April 15, 2010

April 15, 2010 | Commentary on Legal Issues, Rule of Law

The Washington Posts Disgrace

In a patronizing and factually erroneous editorial, the Washington Post attacks Virginia governor Robert McDonnell for his proposal to require that nonviolent felons provide a letter about their lives after release from prison as part of a process to expedite the restoration of their right to vote. The Post calls it a “disgrace” that Virginia doesn’t automatically restore felons’ right to vote “once their sentence is fulfilled.”

The real disgrace is the newspaper’s shameful racial demagoguery. The Post unfairly calls McDonnell’s proposal and Virginia’s individualized review of every felon’s application “Jim Crow by another name.” The paper can’t even get the constitutional principles that apply right. The Post also fails to mention that McDonnell would be simply reinstating a requirement that recent experience has shown could speed up the review process.

The paper notes that 48 states and the District of Columbia automatically restore voting rights as soon as a sentence is completed. This is misleading at best. The Post’s view that a felon has paid his debt to society once he completes his sentence is fundamentally wrong. Our society imposes a number of consequences on criminals. In addition to jail time, felons may have fines, court costs, restitution, and possible probation and parole.

In most states, felons also lose for life their Second Amendment right to own a gun (without the possibility of restoration), or to serve on a jury, hold public office, or work in certain professions, such as teaching or policing. In Virginia you lose the right to public employment — working, for example, in a child-welfare agency or a family-day-care home. Prison time has never been the only way a felon pays his debt to society.

Interestingly, however, while the Post talks about “the terrible legacy of people being excluded from the voting booth,” its editorial writers are silent on the “terrible legacy of people being excluded” from owning a gun, serving on a jury, or freely practicing whatever profession they want. Why should anyone automatically and always trust felons to vote but never to own a gun or serve as a teacher in a public school? Perhaps they are just interested in expected liberal votes, not the actual and complete rehabilitation of felons?

These rules are as true for nonviolent felons as for violent ones. No one should have his right to vote restored until all the requirements have been met, particularly paying restitution. There is also nothing wrong with having a waiting period, as Virginia does (three years for non-violent crimes or five years for violent, drug-, or election-related crimes) — after all, a large majority of felons are rearrested and reincarcerated within a short time after they’re released.

The Post mistakenly claims that Virginia is violating the “inalienable right to vote” granted under the Constitution. Yet Section 2 of the Fourteenth Amendment specifically allows states to abridge the right to vote “for participation in rebellion, or other crime.” In short, the very amendment that guarantees equal treatment based on race also makes it very clear that felon disfranchisement is allowed. There is no requirement under any law that states automatically restore the right to vote when a felon steps out of prison; that would be flatly unconstitutional.

And bringing up Jim Crow is really the lowest form of belligerent racial polemics. Felon-voting laws date to ancient times. Most states had such laws in place before the Civil War. Back then, it was only white criminals who lost the right to vote — the vast majority of black Americans, after all, couldn’t vote. The total number of white Americans who are affected because of their conscious and intentional decision to break the law is larger than the total number of black Americans, even if a higher percentage of blacks are affected.

To equate a law that applies to all criminals equally regardless of their race or color with Jim Crow, a horrid system of laws intended to oppress black Americans, is outrageous. The Post shouldn’t fall for this liberal Democratic talking point without at least some basic legal research on what the Fourteenth Amendment provides.

Virginia’s application process is intentionally individualized so that the state, in its review, can ensure that those who have broken the law have not only paid their most basic and immediate debt to society, but have also shown that they deserve restoration to full citizenship. A letter that explains the circumstances of their arrest and conviction, their subsequent education or community service, and why the restoration is justified, will give those applications a human context that may very well help the state in its review. Asking a felon to explain why he thinks he should get his right to vote back is not a literacy test, as the Post maliciously alleges. There is nothing onerous about this.

One Virginia felon who sent such a letter to former Democratic governor Mark Warner (when this requirement was previously in place) told the Richmond Times-Dispatch that it “lets the state know where you are as far as where’s your mind-set.” Despite the fact that Warner eventually suspended the requirement, former governor Tim Kaine said in an interview with a Richmond television station that many “wrote an essay [anyway] because they wrote a letter asking for their rights to be restored, and most often in those letters they’d talk about what they had learned.” According to sources in the Commonwealth Secretary’s Office, Warner suspended the requirement, hoping to speed up the application-review process. It apparently had the opposite effect — it slowed the process down because without these letters, more investigation ended up being needed.

Virginia doesn’t need the “approbation of condescending [editorialists],” to paraphrase the Post, to decide the best process for determining when a convicted felon is ready to participate again in the democracy that he injured through his intentional acts of wrongdoing. Requiring felons to show that they are worthy of being restored to full citizenship “is a matter of equity and democratic fair play” to other voters who haven’t broken the law — and whose votes would otherwise be diluted by those who have shown disrespect for the rule of law that undergirds our civilized society.

 

Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation (www.heritage.org) and a former counsel to the assistant attorney general for civil rights at the Justice Department. 

 

About the Author

Hans A. von Spakovsky Manager, Election Law Reform Initiative and Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

First appeared in National Review Online