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The felon vote: is Eric Holder making a good case?

Ruminations February 23, 2014

The felon vote: is Eric Holder making a good case?
Two weeks ago, we noted that Democrats seemed fixated on allowing those who had not yet achieved adulthood vote in national elections. At about the same time, Attorney General Eric Holder began making the case for allowing felons to vote. This is getting curiouser and curiouser: Are Democrats out to disenfranchise adult American voters by overwhelming them with unqualified voters?

History. Now, there is a rational argument that can be made to restore the voting rights of convicted felons. Holder ill-serves that argument by his errors in analysis. First he states that disallowing felons the right to vote is “a vestige of the racist policies of the South after the Civil War.” If it were so, it would be a reasonable argument (though it would fail to address (1) the disenfranchisement of felons in the North and (2) that disenfranchisement of felons is a heritage from ancient the Greeks and Romans which later carried over into Europe (admittedly, it was far from universal suffrage at the time).

Recidivism. Holder then goes on to cite a Florida parole commission study that found recidivism rates dropped among those who were permitted to vote again. Ergo, Holder reasons that allowing people to vote again makes them better citizens. His reasoning is an example of a post hoc logic fallacy. Writing in the Wall Street Journal 10 days ago, former Attorney General Michael Mukasey took Holder to task for this very fallacy: Those who seek to have their voting rights restored must go through a five-year process. “Obviously,” says Mukasey, “those who are motivated to navigate such a process self-select as a group less likely to repeat their crimes. Suggesting that the automatic restoration of voting rights to all felons would lower recidivism is rather like suggesting that we can raise the incomes of all college students if we automatically grant them a college degree—because statistics show that people with college degrees have higher incomes than those without them.”

Motivation. And then there is motivation: What motivated Holder to promote enfranchisement of felons? One motivation may be attributed to Occum’s Razor (the most obvious reason is the correct one); he believes the disenfranchisement of felons is bad. But being a politician who has been subject to political attacks – fairly or unfairly – Holder should realize that he will be accused of playing politics (see Cui bono, below). A more effective campaign would come from enlisting a Republican (such as Senator Rand Paul [R, KY] who agrees with Holder on this issue). But, in a highly politicized environment, some may attribute Holder’s stance to being politically motivated.

Cui bono? A common legal argument is cui bono or who benefits. It’s a fair question. Who would benefit from the enfranchisement of felons? The Democrats. In Florida in the 2000 presidential election, some 5,000 convicts voted illegally and of that 5,000, 80 percent were registered Democrats. The Seattle Times surveyed two counties in the 2004 gubernatorial campaign and discovered 129 convicts voting and the Democrat, Christine Gregoire, won by 129 votes. Hmm.

An academic study by Jeff Manza and Marcus Britton of Northwestern University and Christopher Uggen of the University of Minnesota estimated that Bill Clinton won 86 percent of the felon vote in 1992 and 93 percent in 1996.

Cui bono?

Supreme Court. Since black Americans are disproportionately represented in the prison population, Holder makes the case that enfranchisement denial is, in effect, racist. But the Supreme Court has addressed that issue and differs from Holder.

In Richardson v. Ramirez, the California Supreme Court ruled that the California Constitution was unconstitutional in that it violated the 14th Amendment to the U.S. Constitution by denying the rights of felons (the majority of whom are minorities) who had served their prison terms the right to vote. In 1974, the U.S. Supreme Court overruled that decision (6 to 3) stating that the 14th Amendment justified disenfranchising felons. So Holder, although correct in stating that the disenfranchisement of felons disproportionately affected black voters, is wrong in stating that the laws are racist in character.

Rational or sententious argument. “These restrictions are not only unnecessary and unjust,” said Holder, “they are also counterproductive. These laws deserve to be not only reconsidered but repealed.” Holder may be right, but he hasn’t yet made the rational argument.

Can a rational argument be made for allowing felons to vote? Perhaps, but Holder has made it more difficult in that he has confused the voting issue with race and political gain.

Quote without comment
Former Representative John Bingham (R, OH), one of the principal architects of the Fourteenth Amendment, speaking in Congress, 1866: “The second section of the [14th] amendment simply provides for the equalization of representation among all the States of the Union, North, South, East, and West. It makes no discrimination. New York has a colored population of fifty thousand. By this section, if that great State discriminates against her colored population as to the elective franchise, (except in cases of crime,) she loses to that extent her representative power in Congress. So also will it be with every other State."

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