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naraburns  nihil supernum  1yr ago (text post)   Edited 1yr ago   34390 thread views

Culture War Roundup for the week of November 14, 2022

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I write in favor of letting criminals vote. The main argument is that gatekeeping the franchise is not easy and requires a lot of state capacity to securely enforce it. Most of the world lets current and former criminals vote, and I generally don't find arguments to restrict it to be very convincing:

It's not that crazy, because the norm across the world is letting people vote from prison. Literally ballot boxes installed in prisons. To the extent there are any limitations imposed, they're doled out selectively, with apparently fewer than a handful of countries even considering restricting the vote of criminals post-release. In contrast, the United States is rather unique in its disenfranchisement zeal. Only Vermont, Maine, and DC allow voting from prison, but otherwise, the norm in most other states is automatic voting restoration upon release. In total, about 4.6 million Americans can't vote today because of a felony conviction, which is about triple the percentage it was in 1976, but down from a peak in 2016.

Despite all the words here, I'm actually not someone who particularly cares about democracy. While I can acknowledge the strong correlation between democratic governments and overall quality of life, I'm in the consequentialist camp on this issue. Give me Hong Kong under British colonial rule over democratic India any day of the week. Beyond that, voting is a waste of time on an individual level and not something I ever engage in (to answer the tiresome what if everyone thought that? retort: "Then I would vote"), and my anarchist foibles generally leave me politically stranded.

But my egalitarian foibles are why felony disenfranchisement bothers me. A steelman could be either consequential or an appeal to fairness. If you take a "wisdom of crowds" defense of democracy --- that it is a mechanism to arrive at better policies --- then perhaps giving former criminals a say would lead the ship astray. But most of the world seems to function OK despite letting criminals vote, and neither Vermont or Maine seem notably dysfunctional in any way (maybe DC does, but not sure how much you can pin that on the voting prison population). But even if consequences be damned, perhaps violating the social contract is cause enough to muzzle you. I concede it's a slightly stronger argument, but I'm not convinced the justification isn't used as a pretextual excuse to tip the scales in some political party's favor. This wouldn't be a novel effort, as Mississippi implemented literacy tests and poll taxes in 1890 with the express purpose of indirectly suppressing the black vote without explicitly violating the 15th Amendment. The state's governor, James Vardaman, said outright in 1903 the restrictions were imposed "for no other purpose than to eliminate the nigger from politics". Nowadays, nefarious motivations require a little more finesse. Good data on felon voting trends is hard to come by, but the obvious demographic skew (blacks are significantly more likely both to vote for Democrats and to have a felony record), combined with the energy in sustaining felony disenfranchisement coming almost exclusively from Republicans, is enough to sustain my suspicions that this is a pretextual exercise.

Beyond whether or not disenfranchisement is the right thing to do, there's also the question of implementation:

The next step further up --- restoration upon completion of supervision --- is where the difficulty really starts to ramp up. Unlike inmate rosters updated on the daily, when exactly someone's supervision ends is information that will be buried within reams of figurative dossiers in filing cabinets scattered across the state. There's nominally a system in place, such as the National Voting Rights Act, which allows different parts of the country to keep everyone up to date about voting registration. But I've written about how judicial record systems have to straddle an unenviable position: simultaneously maintaining an iron grip on legacy compatibility (imagine the nightmare of a computer upgrade wiping out entire convictions) while cracking the door just widely enough to allow cross-pollination with other systems.

Consider the situation in detail. Let's say that I, your favorite public defender, am able to track down a judgment & sentence order from the 1990s and find that my client was sentenced to X months in prison and Y months of supervision after release. I can't just plug that into a date calculator. First, I would need to know if this was the only charge they served time under, including, potentially, an extradition hold for a warrant from another jurisdiction. Then I'd need to track down whether any early release for good behavior applied to their charge, including noting any legislative changes that may have occurred and been retroactively applied. Even if I have a definitive release date, the length of supervised release is far less static. Maybe there was a court order that ended it early, or maybe there was a change in the law for that specific offense, or maybe their supervision time was tolled or extended for whatever reason by the probation authority. And so on. Despite what I do for a living, I have absolutely no confidence that I am able to accurately calculate the precise end of someone's supervision, and this is why I always leave that task to the math wizards at the Department of Corrections. I hope and pray to Allah they get it right, because there's no fucking way I'll know otherwise.

And beyond implementation by the state, there's also the question of how normal people are expected to navigate the cobwebs:

Pamela Moses' case in Tennessee illustrates how much of a bog this is even for experienced legal professionals. Moses was previously convicted of an evidence tampering felony, and in 2019, she tried to run for mayor. Election officials told her she was not eligible because she had not yet finished her probation. A court echoed what those officials said, but her probation officer later signed off on a certificate of restoration that Moses submitted when she registered. Moses was convicted of voter fraud and sentenced to six years in prison before her conviction was overturned on appeal. The probation officer was wrong about her probation term being over, but that wouldn't have mattered anyway because her predicate conviction --- evidence tampering --- was one of the few Tennessee offenses that led to permanent disenfranchisement. This was a fact that neither the probation officer, his supervisor, nor the trial judge knew about, as seen from page 24 of the trial transcript (cleaned up):

PROSECUTOR: The tampering with evidence we're addressing today, which is permanent. I don't remember all the ones. I know murder, probably rape ---

THE COURT: That's something I didn't know. Are you telling me if you get convicted of tampering with evidence, you can never vote? Where is that in the law?

DEFENSE: It's titled-- I think it's 39-15 or 39-17 where it talks about the interference with government operations. Those are ---

PROSECUTOR: It's 40-29-204.

THE COURT: "Those convicted after July 1, 1996, but before July 1, 2006 --- those convicted after July 1, 2006, any of the offenses set forth in one and two above, voter fraud, treason, murder in the first degree, aggravated rape." And then it goes on to say, "Any other violation of title 39 chapter 16 part one, four, and five, designated as a felony" --- so are you telling me I've got to go back and look at 39-16?

PROSECUTOR: Yes. Now you have to, and that's where the tampering with evidence, along with --- it falls under, like, bribery, contraband, false pretense, the ones that are felonies.

Apparently, it's impossible to wade through the cobwebs of cross-referencing statutory codes without tripping up somehow, even if wading boots are part of your job uniform. And absent malicious intent, these examples illustrate how easy it is for mistakes to happen. What purpose does punishing these types of mistakes accomplish? Focusing one's ire toward the people ensnared by the cobwebs doesn't do anything to get rid of the cobwebs. Getting rid of the cobwebs gets rid of the cobwebs.

And finally:

I’ve already made my position on felony disenfranchisement clear: I don’t think there should be any. If you believe otherwise, that’s fine, but the argument in favor needs to take into account the additional resources such a regime necessarily eats up. You need higher state capacity to check people’s convictions, calculate the terms of their sentence, and tabulate their LFOs, and an entire additional apparatus to investigate and prosecute scofflaws. Any argument in favor of disenfranchising felons has to explain why these additional costs are worthwhile.

Most of the world lets current and former criminals vote,

But most of the world seems to function OK despite letting criminals vote,

Among comparable countries, voter ID and mandatory registration are common, but considered by many to be immoral in the US.

I concede it's a slightly stronger argument, but I'm not convinced the justification isn't used as a pretextual excuse to tip the scales in some political party's favour. The state's governor, James Vardaman, said outright in 1903 the restrictions were imposed "for no other purpose than to eliminate the nigger from politics".

Reading the minds of today's political enemies by assigning them dimmest motives using more than a hundred year old example would disprove a lot more than merely felon disenfranchisement. It also an example of a genetic fallacy.

As for the bureaucracy point, any further restrictions (such as age or citizenship) than allowing any person that comes to the polls to vote, but purple-thumbing them, requires some sort of updatable database necessitating a state with a higher capacity than a mere bulk-purchaser of paper, and two kinds of ink.

Reading the minds of today's political enemies by assigning them dimmest motives using more than a hundred year old example

Well it keeps happening:

Before enacting that law, the legislature requested data on the use, by race, of a number of voting practices. Upon receipt of the race data, the General Assembly enacted legislation that restricted voting and registration in five different ways, all of which disproportionately affected African Americans. In response to claims that intentional racial discrimination animated its action, the State offered only meager justifications. Although the new provisions target African Americans with almost surgical precision, they constitute inapt remedies for the problems assertedly justifying them and, in fact, impose cures for problems that did not exist. Thus the asserted justifications cannot and do not conceal the State’s true motivation.

Well what keeps happening? Passing laws which disproportionately affect African Americans? There is long list of laws which disproportionately affect African Americans from laws against theft to laws against murder.

So are we to impute those laws were enacted for racist reasons? Or only if there is an anecdote from centuries ago of a person claiming the reason for enacting something similar is for racist reasons?

Well what keeps happening?

People keep trying to disenfranchise African Americans.

So are we to impute those laws were enacted for racist reasons?

There's no imputation required in this case - the disparate impact was very much by design.

How can you tell it was racist?

Because there is a disparate impact.

Why does disparate impact prove racism?

Because it was by design.

How can you tell it was racist?

Because disparate impact.

Did you pay any attention to the details of the case? Because this response makes me think you didn't and are just resorting to pattern matching against a strawman. The NC state government did not pass some facially neutral policy which had disparate impact:

the legislature requested data on the use, by race, of a number of voting practices. Upon receipt of the race data, the General Assembly enacted legislation that restricted voting and registration in five different ways, all of which disproportionately affected African Americans.

All this right after having a consent decree originally imposed for racist electoral policy lifted. The "golly gee, how did that happen" doesn't fly. If you ask for racial data and then immediately use it to enact policies which are de facto racially discriminatory, the most likely explanation is that it was deliberately discriminatory.

these aren't "details of the case," they're an argument

the NC state government explicitly passed a facially neutral policy which mentioned nothing about racial discrimination whatsoever

that's what "facially neutral" means

the response under VRA 1965 jurisprudence is that even though it's facially neutral, it's racially discriminatory because it was passed with racist intent because of the disparate impact of facially neutral laws

why? well a few judges in the 4th Cir declared the NC legislature is racist because they enacted outrageous voter laws like not allowing same day registration, requiring voter ID, and others which are already used around the USA (and still are to this day), because a member of the legislature requested data and the legislature passed the law after data was produced showing some of the restrictions would impact the way blacks vote more than nonblacks

Did you read this case or an article about it? If the later, why not link the article that you read instead of the case you didn't?

"The legislature" doesn't request data. Someone in the legislature did, according to some procedure, which is not set forth in the quoted section. Later in the opinion (pgs. 13-15) the language is changed to "legislators requested," which could mean that individual lawmakers asked for the data, but isn't dispositive. I do not know, but suspect, that the data would have been added to the record by progressives explicitly for the purpose of teeing up this challenge - it's not exactly a new position that the left regards Voter ID and anything but the most cursory controls on absentee- and early balloting as racist, nor is it a new charge that the GOP rejects this characterization and claims to support these policies on their own merits and for race-neutral reasons. This, obviously, would throw some water on the "those racists investigated just how they could screw over the blacks and then went and did it" narrative.

Moreover, the discontinuance of methods one group disproportionately uses is not evidence of discriminatory intent so long as adequate and facially race-neutral mechanisms of voting exist which are open to all. There is no general right to a long pre-election early-balloting window, whatever the color of one's skin, nor is there a requirement that outside organizations be allowed to do the thing that (likely) killed Edgar Allen Poe and conduct prospective voter cattle-drives. Nor is there a racial component to Voter ID requirements (provided that the Government also has race-neutral methods of distributing government-issued ID) - as has been stated many times, both here and many other places, just about every developed (and most developing) nations have some sort of Voter ID requirement, and do not regard the matter as particularly controversial.

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