Monday, August 02, 2010

SCOTUS, felons and the Voting Rights Act

Texas has one of the more progressive stances among states regarding disenfranchisement of felons at the ballot box: Felons may vote again once their sentence is complete and they're "off paper," including any stint on probation or parole. But the incomparable (and sorely missed as NY Times SCOTUS reporter) Linda Greenhouse has a blog post titled "Voting Behind Bars" that raises the possibility that SCOTUS may soon rule on whether incarcerated felons may vote, and as I look at this particular crop of SCOTUS justices, I scratch my head and wonder if there's a chance they might do so. Greenhouse writes:
It has been nearly three months since the court “invited” — that is to say, ordered — Solicitor General Elena Kagan to “express the views of the United States” on whether laws that take away the right to vote from people in prison or on parole can be challenged under the Voting Rights Act as racially discriminatory.

The order came in a case from Massachusetts, Simmons v. Galvin, an appeal by prison inmates challenging a 10-year-old state constitutional amendment that stripped them of the right to vote while incarcerated. They seek Supreme Court review of a ruling, issued a year ago by the federal appeals court in Boston, that Congress never intended the Voting Rights Act to apply in prison. The federal government was not involved in the case. Now the administration — presumably under the direction of whomever President Obama names to succeed Ms. Kagan as solicitor general — has to come up with a position.
It would throw a major political wild card into the electoral political mix if it turns out disproportionate sentencing by race creates de facto violations of the Voting Rights Act. Citing the Sentencing Project, Greenhouse says felony:
convictions have deprived 20 percent of African-Americans in Virginia of the right to vote, compared with a 6.8 percent disenfranchisement rate for Virginia residents as a whole. In Texas, a similar ratio applies: 9.3 percent for blacks compared with 3.3 percent for Texans as a whole. In New York, 80 percent of those who have lost the right to vote are black or Hispanic. Nationally, an estimated one in seven black men has lost the right to vote.
I'm not a lawyer, but this piques my interest mainly because it piqued the Court's; I don't think they'd ask for arguments unless a chance existed that they'd do something, if only to settle disagreements among the circuits. And if a majority decides mass incarceration is discriminatory, then what? Probably nothing, as milquetoast as the Court has been on related topics in recent decades. But they're all just sitting up there with life tenure, and once they take the case, you never know.

How many extra voters would be added to the rolls in Texas if incarcerated people were allowed to vote? Basically you increase the eligible voting population by 3.3%. At the end of FY 2009 there were 155,076 inmates in Texas prisons, state jails and SAFP facilities, according to the TDCJ annual statistical report (pdf). Another 249,082 were on felony probation, and 105,820 were supervised on parole. On July 1, according to the Commission on Jail Standards, another 71,382 were locked up in Texas counties jails. That brings the total number of potential Texas voters who are incarcerated or "on paper" at any given time to 581,360, mas o menos.

Importantly, though, for the ones in prison or jail, voter turnout could be quite high if it were allowed because the voters are literally a captive audience, easy for campaigns to target, and likely to fill out a ballot if it's given to them. OTOH, I suspect voter turnout might be lower than average among those on probation or parole. You might add 300,00 voters or so overall, skewing Democratic but perhaps less than a lot of folks think - Red Texas sends a lot of its own to prison.

How would such a change impact Texas elections? McCain beat Obama in Texas by 950,695 votes in 2008, according to Wikipedia, with the major candidates getting 4.5 million and 3.5 million votes respectively, so in the biggest statewide races it still wouldn't be a game changer. But there would be big impacts in certain, individual legislative districts - either in rural areas, where prisons are housed, or in inner cities if prison voters were registered in their county of conviction. Presently prisoners are counted in the census in the county in which they're incarcerated for purposes of defining legislative districts, but if they actually got to vote that would mean places like Huntsville and Palestine would all of a sudden be electing prisoner advocates to the state Legislature, and even local city and county campaigns would be obliged to craft and deliver messages to woo eligible prison voters, whereas today they can get away with pitching only tuff on crime messages. That part would definitely change how campaigns are run in those locales. Or, if such a major change occurred, the Lege could change the law to allow prisoners to vote in their home counties. Quien sabe?

Perhaps the idea is fanciful, but it's certainly provocative, and Greenhouse's reportage makes it clear that those who would apply the Voting Rights Act to mass incarceration are engaging in a plain reading of the statute. Meanwhile, declaring it doesn't apply requires judges to take an "activist" stance, claiming it wasn't "Congressional intent" for the statute to apply to prisoners. It's hard to buy that argument, though, since the rise of mass incarceration began after passage of the Voting Rights Act; it wouldn't have been an issue at the time because so few people, relatively speaking, were incarcerated. Today, though, when one in 22 adult Texans are under supervision by the criminal justice system, arguably the discriminatory results do affect many elections at the margins, which is where close races are won or lost.

25 comments:

Anonymous said...

So, are you gonna move to Walker County and run for State Rep, Grits?

Gritsforbreakfast said...

No, but I might be pressing Bill Habern to run, or somebody of his ilk. :)

Anonymous said...

well, I can see your point on changing local tides, which would ultimately change statewide adoption of some legislation. A very interesting question indeed, and I for one believe that it should be allowed. Are they not still citizens?

Anonymous said...

Given Iqbal and McCleskey v. Kemp, it seems doubtful that a claim of racial discrimination would prevail. Then again, changes to SCOTUS's composition might make the difference.

R. Shackleford said...

Bradley would be out on his ass. Splendid.

Gritsforbreakfast said...

1:16, you could also read those tea leaves the other way. One of the reasons I wonder if they might not change course is that those cases' precedents would have been sufficient for them to deny cert if they'd chosen to do so. Instead, they ordered the Administration to defend the policy.

Sotomayor's addition may make a difference - see Greenhouse's article for more on her most recent ruling (a dissent) on these subjects.

Gritsforbreakfast said...

RS: I don't think it would impact Bradley. It'd sure make Steve Ogden's senate district look a lot different, though, not to mention Robert Nichols'.

Anonymous said...

This combined with a massive immigrant amnesty policy should be enough to bring democratic incumbents back into office.

Anonymous said...

This combined with a massive immigrant amnesty policy

You mean like the one Bush and the Republican Congress tried to pass? Or the one Perry favors?

Just wonderin'.

Rage

Anonymous said...

Great! Yet another special interest group to cater to.

celtictexan said...

As usual minority incarceration percentages are posted in a way to as to infer discrimination. Nothing is said as far as actual minority, especially violent, crime rates or. Neither is the race of the victim of these violent crimes mentioned. More lib misleading of the public, in order to progress a socialist agenda.

rodsmith said...

what's always suprised me is this part!

"The order came in a case from Massachusetts, Simmons v. Galvin, an appeal by prison inmates challenging a 10-year-old state constitutional amendment that stripped them of the right to vote while incarcerated."

NO offense but if it's a RIGHT then it's a RIGHT you can't take it or remove it or change it. OTHERWISE it's not a right it's a privelage!

Anonymous said...

"As usual minority incarceration percentages are posted in a way to as to infer discrimination. Nothing is said as far as actual minority, especially violent, crime rates or. Neither is the race of the victim of these violent crimes mentioned. More lib misleading of the public, in order to progress a socialist agenda."

I don't really see the connection here to a "socialist agenda." It would seem to me that people who claim to favor smaller goverment (as I do) and less government intervention in our lives (as I do) would question the need for such a monstrous, all powerful, overly oppressive criminal justice system.

I've been reading an interesting article addressing just the topic of your posts. In the south, after the civil war, a lot of criminal laws were written to target blacks. They were called "Black Codes". They resulted in blacks being sentenced to work for private individuals for very long periods of time in exchange for their court costs and fines being paid for such serious crimes as vagrancy or failure to pay a bogus debt.

The article compares the current drug laws to these laws and I think there is some merit in the argument. There was a recent change to the laws regarding sentences for crack cocaine vs. powder cocaine. Whether the intent was there or not, the effect of the sentencing disparity was directed more at blacks. Crack cocaine is used more often by blacks while powder is used more by whites. I'm not saying there was a racist intent behind the disparities, just that there was a racist effect.

The subject is way to deep to properly address in a short post but its an interesting one. Many of our criminal laws, and the way they are enforced, have a disparate effect, whether there is a racist intent or not,

Gritsforbreakfast said...

@ 6:34, you realize Democrats control both houses of Congress and the Presidency, right?

@ Celtictexan, the argument is more subtle than that. The Voting Rights Act focuses on the "results" of government policies, not their good intentions or the justifications behind them. If disparities in mass incarceration create disparities in voting populations, under the Voting Rights Act (as I'm reading Greenhouse's commentary) it doesn't matter if they stem from intentional or purely organic causes.

Also, I don't see how this relates to "socialism" at all. Are you making an argument related to this post or just treating us to unrelated stream of consciousness commentary?

celtictexan said...

Also, I don't see how this relates to "socialism" at all.

It relates in the same way this admistration refuses to enforce illegals. More votes that obviously will got to the dems. Non of this out of concern for individual voting rights.

Those who murder, rape, rob, molest ect. have no right to decide the future of this nation.

crack cocaine vs. powder cocaine.

Comparing the damage caused to the person using crack, especially the children born to these users, to plain cocaine, is akin to comparing cocaine to apples. Crack is one of the most devastating drugs ever created. The punishment should fit the crime. Not be skewed by politically correct lies.

Gritsforbreakfast said...

Celtic, welcome back; I haven't seen you in a while. But somehow, during your absence, you haven't overcome your habit of viewing the world as though through the wrong end of a telescope.

No offense, but once you've declared ingesting powder cocaine no more harmful than eating fruit, you're pretty much too far off the deep end for me to feel it's constructive to converse further.

I'll leave on a point of agreement: We both think the punishment should fit the crime. I just fail to understand why you believe those engaging in consensual black market sales deserve longer sentences than "Those who murder, rape, rob, molest etc.," which was the net effect of the 100-1 disparity rectified in the bill Obama just signed.

Anonymous said...

Celtic,

You should go rent the movie "Reefer Madness". I bet you believe all the hype used to support the War on Drugs?

celtctexan said...

Celtic, welcome back; I haven't seen you in a while.

Well thank you I hope it wasnt sarcasm. I realize your blog is dedicated more to legal minds and actions, but I still think it one of the best around. Still I was curious to see how the poilicies of our current socialist Potus has steered the conversation here.

No offense, but once you've declared ingesting powder cocaine no more harmful than eating fruit,

I didnt say that you twisted my words. I said comparing crack to cocaine is like comparing cocaine to apples.

You should go rent the movie "Reefer Madness".

I dont recall reefer being part of the conversation. Except for one aspect of its effects I would put it way, way, under alcohol as far as negative to society and the person using it.

Gritsforbreakfast said...

Nope, not sarcasm, Celtic. I often don't agree with you but I welcome opposing perspectives here, particularly when they don't contain personal or ad hominem attacks, which for all our disagreements I never recall being your particular M.O.. And thanks for the kind words about the blog.

But Obama as a "socialist" after the giveaways and bailouts to Wall Street - I just find that hard to swallow. Placed on the spectrum of economic thinkers, he is an extremely moderate Keynesian, who also taps into some of Milton Friedman's monetary policy insights. But compared to a real "socialist," according to any rational, historically grounded definition of the term, IMO he ain't remotely close.

celtictexan said...

But Obama as a "socialist" after the giveaways and bailouts to Wall Street - I just find that hard to swallow.

From Dictionary.com;a theory or system of social organization that advocates the vesting of the ownership and control of the means of production and distribution, of capital, land, etc., in the community as a whole.

I dont support the bailout of these entities either. But I have to point out there was way more to the bailouts than just handing over a bunch of working peoples money. The handouts were tied to government takeover and, in the case of GM and majority ownership.

Placed on the spectrum of economic thinkers, he is an extremely moderate Keynesian,

A 13 trillion dollar deficit.Wow, who would u consider to be extreme?

Anonymous said...

The connection to "reefer" is the way fear was used to hype both. Some of that fear used the subject of race. I seem to recall that one of the ways the dangers of marijuana was hyped was to make people think that black men would use it to get high and rape white women.

The crack baby thing you mentioned also has been overhyped. I'm not saying that there aren't dangers but the danger was greatly exaggerated. I recall in the 90s going to trainings for a job I had at the time. We were told of the coming epidemic of crack babies and how they would suffer long term effects. You may be able to find a few examples, but the predicted epidemic never materialized. In fact, while I haven't looked at any statistics I would bet that Fetal Alcohol syndrome is more prevalent. So, if you have a beer in your refrigerator we need to lock you up for many, many years. Oh, wait, we already tried that.

Anonymous said...

Don't get me wrong. I'm not saying Crack is not bad. It definitely is. I"m just saying that it, like many other things has been overhyped. THere are many theories as to why this is so. They are too involved to discuss here. Part of it is just the medias tendency to overhype everything. But, there is also an undeniable racial component to the war on drugs.

celtictexan said...

The crack baby thing you mentioned also has been overhyped.

The long terms effects may or may not have been over stated to a degree, its hard to be sure when the subject becomes so political. But the videos of new borns undergoing withdrawal, and the expense to the taxpayer of careing for, most often, premature and malnurished babies were not. malnurshied because the mothers were spending everything they had to get more crack.

I will agree with you on fetal alcohol syndrom. But only in the context, that alcohol is legal and obviously used way way more than crack. If crack were legal, and I'm not saying you personally, as I've seen some on this site propose with all drugs, then crack, meth, most anything along that line would surpass, IMO, alcohol as a danger to society.

So, if you have a beer in your refrigerator we need to lock you up for many, many years.

I'm not a pregnant female and lets be serious. A few beers on occation is not likely to cause FAS. I havent looked at it, in a long time but I think its a hard core alcoholic issue.

This is all off topic anyway.

Anonymous said...

"If crack were legal, and I'm not saying you personally, as I've seen some on this site propose with all drugs, then crack, meth, most anything along that line would surpass, IMO, alcohol as a danger to society."

I've heard some good arguments that suggest that may not be the case. I don't like the idea of crack and meth being freely legal. But, as far as the crack baby thing goes it would actually be better if it were decriminalized. Now, women are often afraid to seek prenatl care because the doctor will find out she's using drugs and she may go to jail. If that were not the case, these women would be more likely to seek prenatal care and they could then be referred to drug treatment and some of the issues like prematurity and under development might be addressed.

The criminal justice system just can't solve all of our problems.

celtictexan said...

The criminal justice system just can't solve all of our problems.

Well I can certainly agree with that, as currently administered anyway.