The U.S. Supreme Court has declined to hear two cases concerning whether convicted felons should be denied the right to vote.
Although the Supreme Court has absolute control over what cases it will take and the rationale in these two cases might not have been especially strong, this is an issue that is likely to surface again.
There’s a case in Florida the Supreme Court might just take when the issue is ripe.
Felony disenfranchisement is the practice of barring convicted felons from voting.
Some states impose this penalty for life, while others allow convicted felons to vote once they have served their sentences, including parole, if any. Alabama, Connecticut, Delaware, Maryland and New Mexico have recently changed their laws to eliminate or soften the lifetime ban on voting.
Though it’s not mentioned in the cases returned to lower courts Monday, the fact that some 3.9 million people in the United States are permanently barred from voting — about a third of them black — due to a felony conviction is primarily the result of the aggressive way the war on drugs has been prosecuted over the last two decades.
The two cases the court decided not to hear — one from Washington state, the other from New York — argued that since a disproportionate number of blacks are convicted of felonies and thereby barred from voting, the law has the effect of discriminating against black citizens.
While blacks make up 12.2 percent of the population and use drugs at about the same rate as the rest of the population, they account for 38 percent of those arrested for drug offenses and 59 percent of those convicted.
One can see an argument on either side, but we’re inclined to think a lifetime ban on voting by convicted felons is overkill.
It imposes a punishment that essentially tells people they are forever barred from participating in the normal processes of governance, even if they have served the prescribed sentence and “paid their debt to society,” and even if they have turned their lives around and become decent, law-abiding citizens.
In many instances it is punishment that is unrelated to the original crime.
The question is whether a reform of this practice should be done by applying the Voting Rights Act of 1965 — as amended in 1982 to bar practices that have the effect, even without the intention, of discriminating by race — or through state-by-state legislative lobbying or popular initiatives.
We’re inclined to prefer the political process to judicial fiat.
But the case working its way up from Florida — in which plaintiffs will argue that the original 1868 life-long disenfranchisement law was enacted with the intention of preventing newly enfranchised black people from voting — could make the question moot.