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.