Felon and Immigrant Voting Rights

Patrick Draper pdrap@pdrap.org

August 23rd, 2004

Republication allowed with permission.

Phyllis Schlafly wrote her August 16th column on the subjects of felon and noncitizen voting. For over a century convicted felons have been denied the right to vote in many states, mostly in the South, even after their sentences have been served in full. There are now about 5 million Americans who cannot vote because of a past felony conviction. Thirteen percent of the African American population is permanently barred from voting. With respect to immigrants, there are now 30 million people living in the United States who are foreign-born, and of that number 12 million are legal permanent residents who are not citizens. The number of immigrants living in the United States has tripled since 1965, forming an extremely large group that has no voting rights at all.

Enfranchisement has followed a generally progressive trajectory for the entire history of the country. The vote was given to the landless. Blacks and women received the right to vote later. Poll taxes and literacy tests were eliminated. The most recent extension of enfranchisement came with the passage of the 26th Amendment to the Constitution giving 18-year olds the right to vote. The only backward steps were the disenfranchisement of felons in the late 19th century, and immigrants in the 1920's.

The sole argument Schlafly gives for restricting the rights of felons to vote is to cite the 14th Amendment of the U.S. Constitution, which delegates restrictions of felons' voting rights to the individual states. In simpler terms, she argues that states should not let felons vote because that is allowed by the Constitution. As arguments go, it's unpersuasive. Most states in the Union choose not to disenfranchise felons who have completed their sentences. The idea that a person who has served their sentence should be given back all the rights they lost is a popular one. In coming years, it is likely that many states will follow Alabama's lead in automatically restoring voter rights to former felons.

Schlafly writes about current support for noncitizen voter writes in Washington D.C., remarking that the "city council isn't the first to think up this thoroughly bad idea." She's absolutely right, but in directing attention to San Francisco's current debate about immigrant voting in school board elections, she misses her mark by over 200 years. Immigrants were allowed to vote, even in Federal elections, from the inception of the nation until the 1920's. For noncitizens, the act of voting in a federal election only became a crime in 1996 with the passage of the Illegal Immgration Reform and Immigrant Responsibility Act.

It's tempting to believe that felony voting and noncitizen voting are two separate issues. These are two different populations of disenfranchised people, but there is a common theme. In both cases, the original reason for disenfranchisement was based in racism. Felons are disproportionately nonwhite, and most of the states which initially adopted these laws are in the South. When immigrants were restricted from voting in the 1920's, they were primarily arriving from Southern or Eastern Europe, rather than from England or Germany as they had in earlier decades. They were prime targets for discrimination in the workplace, and they were victimized by racist groups such as the Klan because of their darker skins and Catholic religion.

The United States' laws apply to all residents equally, according to the equal protection clause of the 14th Amendment. It's important to note that the phrase used in the Amendment is not "citizen," but "person within its jurisdiction." In the American ideal of a community, it is unacceptable for one group of people to live under the control of another group. This reasoning has been used to justify expansion of enfranchisement before. When the voting age was lowered to the age of 18, it was considered unfair for young people to be sent to fight and die in wars without a voice in the democracy that sends them. Undoubtedly, resident noncitizens are members of our community. They are protected by and subject to our laws; they can be drafted and sent to war; they pay taxes. As Thomas Payne said, "No taxation without representation!"

Schlafly throws out a slippery-slope argument against immigrant voting, asking "once they are on the precinct registration rolls, who is going to stop them?" Later, she says immigrant voting "cheapens citizenship and could give legal cover to would-be terrorists who come to this country with hate in their hearts." These types of arguments are nothing more than an appeal to fear. Our historical experience with immigrant voting in federal elections shows that it is nothing to fear. There are a couple dozen countries in the world where immigrants are allowed to vote, without anything remotely evil occurring. Her argument that it cheapens citizenship falls apart under consideration. People don't become citizens in order to vote. In most parts of the world, people can participate in elections; they could have stayed in their own country to vote. Immigrants choose to become naturalized because of the freedoms and opportunities that our country offers. These freedoms and opportunities are certainly not unique, since quite a lot of other countries can boast economies and rights protections comparable to ours. The difference is that we're practically giving them away. Currently, immigration is at a level higher than the historical average, and shows no signs of slowing down. All of these people enjoy freedom of speech, freedom of religion, and all of the opportunities that a natural-born or naturalized citizen enjoys. Are we to then conclude that all these foreigners speaking freely, worshipping freely, and building wealth in our country cheapens citizenship? Schlafly's last fear-based argument that immigrant voting would provide legal cover to terrorists is puzzling. She doesn't give any reason why voting would provide legal cover to terrorists, or any reason why voting would help a terrorist in their activities. The case of terrorists who can vote, of which there area many, is also conspicuously not addressed.

Schlafly wraps up her article by introducing an entirely different voting procedures problem. There have been some well-publicized problems with the motor voter law, whereby those who get a driver's license are automatically registered to vote. There were also allegations that military absentee ballots didn't get counted in the last Presidential election. Attempting to link these unrelated problems to felon and immigrant voter enfranchisement is a classic example of conflation, which is another way to say "changing the subject." Solutions such as requiring proof-of-citizenship and counting all votes cast are simple to do, and can be done no matter what happens with felon or immigrant voting.