By Mike Dorf
Here's an adage for our times: Any position attributed to a Republican Presidential candidate by supporters of any of his rivals in the hope of making him look insufficiently conservative is likely, upon examination, to prove eminently sensible. The idea du jour is felon voting. A super-PAC supporting (but, if following the law, not formally affiliated or acting in coordination with) Mitt Romney, is running ads in South Carolina denouncing Rick Santorum for having supported voting by felons. Here's the ad, with the bit about felons voting coming at the end:
And here's Santorum and Romney mixing it up during Monday's debate over whether the accusation was fair:
[Embedded video won't run on email, so email subscribers to DOL: Click here and here to view the videos.]
Santorum has two complaints about the ad. First, as he explained during the debate, it's hypocritical of Romney supporters to call Santorum to task for the ad when Romney, as Massachusetts governor, did not try to change the state law that permitted convicted felons on probation or parole to vote, an even more liberal position than the one Santorum took as a senator. Romney says he tried to change the law but the Democratic-controlled Massachusetts legislature wouldn't let him and that he's not responsible for what the super-PAC does. I'll let others referee this aspect of the disagreement.
Second, Santorum says the ad is misleading because, by showing an orange-jumpsuit-clad felon wearing an "I voted" button, it implies that Santorum supported a law that would permit people currently serving in prison to vote, when in fact, Santorum's position was to restore voting rights to ex-felons who had completed their prison terms. I say, hey, at least the headless jumpsuited felon in the ad is clearly a white guy; that's progress from the days of (the pre-repentant) Lee Atwater and Willie Horton. Cf. Simpson, Homer ("I'm not just another loudmouth. I'm a loudmouth who says things you're afraid to say, but not racist things!").
But I digress. My main point is this: Why shouldn't felons be permitted to vote? Let's consider the position Romney (currently) espouses: Once someone has committed a felony, he ought never be permitted to vote. I want to give Romney the benefit of the doubt, so let's assume (consistent with some of his statements on this issue), that he means violent felony, rather than some relatively minor offense that happens to be classified as a felony. Suppose Snake was convicted of burglary, served three years in the state pen, was paroled, and after several more years has now been released from the supervision of the probation dep't. What harm could come from Snake voting?
One might imagine that Snake would vote for the elimination of laws protecting private property or even personal safety but there is no real risk that any politician will support such a view. And if people who want to eliminate the criminal law so that they can commit violent crimes form a near-majority of the population, then civilized society is already a lost cause.
Perhaps the worry is that Snake will support politicians who wish to divert public resources from law enforcement to other priorities (e.g., education, parks, public health), and that support of people such as Snake will be enough, at the margin, to give such policies an unfair advantage. It's legitimate, in this view, for law-abiding citizens to want government to divert some resources from law enforcement to the other needs, but their views shouldn't count extra in virtue of the support from the ex-felons like Snake, who are not really weighing public costs and benefits but are simply voting their illegitimate interests.
This, I think, gets at the real objection: Some notion that ex-felons will simply vote for their anti-social interests rather than voting for the public good, as they conceive it.
But if that's the problem with felons voting, then the whole of American democracy is suspect. We do not generally require that people vote for the public good. Quite the contrary, candidates appeal to the electorate by arguing that they, rather than their opponents, will deliver the goods that individual citizens want for themselves: lower taxes, more services, etc. Slogans like Ronald Reagan's 1980 "are you better off than you were four years ago?" reflect this very conventional wisdom.
Perhaps a confusion with jury duty may explain the antipathy to felons voting because historically, the right to vote tended to go hand in hand with the right to serve on a jury. Because of the requirement of unanimity in criminal cases, a single felon holdout who votes against conviction because he despises the criminal law really could sink the criminal justice system. But the numerical dynamics are so different between voting on a jury and in an election that even if one thinks the case against former felons serving on juries is compelling, it doesn't carry over to voting.
So what, at bottom, grounds the case against felons voting? I believe it's some notion that voting is a "privilege" that felons, through their anti-social conduct, have sacrificed. If so, that would readily explain Santorum's (reasonable) position: A former felon who has served his full sentence has, in the cliche, "paid his debt to society," and thus can be given back the privilege. Romney's position, presumably, is that someone who has once committed a felony is so irredeemably bad that he can never be trusted again. But then, one wants to know, why doesn't Romney want all felons kept in prison for life? After all, the harm that a single felon can do through direct violence is much greater than he can do through voting.
I just said, parenthetically, that Santorum's position--ex-felons should be able to vote after they've served their time but not while in prison or on parole or probation--is reasonable. I believe that a good case could even be made for permitting people currently in prison to vote (so long as their votes would count in the communities from which they were removed, rather than potentially dominating the distant small towns in which prisons are often located). Prisoners have interests and, moreover, much evidence shows that permitting people some voice in their own lives is more likely to bring them to act pro-socially than treating them as monsters will. Plus, eliminating felon disenfranchisement would eliminate the gross racial disparate impact that goes with it.
For now, though, I don't stake anything on the position that current prisoners should be permitted to vote. I note only that the use of Santorum's position against him in the South Carolina campaign is indeed a sign that it was one of the most laudable aspects of Santorum's Senate career.