felons.html?sq=felon%20and%20vote&st=cse&adxnnl=1&scp=12
&adxnnlx=1216818093-CXetpqbZ1qAZakVcW4G5eA
This New York Times article highlights the trend of states loosening restrictions on felons’ and ex-felons’ voting
rights, emphasizing the impact of such legislation on male African American voters. The article bridges the gap
between the rights argument and racial equity argument. Extremely entertaining and somewhat helpful is the “Share
Your Thoughts” link on the left—over 250 people have commented on the article, most agreeing with the author.
Testimony of Roger Clegg Before House Judiciary Committee Subcommittee on the Constitution Regarding H.R.
906, A Bill to “Secure the Federal Voting Rights of Persons Released from Incarceration”
http://www.ceousa.org/content/view/322/93/
Roger Clegg is vice president of the Center for Equal Opportunity, a conservative think tank devoted to issues of
race and ethnicity, and a graduate Yale Law School. He advocates that the right to vote should be restored to a felon
only after the felon has served his or her full sentence, and then only on a case-by-case basis. He explains why the
states can have legitimate reasons for disenfranchising felons—ones that are not found on racism. While this is a
very thorough version of his argument, the articles he has written (linked on the right side of the page) may also be
helpful for understanding this perspective.
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Resolved: In a democratic society, felons ought to retain the right to vote.
Voting Rights and Felons/Ex-Felons
http://www.safetyandjustice.org/info/topic/voting_rights_and_felons_ex-felons
Partnership for Safety and Justice is a grassroots organization that seeks to advance policies that decrease state
reliance on incarceration and promote strategies that reduce recidivism and increase personal/community safety.
This page on the organization’s website is a clearinghouse for articles about voting rights for felons and ex-felons.
Most of the articles regard major state decisions, though the first two are very helpful and plainly-written primers on
disfranchisement and the requirement to pay fees/fines before voting.
BOOKS
Conned: How Millions Went to Prison, Lost the Vote, and Helped Send George W. Bush to the White House
Sasha Abramsky. New Press, 2006. (ISBN-13: 978-1565849662)
Democracy, Crime, and Justice
Susanne Karstedt and Gary D. Lafree, Editors. SAGE Publications, 2006. (ISBN-13: 9781412944656)
The Disenfranchisement of Ex-Felons
Elizabeth Hull and John Conyers. Temple University Press, 2006. (ISBN-13: 9781592131846)
Felony Disenfranchisement in America: Historical Origins, Institutional Racism, and Modern Consequences
Katherine Irene Pettus. LFB Scholarly Publishing, 2004. (ISBN-13: 9781593320614)
Locked Out: Felon Disenfranchisement and American Democracy
Jeff Manza and Christopher Uggen. Oxford University Press, 2006. (ISBN-13: 9780195149326)
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Resolved: In a democratic society, felons ought to retain the right to vote.
SELECTED QUOTATIONS ON THE TOPIC
AFFIRMATIVE QUOTATIONS
Felons deserve every right afforded to any American; they have not been relieved of their
citizenship
Walter Mosley, crime writer and social commentator, “The Sounds of Silence,” The Nation,
February 12, 2007.
No matter how well hidden they are, no matter how successfully they have been silenced, these
prisoners deserve every right afforded to any American. They’re already incarcerated. They’re
already doing time. They have been found guilty of breaking the law in our flawed system and
sentenced. But they have not been found evil; they have not been relieved of their citizenship.
Let’s allow ex-convicts, and convicts too, to become a part of our political dialogue. Let’s make
our elected officials responsible to all Americans. And let’s have those Americans bring new
information to the dialogue. Maybe, just maybe, they will tell us some things that might make us
a stronger, more just union.
Counting illegitimately disenfranchised votes would have changed the presidential election
in 2000
Joe Pettit, letter to the editor, New York Times, 24 September 2004.
Recent history supports the case made by Brent Staples for eliminating the practice of denying
the vote to ex-offenders (''How Denying the Vote to Ex-Offenders Undermines Democracy,''
Editorial Observer, Sept. 17). The Commission on Civil Rights reported that ''widespread''
disenfranchisement of African-American voters in Florida resulted in ''countless'' AfricanAmerican voters -- some say tens of thousands -- being denied the right to vote in the 2000
presidential election. Their votes were denied either because their names were falsely associated
with a crime, or because they were ex-offenders who had regained their right to vote but were
still denied a ballot. This could not have happened if there were no policy of denying exoffenders the right to vote. The election was decided by a difference of 537 votes. It is hard to
think of a clearer case of democracy being undermined. – Joe Pettit, Baltimore, Sept. 17, 2004
Persistent confusion exists among election officials about their own state’s felony
disenfranchisement policies
Erika Wood and Rachel Bloom, Deputy Director and Right to Vote Advocacy Coordinator
(respectively) both at the Brennan Center for Justice, New York University Law School, De
Facto Disenfranchisement, American Civil Liberties Union (ACLU) and Brennan Center for
Justice at New York University School of Law report, October 1, 2008.
This disenfranchisement by law of millions of American citizens is only half the story. Across
the country there is persistent confusion among election officials about their state’s felony
disenfranchisement policies. Election officials receive little or no training on these laws, and
there is little or no coordination or communication between election offices and the criminal
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Resolved: In a democratic society, felons ought to retain the right to vote.
justice system. These factors, coupled with complex laws and complicated registration
procedures, result in the mass dissemination of inaccurate and misleading information, which in
turn leads to the de facto disenfranchisement of untold hundreds of thousands of eligible wouldbe voters throughout the country.
Felon disenfranchisement is widespread.
David Zetlin-Jones, “Right to Remain Silent? What the Voting Rights Act Can and Should Say
About Felony Disenfranchisement” Boston College Law Review, Volume 47, 2006
The impact of these laws is profound and escalating, in large measure due to the ballooning
incarceration and conviction rates. Over five million people in the United States, or two percent
of the electorate, cannot vote because of felony disenfranchisement laws. Roughly 1.4 million of
those disenfranchised have completed their sentences, including probation and parole.
Felon Disenfranchisement disproportionately harms minorities.
Richard L Lipke, “The Disenfranchisement of Felons”, Law and Philosophy, Volume 20, No. 6,
2001.
It is estimated that disenfranchisement laws affect four million felons and ex-felons in the United
States. Given their disproportionate representation in the criminal justice system, many of those
disenfranchised are African-American or Hispanic. It is estimated that one in seven black men in
the United States cannot legally vote because of disenfranchisement laws. All of these figures are
likely to grow significantly in the coming years. Since the early 1980s, the United States has
experienced an unprecedented incarceration binge, one that shows no signs of abating. Hence,
the likely effect of disenfranchisement laws will be to legally bar increasing numbers of citizens,
many of them poor or in other ways marginalized, from one important form of participation in
the democratic process.
Felon disenfranchisement has changed the outcome of elections.
David Zetlin-Jones, “Right to Remain Silent? What the Voting Rights Act Can and Should Say
About Felony Disenfranchisement” Boston College Law Review, Volume 47, 2006
The disqualification of such a magnitude of otherwise eligible voters suggests (and studies
confirm) that the practice of disenfranchising felons has affected election outcomes. One study
found that since 1978, seven U.S. Senate elections would have turned out differently but for the
state's criminal disenfranchisement laws. Had felons been permitted to vote in Florida in 2000,
Al Gore would have carried the state (and thus the Presidency) by at least 40,000 votes. Had only
ex-felons -- those who have served their incarceration, probation and parole sentences -- been
permitted to vote, the margin of Gore's victory would still have been 30,000. Similarly,
Washington's 2004 gubernatorial election was also skewed as a result of its felony
disenfranchisement laws.
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Resolved: In a democratic society, felons ought to retain the right to vote.
Felon disenfranchisement laws are crafted to be subtly racist.
Robin L. Nunn, “Lock Them up and Throw Away the Vote”, Chicago Journal of International
Law, Volume 5, 2005
Felon disenfranchisement laws became important tools in preventing African Americans from
voting. "Between 1890 and 1910, many Southern states tailored their criminal
disenfranchisement laws, along with other preexisting voting disqualifications, to increase the
effect of these laws on black citizens." Some states enacted laws that disenfranchised felons for
crimes such as using insulting gestures or language, preaching the gospel without a license, or
intent to steal. States often aimed their disenfranchisement statutes at crimes thought to be
committed mostly by African Americans, such as theft, while "white" crimes, such as murder,
contained no loss of voting rights. For instance, in Alabama, under state disenfranchisement
laws, a man convicted of vagrancy would lose his right to vote, but a man convicted of killing
his wife would not. In the state of South Carolina, lawmakers made thievery, adultery, arson,
wife beating, housebreaking, and attempted rape into felonies accompanied by the deprivation of
voting rights, while murder and fighting were excluded from disenfranchisement. The United
States criminal disenfranchisement laws amounted to state collaboration in social race-based
subordination -- an official endorsement of discrimination on the basis of race.
Felon disenfranchisement disadvantages black communities.
Afi S. Johnson-Parris, “Felon Disenfranchisement: The Unconscionable Social Contract
Breached”, Virginia Law Review, Volume 89, 2003.
The impact of felon disenfranchisement is perhaps most acutely felt in the black community
where the number of citizens lacking the right to vote has reached a critical mass. One study
demonstrated that "[t]hirteen percent of all adult black men-1.4 mil- lion-are disenfranchised,
representing one-third of the total disenfranchised population and reflecting a rate of
disenfranchisement that is seven times the national average." The diminished political strength of
this segment of the population is still greatest in the South where thirty-one percent of black men
in Alabama and Florida are permanently disenfranchised. Perhaps a vestige of the
disenfranchisement era of the early twentieth century, disenfranchisement of blacks may also
reflect increased rates of black imprisonment related to the "war on drugs" and a national trend
toward harsher sentencing policies.
Felon disenfranchisement disproportionately harms minority groups.
David Zetlin-Jones, “Right to Remain Silent? What the Voting Rights Act Can and Should Say
About Felony Disenfranchisement” Boston College Law Review, Volume 47, 2006
The impact felt by criminal disenfranchisement statutes has a racial component as well. Over a
third of those disenfranchised (an estimated 1.4 million citizens) are African-American, though
African-Americans comprise just over one-tenth of the national population. Nationally, felony
disenfranchisement statutes deprive the right to vote to thirteen percent of the African-American
voting population, seven times the national average. In states that disenfranchise exfelons, the
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Resolved: In a democratic society, felons ought to retain the right to vote.
effect on minority communities is even more arresting; for example, Florida and Alabama's
disenfranchisement laws deny the right to vote to one-in-three black men.
There are strong economic interests that are unfavorable to felon rights.
The Harvard Law Review Association, “Developments in the Law: The Law of Prisons”,
Harvard Law Review, Volume 115, 2002.
Industry lobbies government, and regulatory agencies can be captured by the entities they
regulate; the private prison industry is no different. Not only may private prison companies lobby
for preferential treatment, they may also, as entities that directly profit from incarceration,
influence substantive criminal legislation by supporting tough-on-crime candidates, scaring the
public about crime, and advocating tougher sentencing. The story is plausible, but it does not
explain current levels of prison privatization or modern-day demand for more and cheaper
prisons be- cause the forces leading to the explosive growth of the prison population
substantially predate the modern growth of the private prison industry. Moreover, though private
prison companies do lobby state and federal governments, so do prison guard unions, which also
benefit from increased incarceration rates and prison construction. Prison guard unions generally
contribute vastly more money to politicians than do private prison companies. The California
prison guard union, for example, endorses and contributes millions of dollars to state candidates
and "is among the largest campaign donors in the state."
State laws target black crimes for disenfranchisement
Jeff Manza and Christopher Uggen, “Punishment and Democracy: Disenfranchisement of
Nonincarcerated Felons in the United States”, Perspectives on Politics, Volume 2, No. 3, 2004.
Although felon disenfranchisement laws are facially race-neutral, historical antecedents and
contemporary disparities have created the widespread perception that race underlies the practice.
The major period of the expansion of these laws occurred after the Civil War, in the context of
the implementation of the 14th and 15th Amendments. Many of the state laws adopted during
this time appeared to target crimes for which African Americans were especially likely to be
convicted. In the South, in particular, felon voting bans must clearly be situated alongside other
moves to disenfranchise black voters. The very high proportion of disenfranchised African
Americans today potentially provides a red thread back to the origins of the state laws, while also
serving as a painful reminder of the incomplete civil rights revolution and lingering race-based
political inequalities.
Felon disenfranchisement laws are unequally applied between states.
Robin L. Nunn, “Lock Them up and Throw Away the Vote”, Chicago Journal of International
Law, Volume 5, 2005
In the United States, blanket disenfranchisement and disproportionate provisions that fail to
consider individuals' circumstances are widespread. Today, fourteen American states
permanently disenfranchise ex-felons. In forty-eight states and the District of Columbia, criminal
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Resolved: In a democratic society, felons ought to retain the right to vote.
disenfranchisement laws deny the vote to all convicted felons in prison. Thirty-five states also
disenfranchise felons on parole; thirty-one of these states disenfranchise those on probation.
And, unlike anywhere else in the world, in seven states ex-offenders who have fully served their
sentences remain barred for life from voting.
Disenfranchisement is an arbitrary punishment.
Richard L Lipke, “The Disenfranchisement of Felons”, Law and Philosophy, Volume 20, No. 6,
2001.
The rules of civil society establish a scheme of mutual benefit, yet felons are unwilling to
shoulder the burdens necessary to maintain such a scheme. In the interest of fairness, the state
can legitimately deprive them of the right to continued participation in determining both what
those rules should be and the individuals who shall execute them. But the conclusion need not
follow from the premise, even if we add the premise that serious offenders ought to have some of
their rights legitimately curtailed, for we still require some account of which of their rights are
legitimately curtailed. Why are not rights to freedom of movement, association, or privacy the
ones to be curtailed, as it is these that incarceration most obviously intrudes upon? Put
differently, simply saying that serious offenders show contempt for the rules of civil society does
not establish which of those rules they ought to lose the protections of. Serious offenders may
have shown contempt for only one or a few such rules. If so, it is not clear why they should lose
the protection of all of them. And if offenders have not abused voting or election rules, it is not
clear why they should lose the protection of such rules at all.
Felon disenfranchisement is an unfair limitation on voting rights.
David Zetlin-Jones, “Right to Remain Silent? What the Voting Rights Act Can and Should Say
About Felony Disenfranchisement” Boston College Law Review, Volume 47, 2006
There is still a more compelling reason why courts should not require a clear or strong showing
of congressional intent before applying the VRA's section 2 to felony disenfranchisement laws:
section 2 is not ambiguous. Both the plain statement rule, invoked by Muntaqim, and the
constitutional avoidance canon, invoked by Johnson v. Governor of Florida, require statutory
ambiguity as a threshold matter. Only if the plain meaning of the statute's text presents two
plausible interpretations may a court invoke these doctrines. Section 2 of the VRA applies to all
voting qualifications. Felony disfranchisement is a voting qualification. Reading an exception
for felony disenfranchisement laws into the VRA's section 2 is not an exercise in statutory
construction; it is an exercise in legislative revision and an impermissible judicial intrusion into
the legislative process. Courts must abide by the plain terms of section 2 and apply the VRA to
criminal disenfranchisement laws.
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Resolved: In a democratic society, felons ought to retain the right to vote.
Felon disenfranchisement laws target inappropriate felonies.
Robin L. Nunn, “Lock Them up and Throw Away the Vote”, Chicago Journal of International
Law, Volume 5, 2005
Since statutory law determines whether felon offenders retain their right to vote, criminal
disenfranchisement is not imposed by order of a judge as part of a criminal sentence. It is a
collateral consequence of conviction that occurs automatically and administratively. Conviction
of any crime that is punishable with imprisonment is a basis for losing the right to vote. For
example, a nineteen-year-old, first-time offender convicted of participating with others "in a
course of disorderly conduct" who receives a nonprison sentence could lose the right to vote for
life based on the state felon disenfranchisement law. The crime need not be notably serious nor
have any connection to electoral or political processes or to the security of the state. The array of
disenfranchising offenses is broad -- one might be permanently disenfranchised for "writing a
bad check," "inducing another to engage in gambling," or "breaking a water pipe." "Shoplifting
or possession of a modest amount of marijuana also suffice."
Bad voting outcomes do not legitimize disenfranchisement.
Michael J. Cholbi, “A Felon’s Right to Vote”, Law and Philosophy, Volume 21, 2002.
Denying a class of citizens the right to vote based on its likely voting patterns quashes the very
dissent and change that voting is intended to register and enable. As Justice Thurgood Marshall
once wrote, The ballot is the democratic system's coin of the realm. To condition its exercise on
support of the established order is to debase that currency beyond recognition. Though it may be
in felons' best interest to vote so as to weaken criminal laws, advocates of democracy cannot
object to felons voting in this fashion, since voting based on self-interest is precisely how many
citizens in fact vote and how some theorists of democratic choice recommend citizens ought to
vote. If felons retain the right to vote, then they retain the right to vote so as to change policies
they oppose or that fail to serve their self-interest.
Felon disenfranchisement violates international norms.
Robin L. Nunn, “Lock Them up and Throw Away the Vote”, Chicago Journal of International
Law, Volume 5, 2005
The emerging international consensus views broad felon disenfranchisement as illegitimate.
Significant international treaties enshrine exfelon offenders' claims to "universal and equal"
suffrage. In particular, Article 5, Section (c) of the Convention on the Elimination of All Forms
of Racial Discrimination and Article 25 of the International Covenant on Civil and Political
Rights guarantee every citizen certain fundamental rights, including "universal and equal
suffrage" without "unreasonable restrictions" and without regard to "race, colour, or national or
ethnic origin." These international antidiscrimination laws set out basic principles for electoral
democracy, condemning any voting law that yields a discriminatory racial impact.
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Resolved: In a democratic society, felons ought to retain the right to vote.
Felon disenfranchisement creates problems with criminal reintegration.
Jeff Manza and Christopher Uggen, “Punishment and Democracy: Disenfranchisement of
Nonincarcerated Felons in the United States”, Perspectives on Politics, Volume 2, No. 3, 2004.
In addition to these long-standing political and philosophical questions about citizenship,
disenfranchisement can also be viewed from the perspective of individual felons in their
communities. The loss of voting rights is one of many "collateral consequences" of a felony
conviction. Since the right to vote is an especially powerful symbol of inclusion, its denial may
carry a particular sting to felons who must uphold other responsibilities of citizenship. Political
theorists have widely asserted the importance of the right to vote as a certificate of social
standing and as the basis for dignity and self-confidence. Some criminologists now suggest that
the indiscriminate use of such sanctions may pose a barrier to offender reintegration, contributing
to higher rates of recidivism.
The right of self-determination is the most fundamental right.
Michael J. Cholbi, “A Felon’s Right to Vote”, Law and Philosophy, Volume 21, 2002.
In that tradition, represented in various ways by Locke, Kant, and Mill, the state derives its
legitimacy from its ability to protect or enhance rights or moral qualities individuals are thought
to have independently of the state. On this view, the right to vote, though explicitly political,
follows from a pre-political right I will call the right of self-determination. This is the right to
shape the conditions of one's own existence and pursue one's own considered conception of the
good free from encumbrance except when doing so violates others' rights to do the same.
Beneath the classical liberal rhetoric of the rights to life, liberty, and happiness is the notion that
each of us possesses both a power and a right to shape our lives as we see fit. The right of selfdetermination may therefore be seen as the general right underlying such basic liberal principles
as Mill's harm principle and Rawls's first principle of justice (the maximal equal liberties
principle). Not only is the right to vote essential to the exercise of the right of self-determination,
but giving all citizens, including felons, the right to vote infringes neither on anyone's right to
vote nor on anyone's general right of self-determination. Hence, if any right is fundamental, it is
the right of self-determination.
Voting is an inalienable right.
Jesse Furman, “Political Illiberalism: The Paradox of Disenfranchisement and the Ambivalence
of Rawlsian Justice”, Yale Law Journal, Volume 106, 1997.
The right to vote is arguably the most important totem of democratic citizenship. Groups
throughout American history, from women to African Americans to the poor, have struggled to
achieve the full membership in the political community that the franchise grants. The Supreme
Court has declared that the right to vote is an "inalienable right," debasement of which makes
one "that much less a citizen." Yet despite its putative commitment to the inalienability of
voting, the Supreme Court has, in fact, upheld the forfeiture of voting rights by a large number of
American citizens: In fourteen states persons convicted of a felony are disenfranchised for life.
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Resolved: In a democratic society, felons ought to retain the right to vote.
The Supreme Court's approval of felon disenfranchisement, in the context of its jurisprudence on
voting and citizenship, presents a paradox: While it has held that voting is essentially equivalent
to citizenship, and that citizenship cannot be taken away as a form of punishment, the Court has
failed to close the syllogistic circle. The outcome is an uneasy tension, or ambivalence, between
a rhetoric of toleration as expressed in the Court's citizenship jurisprudence and a discourse of
exclusion as expressed in its approval of disenfranchisement.
International law protects voting rights.
Robin L. Nunn, “Lock Them up and Throw Away the Vote”, Chicago Journal of International
Law, Volume 5, 2005
It is the ever-growing tendency of international bodies to adopt the view that blanket statutory
felon disenfranchisement laws are unjust. International law sets out basic principles for electoral
democracy. Many documents to which the United States is a party mandate equal protection of
the laws on the grounds of race and encourage official action to protect citizens' voting rights
from discriminatory or unreasonable restrictions. As recently recognized in the European Court
of Human Rights'Hirst v United Kingdom No 2 decision, voting rights are important freedoms
that should not be denied easily.
Felon disenfranchisement, like all collateral consequences, constitutes unjust retribution.
Afi S. Johnson-Parris, “Felon Disenfranchisement: The Unconscionable Social Contract
Breached”, Virginia Law Review, Volume 89, 2003.
Lifelong sanctions insult the retributive principle that the offender should be required (and
permitted) to pay his debt to society. Finally, with respect to people's understanding of their
duties under the contract, the common expression, "'he has paid his debt to society,' articulates a
notion that the price for committing a crime is a prison term, and that once that term has been
served, the penalty is complete."' With the collateral consequence of felon disenfranchisement,
this understanding is incorrect, and the consequence may be exacted long after the formal
sentence is complete.
Certain felonies do not merit disenfranchisement.
Sam Hirsch, Amici Curiae Brief for the National Black Police Association, the National Latino
Officers Association of America, and Former Law-Enforcement Officials in Johnson V. Bush,
2005.
Permanent disenfranchisement is unjustifiably disproportionate for a second reason. At common
law, and at the time the Reconstruction Amendments were ratified, relatively few offenses were
deemed felonies, mostly involving violence or forceful invasions of property. Today, however,
federal and state felony statutes apply to a broad range of activity, including countless regulatory
violations, as reflected in the exponentially increasing number of Floridians to whom the State’s
disenfranchisement law applies. For example, it is a felony in Florida today for a wholesaler
intentionally to sell malt beverages to a vendor without first allowing them to come to “rest at the
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Resolved: In a democratic society, felons ought to retain the right to vote.
[wholesaler’s] licensed premises.” Permanently banning voting by such a broad class of exoffenders sweeps far beyond the original retributive logic of denying the franchise to a stillincarcerated violent felon.
The UN mandates universal suffrage protection.
Robin L. Nunn, “Lock Them up and Throw Away the Vote”, Chicago Journal of International
Law, Volume 5, 2005
The Universal Declaration of Human Rights ("Universal Declaration") is a significant document
on human rights, adopted unanimously by the United Nations General Assembly. In outlining
principles of representation and equality, Article 2 states: "Everyone is entitled to all the rights
and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, .
. . or other status." Blanket felon disenfranchisement laws threaten the rights and freedoms of
persons based on their status as felon offenders; the United States' laws on what citizens should
be denied the right to vote, as remnants of America's racist past, hinder the rights of criminal
offenders on the basis of race. Among the rights recognized by the Universal Declaration is that
"the will of the people shall be . . . by universal and equal suffrage." In this document, universal
and equal suffrage is a key component of democratic representation.
The right to vote is necessary in order to create fair outcomes.
Richard L Lipke, “The Disenfranchisement of Felons”, Law and Philosophy, Volume 20, No. 6,
2001.
Second, there is what we might term the outcome interest in political participation. By being able
to participate on equal terms in democratic decision-making, individuals affect, to some degree,
the results of those decisions. To a greater or lesser extent, depending on the numbers of
participants in any decision and the types of participation involved, the outcomes reflect the
interests of the participants. Democratic participation is thus alleged to produce fairer outcomes,
in the sense that the beliefs, preferences, and commitments of all citizens are taken into account
in decision-making about matters of public import. Also, democratic participation may be
instrumental in securing other important rights, especially by making political officials wary of
adopting policies that undermine or erode such rights.
Other reasons to limit voting rights do not justify felon disenfranchisement.
Robin L. Nunn, “Lock Them up and Throw Away the Vote”, Chicago Journal of International
Law, Volume 5, 2005
The fact that felon disenfranchisement was referenced briefly when creating the ICCPR does not
mean that the current practice of US permanent felon disenfranchisement is legitimate under
international law. For example, the US delegate discussed the legitimacy of exclusion of
illiterates from voting in drafting the ICCPR. However, the practice of excluding illiterates is
now unconstitutional in the United States and no longer considered reasonable under modern
standards of democracy. While the exclusion of many groups has been prevalent at various times
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Resolved: In a democratic society, felons ought to retain the right to vote.
in history, many disenfranchisement practices are no longer considered reasonable under current
standards.
The courts are unwilling to protect the rights of felons.
The Harvard Law Review Association, “Developments in the Law: The Law of Prisons”,
Harvard Law Review, Volume 115, 2002.
The greatly increased politicization of the Supreme Court appointment and confirmation process
in response to heightened awareness of the Supreme Court's role in influencing policy may be
one reason that the Court appears to be more reluctant to protect politically unpopular
constitutional rights, including the rights of prisoners and criminal defendants. The traditional
view of a majoritarian Congress facing off against a minoritarian, rights-conscious Court does
not accurately describe American politics at a time when "[a]ll three branches of government are
arguably dominated by a certain bloody- mindedness when it comes to the rights of aliens and
prisoners." The work of a number of political scientists reveals a new politics of judicial review
in which the Court is far less likely to play a counter-majoritarian role.
Existing legal mechanisms are insufficient to protect felon rights.
The Harvard Law Review Association, “Developments in the Law: The Law of Prisons”,
Harvard Law Review, Volume 115, 2002.
Prisoners arguably constitute a "discrete and insular minorit[y]." Their access to "those political
processes ordinarily to be relied upon to protect minorities" is significantly limited in a very real
sense. Indeed, the legitimacy of judicial review may be strongest when the judicial branch plays
a "role in ensuring that the political branches - subject as they are to the vicissitudes of the
moment - do not violate the fundamental liberties of the disfavored, unpopular, or less powerful
members of our society." The alliance of Congress and the Supreme Court in an effort to limit
the involvement of district judges in prison conditions suits and habeas corpus petitions is
regrettable to those who are committed to protecting prisoners' rights, because federal district
courts are particularly well suited to protect those rights.
Complete felon disenfranchisement is not proportional.
Sam Hirsch, Amici Curiae Brief for the National Black Police Association, the National Latino
Officers Association of America, and Former Law-Enforcement Officials in Johnson V. Bush,
2005.
The State has identified no evidence that ex-offenders who have completed their terms of
incarceration and supervision are prone to commit offenses affecting the integrity of elections.
And amici are unaware of any such evidence. Notably, Florida has not limited its permanent ban
on voting to those felons who have previously committed election-related offenses. Permanently
disenfranchising all ex-felons is a wildly overbroad response to the State’s asserted concern.
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Resolved: In a democratic society, felons ought to retain the right to vote.
Felon disenfranchisement is an excessive punishment.
Sam Hirsch, Amici Curiae Brief for the National Black Police Association, the National Latino
Officers Association of America, and Former Law-Enforcement Officials in Johnson V. Bush,
2005.
For one thing, the Constitution imposes limits on retributive punishment, such as the Eighth
Amendment’s prohibitions on “excessive fines” and “cruel and unusual” punishments. More
generally, the law-enforcement community and society at large now recognize that a punishment
can be morally justified as retribution only if it is reasonably proportionate in severity and
duration to the crime in question. Today, no one could seriously assert, for example, that
permanently stripping all ex-felons of the right to marry or to inherit property would be a
justifiable form of retribution. In the context of the right to vote, amici believe that
disenfranchisement after the ex-felon has served his term of imprisonment and any subsequent
period of official supervision is unjustifiably disproportionate.
Encouraging felon participation in civic affairs can positively impact the community.
Michael J. Cholbi, “A Felon’s Right to Vote”, Law and Philosophy, Volume 21, 2002.
On the other hand, allowing felons to vote would encourage them to participate in civic affairs,
with beneficial results: criminals will strengthen their ties to their communities; develop
sympathy and civic-mindedness; enhance their ability to deliberate about long-term policies that
affect more than their own self-interest; and become hopeful about their ability to affect the
world in positive ways. Denying felons the vote can only serve to stigmatize felons and
exacerbate factors known to contribute to criminal behavior.
Voting may help felons reintegrate into society.
Christopher Uggen and Jeff Manza, “Symposium on Race, Crime, and Voting: Social, Political,
and Philosophical Perspectives on Felony Disenfranchisement in America: Voting and
Subsequent Crime and Arrest: Evidence from a Community Sample”, Columbia Human Rights
Law Review, Volume 36, 2004.
If voting is unrelated to later criminal behavior, then legal changes that extend the franchise to
convicted felons are unlikely to affect crime or desistance rates. In that case, current policy
debates over felon disenfranchisement laws should pivot primarily on questions of political
rights and democracy. However, if those who vote are actually less likely to commit new crimes,
legal changes easing the right to vote for felons may facilitate reintegration efforts and reduce
rates of recidivism. The reintegrative effects of voting may have broader implications. The right
to vote is one of the defining elements of citizenship in a democratic polity n6 and participation
in democratic rituals such as elections affirms membership in the larger community for
individuals and groups. Because of all that voting represents in this society, voting can be viewed
as a proxy for other kinds of civic engagement associated with the avoidance of illegal activity.
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Resolved: In a democratic society, felons ought to retain the right to vote.
Disenfranchisement perpetuates static norms and laws by avoiding self-criticism
Jesse Furman, “Political Illiberalism: The Paradox of Disenfranchisement and the Ambivalence
of Rawlsian Justice”, Yale Law Journal, Volume 106, 1997.
Courts, therefore, have settled on what Foucault calls a "principle of moderation" to prevent the
application of social contract theory to its full extreme. Yet Foucault's critique of the theory is
still valid and the privileging of the exclusionary impulse over toleration remains evident. First,
there is still "an unequal struggle: on one side are all the forces, all the power, all the rights." It is
only in its beneficence that the state grants the offender any rights; the state is depicted as
generous rather than cruel and all ambivalence is removed from the exercise of its power.
Second, society still places full blame on the individual, shielding itself from a reconsideration of
its own norms and laws; "the defense of society"' justifies excluding criminals or treating
criminality as a form of dissonance rather than answering to it. Finally, while the "offender" no
longer loses all rights guaranteed by the "contract," he does lose the right that is fundamentally
connected to his equal membership in society, the vote. Perhaps it is to close the circle on the
depoliticization of crime and the criminal, that once crime is depoliticized by placing blame fully
on the individual, society also seeks to depoliticize the criminal himself.
Felon participation is necessary to solve many policy problems.
Regina Austin, Professor of Law at University of Pennsylvania, “Symposium on Race, Crime,
and Voting: Social, Political, and Philosophical Perspectives on Felony Disenfranchisement in
America: ‘The Shame of it All’: Stigma and the Political Disenfranchisement of Formerly
Convicted and Incarcerated Persons”, Columbia Human Rights Law Review, Volume 36, 2004.
To focus particularly on the impact of the ex-offender vote on the criminal justice system
exacerbates the stigma by portraying ex-offenders as totally self-interested. Indeed, "the
stereotype of the offender is that of an individual isolated from all [normal] social relations."
Yet, when the full effect of the stigma of conviction and incarceration on families and
communities is considered, it is clear that ex-offenders have an interest in the policies of the
plethora of public agencies that deal with housing, education, public health, mental health
(particularly drug addiction and domestic violence), child welfare, public assistance, and social
benefits.
Political participation fosters an awareness of others.
Richard L. Lipke, “The Disenfranchisement of Felons”, Law and Philosophy, Volume 20, No. 6,
2001.
Third, there is the educative interest in political participation. By participating actively in
democratic processes, individuals are encouraged to notice, acknowledge, and respond
constructively to the diverse lifestyles, projects, and concerns of others in the body politic. On a
modest interpretation of the educative interest, individuals benefit from having to more clearly
and persuasively articulate their own ideas, preferences, and concerns, and by learning to listen
to, compromise with, or otherwise accommodate the ideas, preferences, and concerns of other
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Resolved: In a democratic society, felons ought to retain the right to vote.
individuals. The claim that this is beneficial to individuals depends on the somewhat
controversial assumption that they will do better if they come to more fully accept that others
have commitments and projects with which they may not agree but which they have to live with
and perhaps even respect. Indeed, some theorists hope for more from the educative interest,
suggesting that democratic participation teaches individuals more than that there are limits to the
pursuit of their own private good. On this more robust conception, democratic participation
encourages citizens to develop a conception of the public good with which their own good is
bound up.
Felons will not vote for pro-crime platforms.
Regina Austin, Professor of Law at University of Pennsylvania, “Symposium on Race, Crime,
and Voting: Social, Political, and Philosophical Perspectives on Felony Disenfranchisement in
America: ‘The Shame of it All’: Stigma and the Political Disenfranchisement of Formerly
Convicted and Incarcerated Persons”, Columbia Human Rights Law Review, Volume 36, 2004.
Of course, civic endeavors by ex-offenders are particularly suspect with regard to laws pertaining
to crime and punishment. Their first-hand knowledge of the criminal justice and penal systems
calls their objectivity and impartiality into question. Yet, as Professor George Fletcher has
argued, "bias does not disqualify [other] people from voting. Indeed voting is precisely about
expressing biases, loyalties, commitments, and personal values. Excluding from the electorate
those who have felt the sting of the criminal law obviously skews the politics of criminal justice
toward one side of the debate." Furthermore, criminal justice is not the only item on the agenda
of most political communities; broader prohibitions on voting thus seem unjustified. The
political interests of ex-offenders likely extend beyond promoting changes in the criminal justice
system, since the impact of their own involvement with the system extends beyond themselves.
Society uses disenfranchisement in order to prevent contestation of existing values.
Jesse Furman, “Political Illiberalism: The Paradox of Disenfranchisement and the Ambivalence
of Rawlsian Justice”, Yale Law Journal, Volume 106, 1997.
Whether or not they are rooted in a similar insecurity, it is clear that the justification for
disenfranchisement and Rawls's reliance on punishment as a stabilizing device both follow from
the impulse to protect society's standards from contestation. In Rawls's case, one's ability to
contest society's standards is closed off by the imposition of the label "unreasonable"; in the case
of disenfranchisement, this labeling is complemented by the explicit loss of one's political status.
The criminal, in each instance, is created as the "other" to ward off the potential contestation of
society's norms.' For Rawls, the assumption of strict compliance and the emphasis on consensus
lead citizens of his well-ordered society to view the criminal as a "bad character" deserving of
punishment, even if such punishment is illiberal from the standpoint of justice itself. With
disenfranchisement, the act of creation is even clearer: The revocation of the right to vote itself
differentiates the criminal as abnormal-it is a permanent mark of a lower status. "The process of
making the criminal," Frank Tannenbaum writes, "is a process of tagging, defining, identifying,
segregating, describing, emphasizing, making conscious and self- conscious; it becomes a way of
stimulating, suggesting, emphasizing, and evoking the very traits that are complained of. The
emphasis on the individual nature of the criminal's act or character makes it appear as if the
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Resolved: In a democratic society, felons ought to retain the right to vote.
criminal brings this process and the resulting lower status on himself, but society imposes it,
acting to prevent a threat to the maintenance of its established standards.
Felons face unique policy issues that require their participation.
Regina Austin, Professor of Law at University of Pennsylvania, “Symposium on Race, Crime,
and Voting: Social, Political, and Philosophical Perspectives on Felony Disenfranchisement in
America: ‘The Shame of it All’: Stigma and the Political Disenfranchisement of Formerly
Convicted and Incarcerated Persons”, Columbia Human Rights Law Review, Volume 36, 2004.
Stigma and incarceration interrelate in aspects of family life that are generally hidden from
public view. A woman ashamed that she is giving up on her marriage [to an inmate], a son
ashamed of his father's addiction, a daughter ashamed of selling her body to pay her
grandmother's rent - these are things that do not make headline news, that are absent from stories
of what prison and street life are "really like." Far from being unconcerned about criminality,
familial integrity, and honesty, families of prisoners wrestle with each of these issues every day
in settings they often perceive as hostile and unforgiving. They are not shameless; they feel the
stigma that accompanies not only incarceration but all the other stereotypes that accompany it fatherlessness, poverty, and often, despite every intent to make it otherwise, diminished love.
Because of the silence, democratic decision making with regard to policies adversely affecting
the incarcerated and their families is ultimately impaired. The votes of their neighbors and the
decisions of their duly elected officials will not reflect the needs of this particularly vulnerable
segment of the population.
Prison litigation is often frivolous and creates court congestion.
The Harvard Law Review Association, “Developments in the Law: The Law of Prisons”,
Harvard Law Review, Volume 115, 2002.
During the congressional debate over the PLRA, supporters of the Act frequently referenced the
congestion of the federal docket with prisoner claims and characterized these claims as largely
frivolous. Senator Robert Dole complained that "[f]rivolous lawsuits ... tie up the courts, waste
valuable legal re- sources, and affect the quality of justice enjoyed by law-abiding citizens."
Proponents of prison litigation reform described a number of colorful examples of frivolous suits
including claims for the right to wear Reebok instead of Converse tennis shoes and the right to
have smooth rather than chunky peanut butter.
Felons would not vote to eliminate the laws that they broke.
Alec Ewald, “Symposium on Race, Crime, and Voting: Social, Political, and Philosophical
Perspectives on Felony Disenfranchisement in America: An ‘Agenda for Demolition’: The
Fallacy and the Danger of the ‘Subversive Voting’ Argument for Felony Disenfranchisement”,
Columbia Human Rights Law Review, Volume 36, 2004.
Disenfranchisement's defenders have never mustered any proof at all that those convicted of
crime would use their electoral power to rewrite the criminal law, and we have good evidence to
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Resolved: In a democratic society, felons ought to retain the right to vote.
the contrary. One journalist concluded after interviewing voting inmates in Maine and Vermont
that prisoners' political concerns "mirror those of other Americans." Another journalist
concluded that "one might think that criminals would be a solid liberal constituency," but
"interviews suggest there are a number of conservatives behind bars." Interviewing criminal
defendants, political scientist Jonathan D. Casper found that, with few exceptions, all "believed
that they had done something "wrong,' that the law they violated represented a norm that was
worthy of respect and that ought to be followed." Those charged with property crimes "felt that
laws against taking property from others were "good' laws and that such behavior should not be
tolerated but merited punishment." Moreover, Casper's defendants showed that they understood
"the idea of reciprocity upon which the law is based." When asked what they thought would
happen without laws against the crime they were accused of committing, Casper's subjects
answered that the behavior would become rampant, and that this would be a bad thing. People
convicted of crime, it seems, are far more likely to endorse the laws they've broken - to "accept
them as desirable guides for life" - than to join together and lobby for abolition of the criminal
code.
Felon disenfranchisement can increase recidivism.
Michael J. Cholbi, “A Felon’s Right to Vote”, Law and Philosophy, Volume 21, 2002.
But instead of contributing to criminal rehabilitation, FD is more likely to prevent criminals from
reintegrating into the community. Though the causes of crime are notoriously difficult to pin
down, alienation, social isolation, a sense of powerlessness, and disrespect for authority
undoubtedly play a substantial role. Unfortunately for proponents of FD, these are the very
attitudes that FD reinforces in the minds of felons. The message of FD is that criminals do not
matter, that they are pseudo-citizens unfit to contribute to community life. The disenfranchised
felon is "severed from the body politic and condemned to the lowest form of citizenship, where
voiceless at the ballot box ... The disinherited must sit idly by while others elect his civil leaders
and while others choose the fiscal and governmental policies which will govern him and his
family." The disenfranchised felon lacks an important tool for shaping the conditions of his
welfare, which can only lead to suspicion of the community that wields political power over him.
Felon disenfranchisement hurts neighborhoods.
Jeffrey Fagan, Valerie West, and Jan Holland, “Symposium on Race, Crime, and Voting: Social,
Political, and Philosophical Perspectives on Felony Disenfranchisement in America:
Neighborhood, Crime, and Incarceration in New York City”, Columbia Human Rights Law
Review, Volume 36, 2004.
Voter disenfranchisement of convicted felons creates a fourth dynamic that adversely affects the
political economy of neighborhoods with high incarceration rates. The inability to influence
political processes weakens leverage and access to important services that can moderate the risks
of crime, from educational resources to trash removal and recreation. It is no secret that
incarceration policy is embedded in a political process that benefits both corrections
professionals and lawmakers. While lawmakers derive political benefits from sustaining high
rates of incarceration, the accumulation of disenfranchised voters in their districts defangs
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Resolved: In a democratic society, felons ought to retain the right to vote.
putative re-election challenges. In this way, disenfranchisement weakens political leverage over
both state law and local policies that might moderate the practices that intensify incarceration
patterns.
Crime is a corollary of freedom.
Jesse Furman, “Political Illiberalism: The Paradox of Disenfranchisement and the Ambivalences
of Rawlsian Justice”, Yale Law Journal, Volume 106, 1997.
Emile Durkheim makes a similar point in The Rules of Sociological Method when he writes that
"there is no phenomenon which represents more incontrovertibly all the symptoms of normality"
than crime. "[S]ince there cannot be a society in which individuals do not diverge to some extent
from the collective type," he explains, "it is also inevitable that among these deviations some
assume a criminal character."' Crime, Durkheim argues, is the necessary corollary of freedom:
For [moral consciousness] to evolve, individual originality must be allowed to manifest itself.
But so that the originality of the idealist who dreams of transcending his era may display itself,
that of the criminal, which falls short of the age, must also be possible. One does not go without
the other.' If Durkheim's analysis is correct, as I believe the fact of dissonance suggests, then the
only realizable just society is one with an ineliminable level of criminality. To eliminate
criminality altogether would entail a power "unparalleled in history.
Felon disenfranchisement dilutes the political power of crime prone neighborhoods.
Jessie Allen, “Symposium on Race, Crime, and Voting: Social, Political, and Philosophical
Perspectives on Felony Disenfranchisement in America: Introduction”, Columbia Human Rights
Law Review, Volume 36, 2004.
There is still another way felony disenfranchisement burdens the voting rights of people
ostensibly not covered by these laws. In communities where many people with felony
convictions reside, even residents who are able to go to the polls find their electoral power
diluted by the loss of like-minded neighbors' votes. In the African-American and Latino
neighborhoods where the "War on Drugs" has been most aggressively fought, everyone's power
to influence statewide elections is diminished. Candidates may no longer campaign in these
communities and state representatives may become less responsive to their concerns. Thus
communities targeted by aggressive law enforcement policies lose the ability to hold lawmakers
accountable for the effects of those policies.
Voting gives ex-offenders a stake in social outcomes.
Christopher Uggen and Jeff Manza, “Symposium on Race, Crime, and Voting: Social, Political,
and Philosophical Perspectives on Felony Disenfranchisement in America: Voting and
Subsequent Crime and Arrest: Evidence from a Community Sample”, Columbia Human Rights
Law Review, Volume 36, 2004.
Taken as a whole, however, our statistical analysis suggests that a relationship between voting
and subsequent crime and arrest is not only plausible, but also supported by empirical evidence.
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Resolved: In a democratic society, felons ought to retain the right to vote.
We find consistent differences between voters and non-voters in rates of subsequent arrest,
incarceration, and self-reported criminal behavior. While the single behavioral act of casting a
ballot is unlikely to be the sole factor that turns felons' lives around, the act of voting manifests
the desire to participate as a law-abiding stakeholder in a larger society.
Crime plays an important role in political discourse.
Jesse Furman, “Political Illiberalism: The Paradox of Disenfranchisement and the Ambivalences
of Rawlsian Justice”, Yale Law Journal, Volume 106, 1997.
The existence of a certain level of crime, therefore, should not be treated as a phenomenon to be
cured; rather, it should be viewed as the sign of a healthy, well-ordered society with a degree of
laxity in its social life and norms. No longer should criminals be told that their nature is their
only misfortune or that they are like a sickness that needs be cured; in addition, they should be
told that society's norms contribute to their misfortune. Their assumptions suitably adjusted, the
"reasonable" citizens of justice as fairness and the jurists who shape American law would be
forced to acknowledge the responsibility to reflect on their own norms-the responsibility to
reevaluate the reasonableness of those norms, not simply to evoke them or to defend them
mindlessly. Until this happens, liberalism will remain illiberal, and addressing the true sources of
crime and dissonance will remain an unrealizable goal.
Felon disenfranchisement does not deter.
Richard L Lipke, “The Disenfranchisement of Felons”, Law and Philosophy, Volume 20, No. 6,
2001.
If the threat of imprisonment with all of its attendant terrors and degradations is not sufficient to
deter serious offenders, then it stretches credulity to argue that adding disenfranchisement will
suddenly do the trick. It should be noted that, in the United States at least, disenfranchisement is
rarely mentioned in the court proceedings assigning offenders their sentences. As a result, we
might reasonably wonder whether most would-be offenders even know that it is a loss they are
likely to suffer. And if they do know about it, is it a loss that is likely to play any significant role
in motivating most of them, given that they are unlikely to have been active participants in
political affairs to begin with? Of course, it might be argued that in more just and genuinely
democratic societies, all citizens would value the franchise to a greater extent. Also, its loss
could be duly noted by the courts in sentencing offenders, thus enhancing public knowledge of
its existence. Granting all of this, we still might reasonably doubt whether disenfranchisement's
marginal contributions to crime reduction would ever be significant enough to exceed its costs to
offenders.
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Resolved: In a democratic society, felons ought to retain the right to vote.
Felon disenfranchisement is not necessary for deterrence.
Sam Hirsch, Amici Curiae Brief for the National Black Police Association, the National Latino
Officers Association of America, and Former Law-Enforcement Officials in Johnson V. Bush,
2005.
Rather, deterrence flows from the other penal consequences of a felony conviction, including a
lengthy term of incarceration (by definition, a felony carries a potential prison sentence of more
than a year) and significant fines. If these consequences cannot deter a potential offender, it is
not credible to suggest that the loss of voting rights upon concluding post-incarceration
supervision would.
Felon disenfranchisement does not serve a compelling state interest.
Alysia Robben, “Social Justice in the 21st Century: Note: A strike at the Heart of Democracy:
Why Legal Challenges to Felon Disenfranchisement Laws Should Succeed”, University of the
District of Columbia Law Review, Volume 10, 2007
Neither this rationale, nor other reasons for criminal disenfranchisement, demonstrate the
necessity of these laws to secure a compelling state interest. Disenfranchisement laws do not
prevent voter fraud, create an informed electorate, or deter crime. They are not rehabilitative, nor
are they necessary or adequate for punishment, since they are imposed on all convicts "regardless
of the character of their offense." Furthermore, while these goals may be valid, there are other
means to achieve them that are less restrictive of a constitutionally-guaranteed right.
Felony disenfranchisement has no empirical deterrence effect.
Michael J. Cholbi, “A Felon’s Right to Vote”, Law and Philosophy, Volume 21, 2002.
Unfortunately for advocates of FD, little evidence exists suggesting that FD deters. We find that
states and nations that engage in FD do not enjoy uniformly lower crime rates than those that do
not. Among those states with the most extensive FD statutes (those that disenfranchise
incarcerated felons, felons on probation or parole, and ex-felons), some, such as Kentucky, Iowa,
and Virginia, report relatively low crime rates. However, some states with similarly extensive FD
statutes, including Florida, New Mexico, and Arizona, have some of the nation's highest crime
rates. In addition, Utah is the only state among those with no FD with a crime rate higher than
the national average. Thus, no positive correlation appears between low levels of criminal
behavior and disenfranchising felons, and a good deal of evidence actually points to a negative
correlation. FD also seems to have little impact on lowering crime nationally, since the U.S.,
virtually alone among Western nations in practicing FD, has one of the world's highest crime
rates.
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Resolved: In a democratic society, felons ought to retain the right to vote.
Voting is statistically correlated with decreased crime.
Christopher Uggen and Jeff Manza, “Symposium on Race, Crime, and Voting: Social, Political,
and Philosophical Perspectives on Felony Disenfranchisement in America: Voting and
Subsequent Crime and Arrest: Evidence from a Community Sample”, Columbia Human Rights
Law Review, Volume 36, 2004.
If civic participation is truly related to desistance from crime, however, voting effects should be
visible on self-reported criminal behavior as well as arrest and incarceration. Figure 3 considers
the relationship between voting and common property crimes and violent behavior. The figure
indicates that about 11% of the voters reported a property crime, compared to about 18% of the
non-voters. Similarly, about 27% of the voters reported violence or threats of violence, relative
to about 42% of the non-voters. Both of these contrasts represent statistically significant
differences (p < .01).
Social contract theories cannot justify felon disenfranchisement.
Alysia Robben, “Social Justice in the 21st Century: Note: A strike at the Heart of Democracy:
Why Legal Challenges to Felon Disenfranchisement Laws Should Succeed”, University of the
District of Columbia Law Review, Volume 10, 2007
The defendants point to both a theoretical purpose based on Locke's theory of the social contract
and simply state that it is reasonable that "perpetrators of serious crimes" should not take part in
electing law-makers and law enforcers. This rationale is commonly used but is unsound. First, it
rests on the incorrect view that the Florida felon disenfranchisement laws touch only the
"serious" criminals, rather than the reality that those convicted of less serious crimes are also
disqualified. Second, the defendant's reason voices a reminiscent concern for the "purity" of the
ballot box. The Supreme Court rejected "the premise that we can disenfranchise people based on
predictions of how they will vote" saying that a subclass of voters could not be "fenced out"
based on their likely voting choices. Third, the proffered reason imposes on the criminally
convicted a lifetime of conviction as a "perpetrator" and political banishment, even when they
have finished serving their debt to society. This harsh result particularly exceeds any legitimate
interest the state might have in excluding "serious" criminals from the polls.
Felon disenfranchisement can harm non-felons’ voting rights.
Jessie Allen, “Symposium on Race, Crime, and Voting: Social, Political, and Philosophical
Perspectives on Felony Disenfranchisement in America: Introduction”, Columbia Human Rights
Law Review, Volume 36, 2004.
Elsewhere, even people who have never been convicted of crimes sometimes find themselves
barred from voting by the administration of felony voting bans. Florida's repeated problems
administering its permanent voting ban highlight the perhaps irresistible opportunities for
political manipulation offered by a regime that categorically disenfranchises more than 5 percent
of the state's adult population. Investigations of the purge of Florida's election rolls before the
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Resolved: In a democratic society, felons ought to retain the right to vote.
presidential election of 2000 confirm that many law-abiding people were barred from voting that
year because their names were similar to those on a list of convicted felons.
Israel upheld the rights of incarcerated felons to vote
Marc Mauer, Assistant Director of The Sentencing Project, Legalaffairs.org debate club: Should
ex-felons be allowed to vote?, November 1, 2004.
http://www.legalaffairs.org/webexclusive/debateclub_disenfranchisement1104.msp
In 1996, the Israeli Supreme Court upheld the right of prisoners to vote. Intriguingly, the case
was brought on behalf of Yigal Amir, the assassin of Prime Minister Yitzhak Rabin, and
arguably the most despised citizen of his country. In upholding this fundamental right, the Court
noted that society must "separate contempt for his act from respect for his right."
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Resolved: In a democratic society, felons ought to retain the right to vote.
Negative Quotations
Felon disenfranchisement exists in many cultures.
Roger Clegg, George Conway III, and Kenneth Lee, “The Bullet and the Ballot?: The Case for
Felon Disenfranchisement Statutes”, American University Journal of Gender, Social Policy, and
the Law, Volume 14, 2006.
Contrary to the perceived wisdom of the mainstream media, felon disenfranchisement laws are
deeply rooted in the Western tradition as well as American history. As Judge Henry Friendly
explained, the Lockean notion of a social compact undergirds laws preventing felons from
voting: someone "who breaks the laws" may "fairly have been thought to have abandoned the
right to participate" in making them. Alexander Keyssar, a Harvard professor and a critic of
felon disenfranchisement laws, has acknowledged that such laws have "a long history in English,
European, and even Roman law." Similarly, a report issued by the Sentencing Project and
Human Rights Watch conceded that "disenfranchisement in the U.S. is a heritage from ancient
Greek and Roman traditions carried into Europe." And in recently upholding Florida's statute
barring felons from voting, the en banc Eleventh Circuit observed that "felon disenfranchisement
laws are unlike other voting qualifications" in that they are "deeply rooted in this Nation's
history."
Felon disenfranchisement has deep historical roots.
Jason Schall, “The Consistency of Felon Disenfranchisement with Citizenship Theory”, Harvard
BlackLetter Law Journal, Volume 22, 2006.
Punishments limiting the political rights of criminals have deep historical roots. Ancient Greeks
employed “infamy” to deny criminals the right to vote, appear in court, serve in the army, make
speeches, and attend assemblies. Those who threatened political harmony and consensus were
threatened with exile. The Romans adopted these Greek concepts, prohibiting the “infamous”
from holding office or voting and employing exile to serve as a merciful method of allowing
criminals to escape legal punishment, maintain their honor, and start anew far from their prior
home. Roman influence spread the use of civil disabilities throughout Europe. In England, as
well as elsewhere in Europe, those who had violated society’s norms lost society’s protections.
This generally resulted in
a death sentence. In England, the tradition of outlawry developed into the practice of “attainder.”
Under attainder, a criminal’s real and personal property would be seized and returned to the king.
The doctrine of “corruption of blood” dictated that attained criminals would lose the ability to
transfer land to heirs, under the theory that the perpetrator’s kin were tainted. Suffering a “civil
death,” or death in the eyes of the law, the attained could not sue, testify in court, serve as a
juror, or fulfill any other legal function.
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Resolved: In a democratic society, felons ought to retain the right to vote.
Disenfranchisement of felons is rooted in theories of human rights and is not oppressive.
Andrew Altman, “Democratic Self-Determination and the Disenfranchisement of Felons”,
Journal of Applied Philosophy, Volume 22, 2005.
It is true that such a preference would be insufficient if it were arbitrary or otherwise
unconnected to any normative considerations of political significance. Thus, if a majority of
citizens preferred to live in a state that deprives the franchise of those whose feet are larger than
size 12, their preference would carry no normative weight and disenfranchising anyone on
account of the preference would be wholly unjustifiable. The same would go for preferences
regarding the race, religion, ethnicity, sex, sexual orientation, and physical disability, among
other categories. However, the preference to live in a state where serious felonies are met with a
suspension of voting rights is not normatively arbitrary or ungrounded. Serious felonies violate
important normative constraints. One way to formulate the constraints is in terms of basic human
rights: the crimes violate such rights of their victims. However, one might use other normative
categories — obligation or utility — for example, in explicating the nature of the constraints.
The key point is that how the citizens of a state collectively decide to respond to the violation of
important normative constraints embodies in their laws constitutes an important part of the
identity of their political community.
The long history of felon disenfranchisement proves that it is not racist.
Roger Clegg, George Conway III, and Kenneth Lee, “The Bullet and the Ballot?: The Case for
Felon Disenfranchisement Statutes”, American University Journal of Gender, Social Policy, and
the Law, Volume 14, 2006.
That long history refutes any suggestion that felon disenfranchisement provisions are racially
motivated. Their antebellum origins show that they were aimed at whites and were maintained
for race-neutral reasons: before the ratification of the Fourteenth Amendment, the states were
free to, and the vast majority did, impose direct and express racial qualifications on the franchise.
As the en banc Eleventh Circuit observed in upholding Florida's felon disenfranchisement law,
"at that time, the right to vote was not extended to African-Americans, and, therefore, they could
not have been the targets of any [felon] disenfranchisement law." Over seventy percent of the
states in the Union in 1861 had felon disenfranchisement laws - at a time when most AfricanAmericans were still enslaved and did not have the right to vote. The pre-Civil War source of
these laws "indicates that felon disenfranchisement was not an attempt to evade the requirements
of the Civil War Amendments or to perpetuate racial discrimination forbidden by those
amendments."
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Resolved: In a democratic society, felons ought to retain the right to vote.
Disproportional harm to minorities can be more strongly attributed to other collateral
consequences.
Andrew Altman, “Democratic Self-Determination and the Disenfranchisement of Felons”,
Journal of Applied Philosophy, Volume 22, 2005.
[M]uch of the disproportionate racial harm done by the criminal justice system is not a matter of
the collateral consequences of punishment for felons and ex-felons but of the nature of the
formal punishment itself. Unreasonably lengthy terms of incarceration, the excessive use of
incarceration for drug offences, and the often inhumane conditions of imprisonment are central
aspects of that disproportionate harm. In the light of the foregoing considerations, one might
reasonably argue that eliminating disenfranchisement and other collateral sanctions imposed on
ex-felons and reforming unduly harsh penal policies are much more important than restoring the
franchise to felons for meeting the citizenry’s obligation to racial justice. Indeed, as far as
criminal justice policy is concerned, it is not clear why restoring the vote to those convicted of
serious felonies is even necessary to meeting the obligation, once the other policy changes are
made.
Even if felon disenfranchisement is unequal, it is not intentionally so.
Roger Clegg, George Conway III, and Kenneth Lee, “The Bullet and the Ballot?: The Case for
Felon Disenfranchisement Statutes”, American University Journal of Gender, Social Policy, and
the Law, Volume 14, 2006.
The existence of some form of racial discrimination therefore remains the cornerstone of section
2 claims; to be actionable, a deprivation of the minority group's right to equal participation in the
political process must be on account of a classification, decision, or practice that depends on race
or color. The scope of the Voting Rights Act is indeed quite broad, but its rigorous protections,
as the text of 2 suggests, extend only to defeats experienced by voters "on account of race or
color,' not on account of some other racially neutral cause.
Felon disenfranchisement is not discriminatory but based on moral qualities.
The Harvard Law Review Association, “Developments in the Law: The Law of Prisons”,
Harvard Law Review, Volume 115, 2002.
In relying on contract theory to justify disenfranchisement, courts have emphasized the
deliberate nature of the offender's action. As the court in Wesley v. Collins's wrote: "Felons are
not disenfranchised based on any immutable characteristic, such as race, but on their conscious
decision to commit an act for which they assume the risks of detection and punishment."' The
commission of a crime is interpreted as a declaration by the individual of his or her rejection of
the terms of the social contract.
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Resolved: In a democratic society, felons ought to retain the right to vote.
The logic of felon disenfranchisement being racist would dejustify all punishment.
Roger Clegg, George Conway III, and Kenneth Lee, “The Bullet and the Ballot?: The Case for
Felon Disenfranchisement Statutes”, American University Journal of Gender, Social Policy, and
the Law, Volume 14, 2006.
In McCleskey v. Kemp, the Supreme Court held that statistical disparities cannot be the basis for
a Fourteenth Amendment claim to overturn a criminal conviction or sentence; a defendant must
show that he himself or she herself suffered discrimination on the basis of race, and must show
that on the basis of things that happened in his or her case. "Because discretion is essential to the
criminal justice process," statistical evidence "is clearly insufficient to support any inference that
any of the decision-makers in [a particular] case acted with discriminatory purpose." This is so
even in a capital case, as McCleskey was. If the Voting Rights Act were construed to ban felon
disenfranchisement, then convicted felons could invoke the very same racial statistics that they
cannot invoke to assert the right to walk the streets. That result alone would be odd, to say the
least. And this "logic" moves swiftly from the incongruous to the unimaginable: the VRA would
probably abolish capital punishment nationwide because if similar statistical disparities appear in
capital sentences, then the execution of such sentences, which plainly effect a permanent denial
of the right to vote, would necessarily "result[] in a denial or abridgment of the right ... to vote on
account of race or color."
Felon disenfranchisement is proportional retribution for severe crimes.
Richard L. Lipke, “The Disenfranchisement of Felons”, Law and Philosophy, Volume 20, No. 6,
2001.
A different sort of retributive argument for disenfranchisement focuses on devising criminal
sanctions imposing penal losses on offenders commensurate with the harms they culpably caused
their victims. In particular, consider offenders whose crimes result in the deaths or drastic
diminishment of the quality of their victims' lives. Such offenders may be appropriately
sentenced to serve extended prison terms. In these kinds of cases it could be argued, on
retributive grounds, that offenders ought to suffer something akin to political death in addition to
incarceration. The state should treat them as political non-entities in much the way these
offenders treated their victims as moral non-entities. Disenfranchisement would deprive
offenders of more than just their freedom and hence, it could be argued, visit commensurate
losses on them.
Other punishments that are similar to felon disenfranchisement are also justified.
Roger Clegg, George Conway III, and Kenneth Lee, “The Bullet and the Ballot?: The Case for
Felon Disenfranchisement Statutes”, American University Journal of Gender, Social Policy, and
the Law, Volume 14, 2006.
Third, society considers convicts, even those who have completed their prison terms, to be less
trustworthy than non-convicted citizens. In other areas of the law, full rights and privileges are
not always restored to convicts, even though they may have "paid their debt to society." For
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Resolved: In a democratic society, felons ought to retain the right to vote.
example, federal law prohibits the possession of a firearm for anyone indicted for or convicted of
a felony punishable by at least one year in prison. Also under federal law, anyone who has a
"charge pending" or has been convicted of a crime punishable by imprisonment for one year or
more cannot serve on a jury. So if someone who has a "charge pending" against him is deemed
incapable of sitting in judgment of the fate of a single litigant, it hardly seems unreasonable to
say that someone convicted of a felony cannot help shape the fate of a city, a state, or the entire
nation.
Other rights limitations on felons could similarly justify disenfranchisement.
Susan Marquardt, “Deprivation of a Felon’s Right to Vote: Constitutional Concerns, Policy
Issues, and Suggested Reform for Felony Disenfranchisement Law”, University of Detroit Mercy
Law Review, Volume 82, 2005.
The third point raised by supporters of felony disenfranchisement is that there are other types of
civil rights in addition to the loss of voting rights, of which a felon is permanently deprived
beyond incarceration. If it is permissible to permanently prevent a former felon from holding
public office or possessing a firearm, it is suggested that a state legislature is justified in handing
down automatic and permanent disenfranchisement of an individual upon the commission of a
felony.
Felon disenfranchisement is consistent with views on punishment.
Roger Clegg, George Conway III, and Kenneth Lee, “The Bullet and the Ballot?: The Case for
Felon Disenfranchisement Statutes”, American University Journal of Gender, Social Policy, and
the Law, Volume 14, 2006.
That same reasoning motivated Massachusetts then-governor Paul Celluci in 2000 to support a
ballot initiative stripping incarcerated felons of the right to vote after prisoners began to organize
a political action committee. A Massachusetts state legislative leader commented about the
State's now-abolished practice of allowing incarcerated felons to vote: "It makes no sense. We
incarcerate people and we take away their right to run their own lives and leave them with the
ability to influence how we run our lives?"
Felon disenfranchisement is justified under the Constitution.
Roger Clegg, George Conway III, and Kenneth Lee, “The Bullet and the Ballot?: The Case for
Felon Disenfranchisement Statutes”, American University Journal of Gender, Social Policy, and
the Law, Volume 14, 2006.
The framers of the Civil War Amendments saw nothing racially discriminatory about felon
disenfranchisement. To the contrary, they expressly recognized the power of the states to
prohibit felons from voting. Section 2 of the Fourteenth Amendment provides that a state's denial
of voting rights "for participation in rebellion, or other crime" could not serve as a basis for
reducing their representation in Congress. As the Supreme Court held in Richardson v. Ramirez,
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Resolved: In a democratic society, felons ought to retain the right to vote.
Section 2 is thus "an affirmative sanction" by the Constitution of "the exclusion of felons from
the vote" - even felons who, like the plaintiffs in Ramirez, had finished their sentences.
Even laws that have expanded voting have provisions that justify disenfranchisement.
Roger Clegg, George Conway III, and Kenneth Lee, “The Bullet and the Ballot?: The Case for
Felon Disenfranchisement Statutes”, American University Journal of Gender, Social Policy, and
the Law, Volume 14, 2006.
These are the only references to felon disenfranchisement made in reports to the Voting Rights
Act of 1965. Thus, its legislative history shows that: "Congress did not intend ... the Voting
Rights Act to cover felon disenfranchisement provisions[;]" "tests for literacy or good moral
character should be scrutinized, but felon disenfranchisement provisions should not[;]"
"legislators intended to exempt the voting restrictions of felons from the statute's coverage[;]"
"the Voting Rights Act was not designed to reach felon disenfranchisement provisions[;]" and
"neither house of Congress intended to include felon disenfranchisement within the statute's
scope."
Direct attacks on democracy logically justify disenfranchisement.
Richard L Lipke, “The Disenfranchisement of Felons”, Law and Philosophy, Volume 20, No. 6,
2001.
Fortunately, more focused and persuasive arguments in support of disenfranchising felons can be
formulated. One of them begins with the claim that certain crimes, by their very natures,
constitute direct assaults on democratic forms of political organization. Such crimes consist
either of attempts to overthrow or undermine democratic governments, as in cases of treason or
sedition, or efforts to manipulate or thwart the outcomes of democratic elections, as in cases of
ballot tampering or other types of electoral fraud. Not only do democratic governments seem
warranted in prohibiting conduct that threatens their effective and appropriate functioning, a
plausible case can be made that those guilty of such crimes are prime candidates for
disenfranchisement. Their offenses, it will be argued, are different from other kinds of criminal
offenses, since they exhibit obvious contempt for democratic political processes. As a matter of
fairness, the argument continues, it is only fitting that those who act in ways inimical to the
operation of democratic governments should be denied the opportunity to participate in
determining who will occupy official roles in such governments or the policies enacted and
enforced. Those prepared to act in ways that deprive others of realization of the interests served
by democratic political participation cannot consistently demand that the state continue to secure
such interests for them by not interfering with their exercise of the franchise.
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Resolved: In a democratic society, felons ought to retain the right to vote.
Even legislation since 2000 has ensconced felon disenfranchisement.
Roger Clegg, George Conway III, and Kenneth Lee, “The Bullet and the Ballot?: The Case for
Felon Disenfranchisement Statutes”, American University Journal of Gender, Social Policy, and
the Law, Volume 14, 2006.
Not only that, in considering what ultimately became the Help America Vote Act, the Senate
actually voted on a floor amendment that would have required states to allow felons to vote after
they had completed their terms of incarceration, parole, or probation. The proposal would only
have applied to federal elections - and its sponsors emphasized they had no quarrel with denying
the franchise to convicts who were still serving their sentences. In the words of the principal
sponsor, Senator Reid, who was then the majority whip, “We have a saying in this country: "If
you do the crime, you have to do the time." I agree with that ... . The amendment ... is narrow in
scope. It does not extend voting rights to prisoners. I don't believe in that. It does not extend
voting rights to ex-felons on parole, even though eighteen States do that.” Despite being "narrow
in scope," the amendment was rejected by a large bipartisan majority: thirty-one yeas, sixty-three
nays.
The Voting Rights Act does not prevent felon disenfranchisement.
Roger Clegg, George Conway III, and Kenneth Lee, “The Bullet and the Ballot?: The Case for
Felon Disenfranchisement Statutes”, American University Journal of Gender, Social Policy, and
the Law, Volume 14, 2006.
Since 1982, Congress has made it easier for states to disenfranchise felons." The National Voter
Registration Act of 1993 not only provides that a felony conviction may be the basis for
canceling a voter's registration, but requires federal prosecutors to notify state election officials
of federal felony convictions. The Help America Vote Act of 2002 actually instructs state
election officials to purge disenfranchised felons "on a regular basis" from their computerized
voting lists. The enactment of these provisions plainly "suggests that Congress did not intend to
sweep felon disenfranchisement laws within the scope of the VRA."
Felon disenfranchisement is within the legitimate scope of state authority.
Roger Clegg, George Conway III, and Kenneth Lee, “The Bullet and the Ballot?: The Case for
Felon Disenfranchisement Statutes”, American University Journal of Gender, Social Policy, and
the Law, Volume 14, 2006.
Second, disenfranchisement has traditionally been deemed a part of a punishment for committing
a crime. Criminal punishment can be meted out in various ways, including imprisonment, fines,
probation, and, yes, the withdrawal of certain rights and privileges. In the American system, it
has long been established that "the States possess primary authority for defining and enforcing
the criminal law."
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Resolved: In a democratic society, felons ought to retain the right to vote.
Felon disenfranchisement can be justified to prevent fraud.
Jason Schall, “The Consistency of Felon Disenfranchisement with Citizenship Theory”, Harvard
BlackLetter Law Journal, Volume 22, 2006.
Supporters of felon disenfranchisement contend that the practice is necessary to prevent voter
fraud. In republican fashion, this argument is premised upon the convict’s lack of virtue. One
who has violated the law in the past is thought to lack virtue and therefore cannot be trusted to
follow the law in the future. The convict is therefore likely enough to violate voting laws that she
must be disenfranchised to protect the honesty of the electoral system.
Felon disenfranchisement protects the purity of the ballot box.
Jesse Furman, “Political Illiberalism: The Paradox of Disenfranchisement and the Ambivalence
of Rawlsian Justice”, Yale Law Journal, Volume 106, 1997.
The legal opinions on disenfranchisement that rely on civic republicanism implicitly suggest that
this is the case. For instance, in a widely cited decision on disenfranchisement, Washington v.
State, the court ruled: The manifest purpose is to preserve the purity of the ballot box, which is
the sure foundation of republican liberty, and which needs protection against the invasion of
corruption, just as much as against that of ignorance, incapacity, or tyranny. The evil infection of
the one is not more fatal than that of the other. The presumption is, that one rendered infamous
by conviction of felony, or other base offense indicative of great moral turpitude, is unfit to
exercise the privilege of suffrage, or to hold office, upon terms of equality with freemen who are
clothed by the State with the toga of political citizenship. It is proper, therefore, that this class
should be denied a right, the exercise of which might sometimes hazard the welfare of
communities, if not that of the State itself, at least in close political contests. The exclusion... [is]
imposed for protection, and not for punishment… The focus here is not simply on the
individual's lack of requisite moral fortitude, but on the potential for this lack of moral fortitude
to spread to others, like an "evil infection.
Felons would not vote in a way that serves the public good.
Richard L Lipke, “The Disenfranchisement of Felons”, Law and Philosophy, Volume 20, No. 6,
2001.
While felons may have preferences for political outcomes that would be expressed by voting,
those preferences are arguably ones that law-abiding citizens should not allow any influence over
election and legislative outcomes. Serious offenders, it may be argued, should be disenfranchised
because if they are not, they are likely to vote in ways that do not serve the public interest in
crime reduction. They may, in fact, vote for those who would seek to advance a host of "criminal
interests." These interests might include the decriminalization of many acts, lower rates of
criminal prosecutions, reductions in sanctions for crimes, less use of incarceration, and better
prison conditions.
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Resolved: In a democratic society, felons ought to retain the right to vote.
Since felons refuse to obey the democratic processes, they don’t deserve to participate.
Richard L Lipke, “The Disenfranchisement of Felons”, Law and Philosophy, Volume 20, No. 6,
2001.
It might be argued, however, that all crimes, or at least all serious crimes, do represent something
of an assault on democratic political practices. It might be claimed that, as a matter of fairness,
individuals are entitled to participate in democratic political processes only if they are prepared
to obey the laws such processes yield. Criminal offenders are unwilling to obey the laws that
result from everyone's exercise of the franchise, and thus have their rights to vote justifiably
suspended, at least for some period of time. The contrast between typical criminal offenders and
those who commit acts of nonviolent civil disobedience might be brought in to bolster this
argument. The latter, though they violate established legal rules, submit to the authority of the
democratic majority by accepting the punishment meted out by the law. Most criminal offenders
are not like this, however. They violate laws and seek to avoid apprehension by authorities and
judgment by the courts. Thus, their contempt for democratic political processes is manifest.
Society limits other rights of ex-felons because they are not trustworthy.
Roger Clegg, George Conway III, and Kenneth Lee, “The Bullet and the Ballot?: The Case for
Felon Disenfranchisement Statutes”, American University Journal of Gender, Social Policy, and
the Law, Volume 14, 2006.
Even outside the realm of civic rights and privileges, society recognizes that an ex-convict may
be less reliable than others. For example, employers routinely ask prospective employees
whether they have been arrested (let alone convicted of a felony) because they suspect that the
mere fact of an arrest may be an indication of untrustworthiness.
States have legitimate control over voting rights.
Brannon Latimer, “Can Felon Disenfranchisement Survive under Modern Conceptions of Voting
Rights?: Political Philosophy, State Interests, and Scholarly Scorn. SMU Law Review, Volume
59, 2006.
Because we know voting is a fundamental right, an important question is whether fundamental
rights can be revoked or suspended by a mere regulation. The answer is clearly yes. While the
Reynolds Court elevated the importance of voting, its holding did not require states to repeal
their various franchise regulations. Organizing and controlling elections is a complicated task,
and every state must regulate the intricacies of the process, including voter registration dates, the
cutoff date, distribution of absentee ballots, voting-by-mail, early voting options, and the
frequency of voting roll "purges." States regulate who is eligible to vote and routinely exclude
aliens, children, and the mentally incompetent, as well as felons. States also implement
durational residency requirements for voting. The regulatory nature of these provisions is
unassailable - states do not punish aliens or new residents by revoking their voting rights. Thus,
on a practical level, the fact that voting rights are fundamental does not place them beyond the
reach of state regulation.
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Resolved: In a democratic society, felons ought to retain the right to vote.
Allowing felons to vote allows the potential for electoral fraud.
Susan Marquardt, “Deprivation of a Felon’s Right to Vote: Constitutional Concerns, Policy
Issues, and Suggested Reform for Felony Disenfranchisement Law”, University of Detroit Mercy
Law Review, Volume 82, 2005.
Promoters of felony disenfranchisement claim that preventing convicted felons from voting will
protect the public from fraud at the ballot box and other electoral crimes. This stance assumes
that a significant percentage of felons have prior involvement with electoral misconduct, or have
an affinity to commit those types of crimes in the future regardless of whether or not they remain
incarcerated. As a result of this anticipated activity, the election process would become
unreliable.
Voting rights can be taken for the sake of communal preservation.
Jason Schall, “The Consistency of Felon Disenfranchisement with Citizenship Theory”, Harvard
BlackLetter Law Journal, Volume 22, 2006.
One such justification is that felons’ immorality prevents them from voting responsibly. For
republicans, the franchise is not a tool for the voter to use in her best interest, it is a trust granted
by the community that is to be operated for the community’s good. Felons, lacking virtue, cannot
be trusted to exercise the franchise with the good of the community in mind. In addition to the
“purity of the ballot box” theory, Washington expressed the fear that criminals would vote in
ways that undermined the good of the community, “It is proper . . . that this class should be
denied a right, the exercise of which might sometimes hazard the welfare of communities, if not
that of the State itself, at least in close political contests.
Based on the social contract, law-breakers abandon the right to participate in further
administering the contract
Brannon Latimer, “Can Felon Disenfranchisement Survive under Modern Conceptions of Voting
Rights?: Political Philosophy, State Interests, and Scholarly Scorn. SMU Law Review, Volume
59, 2006.
Another important inquiry is whether there is a philosophical theory which can justify felon
disenfranchisement as something other than speech restrictions. Modern case law looks to
Locke's social contract theory for justification. Under this rationale, the right to vote is revoked
from felons not because of the way they might vote, but because their citizenship status is
demoted or destroyed as a consequence of their criminal behavior. In the words of the Sixth
Circuit, "[a] man who breaks the laws he has authorized his agent (the legislature) to make for
his own governance could fairly have been thought to have abandoned the right to participate in
further administering the compact." Judge Friendly of the Second Circuit articulated this idea
more thoroughly, explaining: The early exclusion of felons from the franchise by many states
could well have rested on Locke's concept, so influential at the time, that by entering into society
every man "authorizes the society, or which is all one, the legislature thereof, to make laws for
him as the public good of the society shall require, to the execution whereof his own assistance
(as to his own decrees) is due." A man who breaks the laws he has authorized his agent to make
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Resolved: In a democratic society, felons ought to retain the right to vote.
for his own governance could fairly have been thought to have abandoned the right to participate
in further administering the compact.
Felon disenfranchisement can be justified to strengthen the community.
Susan Marquardt, “Deprivation of a Felon’s Right to Vote: Constitutional Concerns, Policy
Issues, and Suggested Reform for Felony Disenfranchisement Law”, University of Detroit Mercy
Law Review, Volume 82, 2005.
One of the most commonly cited reasons in support of felony disenfranchisement is that banning
prisoner voting rights ensures "purity of the ballot box." This is based on the premise that
criminals are less likely to be trustworthy and may not be depended upon to vote in the best
interests of our country. Advocates of this viewpoint infer that the trustworthiness of a convicted
criminal may not be rehabilitated upon serving a sentence. A related position is that the right to
vote is not only a right but also a privilege, and that the privilege may be withheld when
appropriate.
Voting rights can be taken when people do not have a sufficient stake in the community.
Jason Schall, “The Consistency of Felon Disenfranchisement with Citizenship Theory”, Harvard
BlackLetter Law Journal, Volume 22, 2006.
The fear of subversive voting can also be phrased as a question of loyalty. Roger Clegg points
out that foreigners, though affected by our country’s laws, are not permitted to vote in American
elections. “People have a right to have a say in governing themselves, but only if we are
reasonably sure that they will exercise that right in good faith–-that they share a common
commitment to our nation, our government, and our laws.” Felons do not have that commitment
and are not “trustworth[y].”
Felon disenfranchisement is justified to send a message about crime.
Jason Schall, “The Consistency of Felon Disenfranchisement with Citizenship Theory”, Harvard
BlackLetter Law Journal, Volume 22, 2006.
Another justification for felon disenfranchisement is the expressive function that it serves. This
theory focuses on “the educative message we send, through the law, to all of us—expressing who
we are and what we expect of one another as a democratic community.” Felon
disenfranchisement therefore emphasizes the strong bonds between citizens. It serves to define
the bounds of the polity, constricting full membership to those who respect and abide by the law.
It also signifies the community’s moral outrage at the conduct of the convict and labels her as
“blameworthy.” It makes political participation a somewhat exclusive badge of honor that can
only be donned by those who live up to a certain moral standard, thereby possibly increasing its
value to those who hold it. Simultaneously, we are reminded of the duties of self-government
and the reality that society cannot be good and just if its citizens, the sovereigns, do not value
and practice goodness and justice. Felon disenfranchisement can be seen as an integral part of the
civic education cherished by republicans.
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Resolved: In a democratic society, felons ought to retain the right to vote.
Disenfranchisement is a valid tool for societal self-determination
Andrew Altman, “Democratic Self-Determination and the Disenfranchisement of Felons”,
Journal of Applied Philosophy, Volume 22, 2005.
One can deny that the right to vote is a privilege rather than a right, while still holding that taking
the right away from the felons is a legitimate exercise of democratic self-determination. The
right to vote is not a privilege because all mentally competent, adult citizens of a state have a
strong presumptive claim to the franchise. Yet, acknowledging the validity of such a claim does
not bar one from arguing that a democratic state has the right to decide whether individuals who
commit serious felonies, having already had their right to vote presumptively recognized, are
now to have that right suspended. The suspension need not be so much a matter of meting out
punishment as making a statement about the standards to which the state will hold each citizen if
she is to retain her claim to be a full and equal member of the political community.
Voting felons could undermine the rule of law.
Susan Marquardt, “Deprivation of a Felon’s Right to Vote: Constitutional Concerns, Policy
Issues, and Suggested Reform for Felony Disenfranchisement Law”, University of Detroit Mercy
Law Review, Volume 82, 2005.
Advocates of felony disenfranchisement argue that a ban on voting rights prevents felons from
joining together to vote for changes in the law that are detrimental to the public. Felons are
perceived as having the ability to form a virtual government lobbyist group that will seek the
elimination of criminal prosecution and penalties where possible, ultimately harming the general
population.
Some disenfranchisement is necessary to invigorate respect for law.
Jason Schall, “The Consistency of Felon Disenfranchisement with Citizenship Theory”, Harvard
BlackLetter Law Journal, Volume 22, 2006.
A temporary period of disenfranchisement may also serve to remind convicted felons of their
responsibilities to the public as a whole. If criminals “have been shown to manifest flagrant
disrespect for the laws, which in a democracy have a uniquely intimate link to participation in
the electoral process,” perhaps being removed from the electoral process will reinvigorate their
respect for it.
Felon disenfranchisement is just a subset to the general forfeiture of the rights.
Michael J. Cholbi, “A Felon’s Right to Vote”, Law and Philosophy, Volume 21, 2002.
Locke wrote that we can surrender our power over our own lives to others as "the effect only of
Forfeiture, which the Aggressor makes of his own Life, when he puts himself into the state of
war with another." We put ourselves in a state of war with another when we attempt to kill or
enslave another. By our acts of aggression, we forfeit our natural right not to be enslaved or to be
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Resolved: In a democratic society, felons ought to retain the right to vote.
denied our rights, and other persons or the government may rightfully exact punishment from us.
Hence, we might conclude that criminal wrongdoers forfeit their right to vote as a consequence
of forfeiting their more general rights to life or liberty.
Bringing voting booths to prisons greatly burdens the state.
Brannon Latimer, “Can Felon Disenfranchisement Survive under Modern Conceptions of Voting
Rights?: Political Philosophy, State Interests, and Scholarly Scorn. SMU Law Review, Volume
59, 2006.
If felon disenfranchisement becomes unconstitutional, states would likely be required to bring
voting booths to prisoners, or at least provide an absentee voting system for incarcerated felons.
This would complicate election administration, impose heavy costs on state election
commissions, and create a new set of security issues for state governments to solve. Thus, states
have a legitimate interest in felon disenfranchisement given the administrative difficulties and
expenses of providing voting booths to those in prison. At the very least, the decision of fortyeight states to avoid the difficulties of running polls in prisons should be respected.
Allowing felons to vote could disrupt prisons.
Susan Marquardt, “Deprivation of a Felon’s Right to Vote: Constitutional Concerns, Policy
Issues, and Suggested Reform for Felony Disenfranchisement Law”, University of Detroit Mercy
Law Review, Volume 82, 2005.
One area for concern is that a process permitting prisoners to vote would disrupt prison
operations. The concern for interference with day-to-day prison operations can range from
consideration of potential security breaches, to lack of personnel, to proper processing of the
voting requests.
Enfranchised felons can cause a gradual shift towards pro-crime policies.
Brannon Latimer, “Can Felon Disenfranchisement Survive under Modern Conceptions of Voting
Rights?: Political Philosophy, State Interests, and Scholarly Scorn. SMU Law Review, Volume
59, 2006.
However, through a narrow, gradual process, the effects of such a platform could be attained. A
"pro-drug" or "anti-incapacitation" political position is certainly feasible, and it is not
unreasonable to suspect that felons would favor such a promise in greater numbers than the
general public. Particularly in a local election where turnout and voting totals are low, there is
the potential for such a bloc to corrupt the outcome of an election, not because the way an
individual might cast his vote, but the way candidates might target and influence incarcerated
groups. Such an event would likely have an immediate and damaging effect on local elections,
tainting their outcomes with anti-social influences. This rationale may avoid the "fencing out"
limitation because it is not focused on the preferences of a voter but an illegitimate manipulation
of the voting process.
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Resolved: In a democratic society, felons ought to retain the right to vote.
Crimes that severely harm the agency of other people can justify disenfranchisement.
Richard L Lipke, “The Disenfranchisement of Felons”, Law and Philosophy, Volume 20, No. 6,
2001.
A different sort of retributive argument for disenfranchisement focuses on devising criminal
sanctions imposing penal losses on offenders commensurate with the harms they culpably caused
their victims. In particular, consider offenders whose crimes result in the deaths or drastic
diminishment of the quality of their victims' lives. Such offenders may be appropriately
sentenced to serve extended prison terms. In these kinds of cases it could be argued, on
retributive grounds, that offenders ought to suffer something akin to political death in addition to
incarceration. The state should treat them as political non-entities in much the way these
offenders treated their victims as moral non-entities. Disenfranchisement would deprive
offenders of more than just their freedom and hence, it could be argued, visit commensurate
losses on them.
Felons can threaten local officials who are responsible for their incarceration.
Brannon Latimer, “Can Felon Disenfranchisement Survive under Modern Conceptions of Voting
Rights?: Political Philosophy, State Interests, and Scholarly Scorn. SMU Law Review, Volume
59, 2006.
While most who consider the merits and effects of disenfranchisement immediately focus on
implications for national elections, the picture looks quite different at the local level. States have
more immediate and intimate interests in felon disenfranchisement regulations, as local events
and outcomes are more sensitive to changes in policy. States hold local elections for lawmakers
such as the city council and school boards. They elect law enforcement officials such as sheriffs
and district attorneys. Most states also elect state court judges as well - the individuals who
interpret the law and who personally sentence felons in criminal cases. Problems arise if felons
are permitted to vote in this context. Elected officials executing their duties may become the
targets of felons' personal and organized attacks. While the opponents of disenfranchisement
think it absurd that prisoners or ex-prisoners could organize a voting bloc, their skepticism
appears misplaced when the personal element of community crime is present, especially if voting
booths are brought to prisons themselves. Given the right to vote from the jail cell, would not
candidates campaign there? Admittedly, it is unlikely that a candidate for public office would run
on a "pro-crime" platform in a broad sense.
Rather than retaining the right to vote, felons should have to earn it.
Richard L Lipke, “The Disenfranchisement of Felons”, Law and Philosophy, Volume 20, No. 6,
2001.
Those who have completed their sentences may remain hostile to democratic institutions or
unwilling to comply with the laws they enact. Perhaps ex-offenders of these two types should be
required to petition the courts for reinstatement of the franchise. Reinstatement could be made
contingent upon demonstration of their willingness to respect democratic institutions and comply
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Resolved: In a democratic society, felons ought to retain the right to vote.
with their laws, as evidenced, for instance, by a clean criminal record for some appropriate
period of time.
Adding a felon disenfranchisement sentencing phase is a viable option for trials.
Susan Marquardt, “Deprivation of a Felon’s Right to Vote: Constitutional Concerns, Policy
Issues, and Suggested Reform for Felony Disenfranchisement Law”, University of Detroit Mercy
Law Review, Volume 82, 2005.
The objectives of supporters of felony disenfranchisement and concerns of adversaries of felony
disenfranchisement would be better served if the loss of voting rights were administered through
the criminal sentencing process. In other words, rather than voting rights being rescinded
automatically upon the commission of a felony, a judge would consider whether to include
disenfranchisement as a part of criminal sentencing on a case-by-case basis. Factors a judge may
consider prior to including disenfranchisement as a portion of criminal sentencing would be the
type of crime committed, the impact of that crime on the victim, and the individual's prior
criminal record.
Restrictions on voting rights is often temporary.
Jeff Manza and Christopher Uggen, “Punishment and Democracy: Disenfranchisement of
Nonincarcerated Felons in the United States”, Perspectives on Politics, Volume 2, No. 3, 2004.
Yet the full impact of the criminal punishment boom is tempered by some important limitations.
Most convicted felons, for instance, eventually get their voting rights restored. In fact, we have
estimated (with life-table demographic models adjusting for recidivism and mortality, the same
approach used to estimate the disenfranchised ex-felon population) that there are now
approximately 13.3 million Americans who have a felony conviction on their record (about 6.5
percent of the adult population). Only about one-third of that group is currently prevented from
voting. In addition, many states liberalized their laws in the period immediately preceding the
recent boom in criminal punishment, and in its early stages.
There are alternatives to voting which are more effective.
Richard L Lipke, “The Disenfranchisement of Felons”, Law and Philosophy, Volume 20, No. 6,
2001.
In considering felon disenfranchisement, we must keep in mind that participation in democratic
elections is but one way in which individuals realize their interests in democratic participation.
Indeed, it might be argued that having the legal right to vote is neither necessary nor sufficient
for realization of the relevant interests. It is not necessary because there are other ways of
participating in democratic political affairs that are equally, if not more, conducive to realization
of the relevant interests. For instance, citizens can lobby elected representatives, publish their
ideas or policy proposals, or in other ways make their views known, thus entering into debates
about political affairs and having some influence over democratic decision-making. It is not
sufficient, some will argue, because merely voting in periodic elections may not promote the
relevant interests very much, especially in the absence of other participative activities by
individuals.
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Resolved: In a democratic society, felons ought to retain the right to vote.
Unless in a pure participatory democracy, voting is often meaningless.
Richard L Lipke, “The Disenfranchisement of Felons”, Law and Philosophy, Volume 20, No. 6,
2001.
Others might contend that voting is relatively meaningless in nominally democratic societies
where wealth and economic power are the real forces that determine political outcomes. Still,
those who take this latter approach might agree that voting would play a more significant role in
promoting realization of the interests grounding the right to political participation in societies
which instituted genuine participatory democracy on a range of social and economic issues. In
any case, we must be careful to not exaggerate the importance of the legal right to vote. While it
may play an important, or even leading, role in securing realization of the status, outcome, and
educative interests, it seems we cannot say that, by itself, its retention ensures their realization or
its loss ensures their diminishment.
Eliminating felon disenfranchisement may harm minorities.
Roger Clegg, George Conway III, and Kenneth Lee, “The Bullet and the Ballot?: The Case for
Felon Disenfranchisement Statutes”, American University Journal of Gender, Social Policy, and
the Law, Volume 14, 2006.
In fact, the abolition of felon disenfranchisement laws may have the unintended effect of creating
"anti-law enforcement" voting blocs and victimizing the vast majority of law-abiding minority
citizens who live in high-crime urban areas. Ultimately the real solution is to deter and prevent
the crimes from being committed, not to create loopholes and exceptions for punishments.
Democracies "ought" not make the moral decision, but has the free choice to prefer any
system of rules
Andrew Altman, “Democratic Self-Determination and the Disenfranchisement of Felons”,
Journal of Applied Philosophy, Volume 22, 2005.
The citizens of a legitimate democratic state have a broad collective right to order their own
affairs as they choose. The exercise of this right has resulted in the wide diversity of economic,
cultural, and political arrangements and policies found in existing liberal and social democratic
states. This diversity extends to the basic legal rights of citizens, including matters relating to the
vote. For example, there are many different versions of proportional representation that various
democratic states employ in electing their national legislatures. Additionally, some states use a
district-based, “first past-the-post” system instead of proportional representation. Even
conceding that strong arguments can be made for the superiority of a given electoral system as a
matter of political morality, the citizens of a particular state have the right to choose another. A
right to collective self-determination would have little, if any, meaning if the citizens of a state
operated under an obligation to always to choose the morally optimal policies. Moreover, in
many cases, it is simply indeterminate as to which system is morally most justifiable, or there is
simply a substantial range of reasonable disagreement that cannot be eliminated. As with
individual autonomy, the right of collective self-determination must include many eligible
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Resolved: In a democratic society, felons ought to retain the right to vote.
options for the citizens of a state to decide democratically in defining the identity of their
political community.
We shouldn't arbitrarily limit democratic power
Andrew Altman, “Democratic Self-Determination and the Disenfranchisement of Felons”,
Journal of Applied Philosophy, Volume 22, 2005.
Current discussion of criminal disenfranchisement has neglected just this right to democratic
self-determination. As with electoral systems, different democratic states have chosen very
different policies with respect to the right to vote of felons. It is true that the range of permissible
policies is far from unlimited, but the same is true of permissible electoral systems. And just as
with the case of electoral systems, it would be a mistake to demarcate the range of what is
permissible without taking into account the right of citizens to define democratically their own
state’s political identity.
Disenfranchisement isn't mandatory but it's a valid option for felons
Andrew Altman, “Democratic Self-Determination and the Disenfranchisement of Felons”,
Journal of Applied Philosophy, Volume 22, 2005.
Consider the following hypothetical case. A democratic state votes in favour of a law that takes
the franchise away from any citizen who is found guilty of genocide or crimes against humanity.
It is perfectly possible that the main motivation for the law is not to punish the criminal — a
suitable term of imprisonment or perhaps imposition of the death penalty will take care of that —
but to put the criminal at political arm’s length from the community, that is, to deem him as one
who has failed to meet minimal standards for remaining a full member of the political
community. In deeming persons guilty of genocide or crimes against humanity to be less than
full members, the citizenry is defining the identity of their state in a certain way. To be sure,
there is no requirement that a democracy take such a step. The requirement is to punish the guilty
parties by imposing proportional sentences of imprisonment or possibly a death sentence. No
political principle obligates a state to add disenfranchisement on top of such punishment, but
neither does there seem to be any prohibition of principle against doing so.
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Resolved: In a democratic society, felons ought to retain the right to vote.
Informational Quotations
5.3 million American citizens are not allowed to vote because of criminal convictions
Erika Wood and Rachel Bloom, Deputy Director and Right to Vote Advocacy Coordinator
(respectively) both at the Brennan Center for Justice, New York University Law School, De
Facto Disenfranchisement, American Civil Liberties Union (ACLU) and Brennan Center for
Justice at New York University School of Law report, October 1, 2008.
Voting is both a fundamental right and a civic duty. However there remains a significant blanket
barrier to the franchise: 5.3 million American citizens are not allowed to vote because of criminal
convictions. As many as four million of these people live, work, and raise families in our
communities, but because of convictions in their past they are still denied the right to vote.
The “Felon Vote” would help both parties
Figuring Out the “Felon Vote”, Newsweek, June 6, 2006.
One 2000 study in Florida found that former felons, who tend to be disproportionately AfricanAmerican and low-income, would vote Democratic if allowed (Florida law imposes a lifetime
ban). But in Washington, which allows felons to regain voting rights after paying their debt to
society, former convicts tend to be "white, blue collar and male.
Public Attitudes on Felony Disenfranchisement
Dana Hughes, Locking Up The Vote, Ford Foundation Report, Vol. 35 Issue 4, Fall 2004, pp. 4.
URL: http://www.fordfound.org/pdfs/impact/ford_reports_fall_2004.pdf
[Editor’s note: the information in the map has changed as several states have changed their
felony disenfranchisement laws over the past four years]
A July 2002 national telephone survey of 1,000 Americans conducted by Harris International
found:
80% support all ex-felons, people who have served their entire sentence and are now living in
their communities, having the right to vote
66% support allowing violent ex-felons to vote
63% support allowing ex-felons convicted of illegal trading of stocks to vote
52% support allowing ex-felons convicted of sex crimes to vote
64% said those on probation should be allowed to vote
62% said those on parole should be allowed to vote
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November-December 2008 National Forensic League Lincoln-Douglas topic
PlanetDebate.com 60
Resolved: In a democratic society, felons ought to retain the right to vote.
State Felon Disenfranchisement laws vary greatly
Erika Wood and Rachel Bloom, Deputy Director and Right to Vote Advocacy Coordinator
(respectively) both at the Brennan Center for Justice, New York University Law School, De
Facto Disenfranchisement, American Civil Liberties Union (ACLU) and Brennan Center for
Justice at New York University School of Law report, October 1, 2008.
State laws vary widely on when voting rights are restored. Maine and Vermont do not deny the
franchise based on a criminal conviction; even prisoners may vote there. Kentucky and Virginia
are the last two states to continue to permanently disenfranchise all people with felony
convictions unless they receive individual, discretionary clemency from the governor. The
remaining 46 states fall somewhere in between, with the varied state laws forming a patchwork
across the country. Some states restore voting rights upon release from prison, others upon
completion of probation and parole, and others impose waiting periods or other contingencies
and categories before restoring voting rights.
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Resolved: In a democratic society, felons ought to retain the right to vote.
About the author/editor:
Dr. Minh A. Luong is Faculty Fellow in the Yale Graduate School of Management and Assistant Director of International
Security Studies at Yale University. He also serves as Associate Director of the Brady-Johnson Program in Grand Strategy at
Yale. He previously held the Forrest Mars Sr. Visiting Professorship in Ethics, Politics, and Economics (2000-2006) and served a
two-year term as International Affairs Council Fellow at the Yale Center for International and Area Studies. Prof. Luong also
holds academic appointments at Brown University as Adjunct Assistant Professor of Public Policy at the A. Alfred Taubman
Center for Public Policy and American Institutions, Adjunct Lecturer in Political Science, and Visiting Fellow in International
Affairs at the Watson Institute for International Affairs. Professor Luong teaches courses on national and global security, public
policy, espionage and intelligence, privacy and civil liberties, crisis management, ethics and negotiations, Grand Strategy, and
international relations.
Prof. Luong has appeared on major television and radio news networks, has been quoted in newspapers internationally, and
lectures around the world on international security as well as intelligence issues at U.S. Government agencies and in partner
countries at the invitation of the U.S. Government.
The views expressed in this topic briefing and other open-source work are those of the author and do not necessarily reflect the
official policy or position of Yale University, Brown University, the U.S. Department of Defense, U.S. Intelligence Community,
the U.S. Government, governments of U.S. partner nations, or the United Nations or its affiliated organizations.
For nearly a decade, Luong served as a corporate consultant and senior advisor to a number of Fortune 500 companies and
worked on critical projects for industry-leading organizations such as: AT&T, BankOne, Boston Financial, EquiServe, E*Trade,
ExxonMobil, General Motors, MediaOne (later AT&T Broadband, now Comcast), Monitor Group, and New England
Financial/Metropolitan Life.
A former high school and college debate coach, Prof. Luong served as the founding curriculum director at the Lincoln-Douglas
debate institutes at Stanford University, University of California at Berkeley, NFC-Austin, and the National Debate Forum. He
founded and directs the Ivy Scholars Program for High School Student Leaders at Yale University (www.yale.edu/ivyscholars)
and is the volunteer director of the National Debate Education Project, a public service organization that conducts weekend
debate seminars around the country. Minh A. Luong can be reached at <minh.a.luong@yale.edu>.
Rick Brundage, MPA (Brown University) and Steven Liu, (B.A. candidate at the Stern School of Business Administration at New
York University) provided argument and research assistance in preparing the strategy and quotation sections of this topic
briefing. Elizabeth Bennett, M.A. (Tufts University) and doctoral candidate in political science at Brown University provided
research assistance in preparing the resource list.
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