Felonious Bunk

Why ex-cons should be given the vote

Have you ever committed a felony?

If you've ever written a lewd comment on a postcard, you have committed a felony (which is generally defined as a crime punishable by more than 365 days in prison). Or if you refused to register for the draft after turning 18, or said " fuck " on the radio, or knowingly mis-valued the items in your suitcase, or smuggled an abortion pill from France, or taken a baseball bat to a mailbox .

Then there's the drugs. Use a crack pipe , commit a felony. Snort a line of coke? Felony in 37 states, according to this nifty Robert Wood Johnson Foundation chart . Possession of meth is felonious in 36 states; a single hit of ecstasy in 26.

Guilty yet? If somehow not, then look up your state criminal code and check twice. For what I'm guessing is the vast majority of us who have committed a felony at least once, here's a question: Should we be banned from voting in elections, forever?

The criminal codes of Alabama, Florida, Kentucky, Iowa, Mississippi and Virginia say "yes," unless the governor grants you a pardon. So, someone like Trey Gregory —a Virginia man who was convicted of Consensual Sodomy in 1997 after admitting he'd had oral sex with his ex-girlfriend—is banned from the ballot box for life, in addition to being blocked from buying a gun.

The same post-prison fate awaits violent offenders in Arizona, Nevada, and Wyoming; plus parolees in 32 states (not to mention sitting prisoners in 48). The combined laws have created the democratic world's largest pool of adult citizens living under a system of taxation without representation. "In the 2000 presidential election, more than 4.6 million Americans were barred from voting because of felon disenfranchisement laws across the country," professor/advocates Christopher Uggen and Jeff Manza, authors of several studies and articles on the issue, wrote in the Los Angeles Times last week. "Of those, 35% had already served their time."

Ex-con suffrage has bubbled back in the news lately, ever since Alabama Governor Bob Riley vetoed a felon-voter bill a month ago, touching off protests and Jesse Jackson appearances . On July 14, all six Democratic presidential candidates who showed up at an NAACP convention backed felon re-enfranchisement.

Democrats have a terrific incentive to make this a campaign issue: If ex-felons could vote, Democrats would win more elections. Research conducted by Uggen and Manza suggests that enfranchised felons would have tipped the scales to Al Gore, and to several Democratic senators in the 1980s and '90s. Famously, more than 600,000 ex-cons couldn't vote in Florida (though a small number managed to find a way ), which means that the Felon Factor positively dwarfed Ralph Nader, hanging chads and butterfly ballots in terms of impact on that nightmarish statistical dead heat.

Because felons skew black (an estimated 13 percent of the black population nationwide, and an incredible 30-plus percent in Florida, can't vote), and because blacks lean 90 percent Democratic, we can assume that most new voters wouldn't celebrate their re-enfranchisement by plumping for George Bush.

Conservatives, unsurprisingly, smell a rat.

"Had Al Gore won the 2000 election, there most likely would have been considerably less outrage in the Civil Rights movement concerning 'disenfranchisement,'" Ryan O'Donnell wrote in FrontPage Magazine last month. His colleague Lowell Ponte, in an informative column last week, scoffed: "Is the NAACP changing its name to the National Association for the Advancement of Criminals and Parolees?"

David Lampo, writing in The National Review last year, tore civil rights leaders a new one. "Instead of confronting the fact that a grossly disproportionate amount of crime is committed by black men, however, certain black leaders have turned it around and used it as yet another example of supposed institutionalized white racism, with some actually comparing the loss of voting rights for felons to poll taxes and Jim Crow voting restrictions in the old South," Lampo wrote. The comparison, he said, was nothing less than "a moral obscenity."

But to deny a racial component in felon voting restrictions is to deny history. As this Uggen/Manza chart shows, blanket felon disenfranchisement was basically invented in the first five years after the Civil War, in the South. Joseph "Jazz" Hayden, who is suing the state of New York over its voter laws, claimed in a San Francisco Chronicle column last month that in 1896:

"Mississippi lawmakers ruled that only a narrow range of offenses—bribery, burglary, theft, arson, perjury, forgery, embezzlement, bigamy and 'obtaining money or goods under false pretenses'—made you lose the vote. Why not murder or rape? Because ex-slaves were far more likely to commit petty property crimes than serious offenses. [...] One delegate to the Virginia convention of 1906, which established rules similar to Mississippi's, went on record at the time as saying: 'This plan will eliminate the darkey as a political factor in this state in less than five years.'"

You will be forgiven if a Moebius strip of racial accusations (not to mention the phrases "Jesse Jackson," "Florida," and "2000 election") sends you screaming toward the exits. The real issue here is important, and boils down to two points: When, if ever, should the state be able to take away your right to vote, and what remedy is appropriate if you don't believe 4 million Americans should be barred from that most fundamental tool of public participation?

For me, the former question, at least, is clear. As long as there are stupid laws, disproportionate sentences, corrupt law enforcement officials, and politicians who will sacrifice rights on the altar of being tough on crime, I do not want any government preventing free citizens from voting—regardless of which distasteful political party might benefit. Lenny Bruce was a felon . "Ganja Guru" Ed Rosenthal , who grew pot for cancer patients, is a felon on probation. I'm an unconvicted felon (and a good, law-abiding citizen); I'm guessing you are, too.

As Glenn Reynolds put it succinctly last week: "Don't have so many felonies." While waiting for that longshot to come in, it will be worth tracking hopeful new developments at the statehouse level. And staying out of trouble.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

American Civil Liberties Union of Virginia, News Release
October 1, 2007

Citing History of Discrimination, ACLU Asks Richmond City Council to Reject Change from Elected to Appointed School Board
Civil liberties organization says move would trigger Justice Department review.

Richmond, VA—The ACLU of Virginia today is asking Richmond City Council to reject attempts by a group of local civic and business leaders to eliminate the city’s elected school board in favor of an appointed one.

In a letter being sent today to council members, ACLU of Virginia Executive Director Kent Willis notes that elected school boards are not only a more fundamentally democratic way of choosing school boards, but that they are also symbolic of a hard fought 100-year battle to establish racial equality in Virginia politics.

“This is one of those times when it is important to look at history before making any decisions,” said ACLU of Virginia Executive Director Kent Willis. “Appointed school boards, along with poll taxes, literacy tests, and felon disenfranchisement, were all Jim Crow-era laws adopted solely for the purpose of keeping African-Americans from gaining political power in Virginia. The City of Richmond should not be headed back in that direction.”

In its letter, the ACLU shows that the delegates to Virginia’s 1901 Constitutional Convention opposed elected school board expressly to prevent African-Americans from being elected to public office. The ACLU also points out that state legislators perpetuated the ban on elected school through most of the 20 th century, even when numerous state-commissioned reports strongly recommended the elimination of appointed boards.

The letter also reminds City Council members that any proposed change in the school board election plan in Richmond will come under the scrutiny of the Voting Rights Division of the Department of Justice, which will allow the change only if does not negatively affect minority voting strength. Virginia, like other southern states, comes under Section 5 of the Voting Rights Act, which subjects all changes in voting practices to Justice Department review.

The ACLU filed a lawsuit in 1987 seeking to demonstrate that the state’s ban on elected school boards violated the Voting Rights Act of 1965. The case was unsuccessful, but it exposed the racially discriminatory motives behind appointed schools boards, and ultimately led to state legislation allowing localities to democratically select school board members.

In 1992, Virginia became the last state in the nation to allow elected school boards.

A copy of the letter to Richmond City Council can be found below.

Contact: Kent Willis, Executive Director, (office) 804/644-8022

 

[ACLU of Virginia]

 October 1, 2007

President William J. Pantele
Richmond City Council
Richmond City Hall
900 East Broad Street
Richmond , Virginia 23219

RE: Why Richmond Should Continue to Elect School Board Members

Dear Members of City Council:

I write to ask you not to change the process for selecting school board members in the City of Richmond from elected to appointed. The ACLU respects your right to enter into a broad public debate on this subject, as you apparently intend to do, but asks that you do so with a full commitment to the democratic process and a strong sense of the racial history of appointed school boards in Virginia.

Whatever the public’s perception is of the Richmond School Board’s membership, such perceptions should not be permitted to cast a cloud over the democratic process. Please keep in mind that a change from an elected to appointed school board, regardless of who serves on the board, will be a change from more democratic to less democratic governance in the City of Richmond.

Please keep in mind, as well, that appointed school boards are part of the legacy of Virginia’s post-Reconstruction period during which the state’s white leaders sought systematically to limit the political influence of African-Americans. It culminated in the infamous Constitutional Convention of 1901, much of which was devoted to codifying the doctrine of Jim Crow. At that well-documented gathering, Virginia’s leading statesmen amended the Constitution to require literacy tests and poll taxes, and to permanently bar felons from voting. They also rejected attempts to mandate elected school boards.

Quotes from the Convention concerning the disenfranchisement of African-Americans are as shocking to 21 st century sensibilities as they are abundant. One, from Carter Glass, the Convention’s de facto leader, sums up the general purpose of the Convention. Reacting to concerns that some of the proposed provisions might be struck down by federal courts as racially discriminatory, Glass said:

Discrimination! Why that is exactly what we propose; that exactly, is why this Convention was elected -- to discriminate to the very extremity of permissible action under the limitations of the Federal Constitution with the view to the elimination of every [N]egro who can be gotten rid of, legally, without materially impairing the strength of the white electorate.(1)

Another convention delegate, J.B.T. Thornton of Prince William County, represented the consensus view on elected school boards. In rejecting a proposal to mandate elected school trustees, the equivalent of today’s school boards, Thornton said, “… if this report is adopted, as presented here, there are a number of counties in the State in which we will have [N]egro trustees. That is a condition of affairs that is abhorrent…”(2)

In the years following the Constitutional Convention, it became obvious that the appointed school board scheme was not working. Between 1918 and 1927, four separate official state studies concluded that appointed school boards should be abandoned in favor of elected school boards. But the General Assembly refused to follow the recommendations of it own studies and continued to ban school board elections.(3)

In 1947 state lawmakers finally capitulated to the wishes of Arlington County by passing a law permitting that one jurisdiction to elect its school board members. But even this refreshing turnabout had a distressing, racially-tinged ending. In 1956, after the Supreme Court’s ruling in Brown v. Board of Education, Arlington’s elected school board voted to integrate the school system. The General Assembly -- which responded to Brown by nearly passing a law to withhold funds from local school systems that attempted to integrate -- reacted immediately by repealing the law allowing elected school boards in Arlington.

In 1987, the ACLU of Virginia filed a lawsuit, Irby v. Fitz-Hugh, challenging Virginia’s ban on elected school boards as a violation of the Voting Rights Act and the Fourteenth Amendment of the U.S. Constitution. The ACLU demonstrated that, for the most part, African-Americans were significantly underrepresented on school boards in the jurisdictions with the largest proportion of African-American students. We also showed through historical records that the refusal of Virginia to allow elected school boards was racially motivated.

We lost our case, but in the process exposed the shamefully racist philosophy that spawned appointed school boards in Virginia and then nurtured them for nearly a century.

Several years after Irby, in 1992, the General Assembly finally voted to allow elected school boards, making Virginia the last state in the nation to cast aside this vestige of Jim Crow. Governor Douglas L. Wilder signed the bill into law, and within a few years the vast majority of school jurisdictions opted for elected boards. Today, 108 out of Virginia’s 134 school boards are elected.

Not only will an appointed school board in Richmond be a less democratic way of governing public schools, but it will also signal a return to a system inextricably linked to Jim Crow and Massive Resistance. I ask you to keep these thoughts in mind as you face criticism of Richmond’s elected school board system.

If you are interested in reading more about the history of the school board selection process in Virginia, I would be pleased to send you a copy of the declaration of Dr. Peyton McCrary, a specialist in the history of the South, that was submitted to the court in Virginia when the ACLU filed suit in 1987.

I would like to remind you, as well, that any change in the school board selection process in Richmond will require pre-clearance under Section 5 of the Voting Rights Act. The Department of Justice will reject an appointed school board scheme if it is likely to dilute the power of minority voters. Frankly, it is hard to imagine how changing from elections to appointments in a city in which a majority of voters are African-American can be interpreted as anything but dilutive.

If you would like additional information or to discuss any of the subjects addressed in this letter, I can be reached at 804/644-8080 or kwillis@acluva.org.

I thank you for your attention.

Sincerely,

Kent Willis
Executive Director

cc: Delores L. McQuinn 
Bruce W. Tyler 
Chris A. Hilbert 
Kathy C. Graziano 
E. Martin Jewell
Ellen F. Robertson 
Reva M. Trammell 
Douglass G. Conner, Jr. 

(1) Report of the Proceedings and Debates of the Constitutional Convention, State of Virginia (2 vols., Richmond, The Hermitage Press, 1906), II, 3076.

(2) Id. , II, 1828-29.

(3) These are: The Virginia Education Commission, appointed in 1918, reporting in 1920; The Commission on Simplification and Economy of State and Local Government, 1924; a citizen’s committee appointed by Governor Harry Byrd shortly after taking office; and a commission created by the General Assembly in 1927. Source: “Declaration of Dr. Peyton McCrary,” Irby v. Fitz-Hugh, 1988. pp 15-18