The Slow Pace of Reform

The numbers of individuals disenfranchised through felony exclusion laws have risen dramatically over the past half century from about 1.8 million in 1960 to close to 5.4 million people in 2005.Footnote ⁵ Because the numbers of people disenfranchised have naturally tracked the exceptional expansion of the US prison system, this growth has occurred even in the face of significant legal reforms that have restored the vote to an estimated 760,000 people excluded by earlier legislation or policy.Footnote ⁶ Of the over five million disenfranchised, most are not incarcerated and one million are no longer under any criminal justice supervision.Footnote ⁷ Notably, 1.4 million are African American men, who are disenfranchised at a rate seven times higher than the national average. Unlike most Western European nations, where the voting rights of those released from confinement are unquestioned and where the legal debates have concerned only the voting rights of the currently incarcerated, the entire spectrum of felony voting rights is intently contested in the United States.

Why have felony disenfranchisement laws proven so resistant to challenge in the United States? In stark contrast to the history of both the women's suffrage and the civil rights movements where the federal government led the liberal march towards suffrage expansion, neither Congress nor the federal courts have assumed the mantle of reform of felony disenfranchisement laws. Indeed the Supreme Court in 1974 stalled what had been an incipient movement to loosen felony restrictions by determining in a landmark case that three residents of California who had been convicted of felonies and who had fully completed their prison sentence and their time on parole had not been deprived of constitutional protection by the counties in which they were disenfranchised.Footnote ⁸ It was not until 1985, in a case involving a bald trail of intentional racial bias, that the Supreme Court ruled in favor of plaintiffs who had lost their voting rights on the basis of criminal convictions.Footnote ⁹ Congress, too, has eschewed close to all opportunity to set the course of reform. Despite the introduction of numerous bills, neither the House nor Senate has voted to endorse any form of a bill aimed at the restoration of voting rights.

Efforts to modify or end disenfranchisement restrictions have thus been left to the initiative of state-level advocates. Most significantly, a number of states have moved to modify lifetime bans.Footnote ¹⁰ Two states, however, continue to disenfranchise for life all people ever convicted of felonies and at least eight other states impose lifetime bans for many categories of felony convictions that can be redressed only by individual petition. Thirty-five states continue to bar from voting anyone released to probation or parole.Footnote ¹¹

Despite a burgeoning advocacy movement supporting expansion of voting rights,Footnote ¹² challenges to suffrage restrictions from prominent bar associations and academic scholars, and despite a raft of legislative initiatives,Footnote ¹³ policy changes have been incrementalFootnote ¹⁴ and they have not all been in the direction of greater inclusion. In the last ten years, of the four states (Utah, Massachusetts, Vermont, and Maine) that had permitted prisoners to vote, only the latter two continue to extend voting rights to people in prison. There are several explanations for the slow pace of reform. Partisanship is one reason: Initiatives behind reform efforts have largely come from only one side of the aisle.Footnote ¹⁵ And state legislators, as at least one study has shown, are largely divided by party in their support for reform.Footnote ¹⁶ America's racial history is also a crucial part of the explanation. Reviewing the centuries-long patterns of America's disenfranchisement laws from before the Civil War to the present, Jeff Manza and Christopher Uggen draw attention to the concentration of such laws in periods when racial threat seemed most imposing and in states where the nonwhite population (including the prison population) was measurably highest.Footnote ¹⁷ Other explanations, when viewed in a comparative perspective, stress the influence of different constitutional structures and the importance of different locations of policymaking (e.g., bureaucracy vs. electoral politics).Footnote ¹⁸

These provide compelling institutional and structural explanations. The puzzle we address in this article, however, is why the founding ideas of American liberalism, with their broad cross-partisan reach and with their ostensibly strong repudiation of racial ascription, have not afforded adequate and unequivocal argumentation to overcome these institutional and structural obstacles.

We begin this discussion with contending portrayals of the relationship between liberal and illiberal traditions within the panorama of American civic culture. In the main body of this article, we turn to the three strands of liberal argumentation that have surfaced in advocacy debates over reform, in court decisions, and in the legislative domain.

Liberalism and Rogers Smith's “Multiple Traditions”

Two interpretive frameworks provide a conceptual starting point in any analysis of liberal and illiberal traditions within American democracy. These are the unitary liberalism of Tocquevillean provenance and the multiple-traditions critique of the liberal hegemony thesis developed by Rogers Smith.Footnote ¹⁹ The Tocquevillean thesis, as Rogers Smith depicts it, constitutes a long-lived “orthodoxy on American identity.”Footnote ²⁰ The Tocquevillean perspective adheres to a view of American history that identifies the distinctive character of the nation as free-born, unburdened by the givens of aristocracy and status hierarchy. By dint of this history, Americans are seen as baptized in the waters of egalitarian ideals and liberal beliefs. Racism and other exclusionary beliefs and practices are bracketed as departures from rather than constitutive of a common national ideological core.

In his multiple-traditions critique, by contrast, Rogers Smith describes this core national culture as an intertwining of three distinctive traditions: liberalism, republicanism, and exclusionary forms of Americanism.Footnote ²¹ The multiple traditions thesis sees American civic identity as forged through the historical forces of exclusionary as well as egalitarian, moralistic as well as tolerant, ascriptive as well as achievement-based norms and practices. The threads of exclusion are not just visible on the margins. The warp of racism, sexism, and other ascriptive beliefs and practices is fully intertwined among the weft of liberalism and republicanism.

One central intellectual tension that emerges from Smith's analysis directs us towards an amended conceptualization of the multiple traditions idea. This appears with Smith's portrayal of the three traditions as autonomous but intertwining. Despite this description, liberalism and republicanism are acknowledged in his monumental study of Civic Ideals as periodically mutually constitutive—merging on occasion as a kind of liberal republicanism.Footnote ²² Little such possibility is accorded the relationship between liberalism and ascriptive traditions. This is a puzzle which we claim can only be resolved by the recognition of liberalism's inclusionary and exclusionary politics. Internal to the very doctrine of liberalism itself are conceptual premises that encourage claims to inclusion and that—resting on the very bedrock of liberal assumptions of individualism, choice and responsibility—concurrently create the grounds for liberal exclusion.

Instead, then, of seeing the battling forces of inclusion and exclusion as opposing encounters of liberal and republican inclusion on the one hand mounted against the intolerant practices of racial/ethnic and gender ascription, on the other, we see these conflicts as constitutive of the long legacy of American liberalism itself. With the emphasis on abstract individualism and choice, liberalism provides a favorable theoretical ground for felony disenfranchisement. The liberal rationale for disenfranchisement rests as much on individual agency as on ascription. Whereas gender and racial voting barriers were presumptively deemed (by liberal thinking) to be illegitimate by virtue of their involuntariness, the current exclusion from the ballot box of those who have committed crimes can be and often is seen as self-inflicted—a matter of choices made, not burdens inherited.

In directing our critique to those aspects of liberalism which accentuate exclusion, two points bear emphasizing about what we are and are not claiming. First, we are not holding liberalism responsible for its reticence on many issues that bear on inequality.Footnote ²³ No doctrinal tradition offers a full and sufficient account of all the conditions that underwrite equality. Eileen McDonagh's argument in this regard is compelling. She contends that equal rights alone are not sufficient to ensure equal access to electoral office for women. Maternalist policies that acknowledge difference are an important additional source of women's advancement.Footnote ²⁴ Equality may well be more easily achieved when policies stress “difference” as well as sameness, structural change as well as individual transformation. We have no disagreement with this.

Our second claim is both conceptual and interpretive. We attend to the ways that particular constructs, central to the lived tradition of American liberalism, provide theoretical argumentation for both an inclusionary and exclusionary politics. Both Carol Pateman and Uday Mehta make arguments, albeit not specific to American liberalism, that are cognates to our own.Footnote ²⁵ Pateman sees in the idea of contract and in Locke's embrace of property in the person the basis for liberalism's gender exclusion. The liberal individual, Pateman argues, is not a person without gender, whether in Locke's own writings or in liberal theory as broadly conceptualized. In the contractual understanding that emerged with modern law, women lacked ownership over their person. Women's exclusion, thus, exists at the conceptual core of liberal theory. Uday Mehta makes a similar argument with respect to liberalism's exclusions in the context of the colonized. Behind liberalism's assumption of the universality of individual capacities, Mehta argues, “are the specific cultural and psychological conditions that are woven in as preconditions for the actualization of these capacities.”Footnote ²⁶ Central to these conditions is the capacity for reason seemingly lacking among those whose ways of thinking appear unfamiliar or even childlike.

Although we neither specifically address personhood and property nor rationality, we argue that a doctrinal tradition that gives pride of place to individual intentionality, contract and consent, personal responsibility, and character is weighted towards the affirmation of certain classes of individuals and the indictment of others. Stark binaries easily emerge from this family of ideational constructs that pit “monsters” against the morally impregnable. Abstract conceptions of individuality, responsibility, contract or freedom of choice obscure the effects of hierarchical systems of class, race (and gender) and treat the disproportionate incarceration of African Americans in the United States and the racialized character of felony disenfranchisement as a straightforward matter of individual choice and irresponsibility. Housing liberal notions of freedom, agency, responsibility, and punishment, as William Connolly observes, is a two-world metaphysicFootnote ²⁷ (whose genealogy Connolly traces back to Kant) that posits all responsibility onto a will elevated above the material world, free from all sensuous, worldly influences. From that point onwards, mankind's lived experience of criminality and punishment finds its origins in the faulty will of the individual alone as opposed to some set of flaws endemic to the world.Footnote ²⁸ The irresponsible, as William Connolly writes in Ethos of Pluralization, “know in advance that those who are astonished by the crimes they commit will never listen to a delineation of its cultural conditions of possibility.”Footnote ²⁹

Our focus on liberal exclusion, then, takes us in a direction that is different from the multiple traditions framework in two respects. First, it is our intention to hold liberalism to greater account than that which is emphasized in the multiple traditions approach. In this sense we join with Smith's earlier critics who viewed the multiple traditions argument as ceding (in Smith's own words) “too much of the responsibility for the ills of American life to the nation's ascriptive traditions, wrongly exonerating liberal values and institutions from any share in promoting unjust inequalities.”Footnote ³⁰

Second, we approach the question of liberalism's “complicity” from a position orthogonal to Smith's own. Smith readily recognizes as historically important the gender and colonial exclusions described by Pateman and Mehta and cites in his own studies a number of situations in which liberal ideas fostered other exclusionary practices. These resultant inequalities in Smith's analysis, however, lead him to insist that none of these exclusions are “required” by liberalism when viewed, essentially, as an ideal type. Nothing about these exclusions, Smith maintains, is “logically required” or a matter of “conceptual necessity.”Footnote ³¹

Like Smith, we do not see the liberal constructs (of individuality, choice, contract, responsibility) as necessitating exclusion at the level of ideal type analysis. Indeed, even “on the ground” we emphasize the ways that advocates of equality have used with at least some efficacy each of the liberal constructs we discuss on behalf of greater inclusion. At the same time, however, we do not think that the absence of a logical entailment automatically exculpates liberalism from any constitutive liability for exclusionary practices. Thus our focus is on the ways that advocates (liberal and conservative) draw on long-enduring conceptual understandings within liberal argumentation to advance an exclusionary politics. To recognize an idea or a language construct as indeterminate is not inconsistent with recognizing that ideas and language have deeply-formed histories that can broaden or narrow the possibilities for their reconceptualization.Footnote ³²

In suggesting that exclusionary arguments rely heavily on foundational constructs of liberalism, we portray the liberal tradition not as one of several autonomous (liberal, republican, and ascriptive) ideologies intertwined in helix formFootnote ³³ but as an ever-flowing river of intermingling hues. In seeking to recognize this complexity, we consider three different strands of liberalism that have been important parts of the debate over felony disenfranchisement: (1) proscriptions against race discrimination; (2) contractarian arguments; (3) debates about responsibility and character. In each of these strands, we identify a hyphenate liberalism (liberal-ascription or liberal-republicanism) in order to understand the ways that exclusionary practices are justified in liberal terms.

Felony Disenfranchisement: Three Strands of Liberalism

Numerous arguments have been utilized in defending and opposing felony disenfranchisement.Footnote ³⁴ Some are merely pragmatic—if you can serve your country after a felony conviction, you should be able to vote after a felony conviction.Footnote ³⁵ Others draw on religious doctrine calling for symbolic banishment as retribution for transgression and malfeasance. Still others call for the possibility of redemption.Footnote ³⁶ The range is vast. Liberal arguments, however, are the mainstay of much debate and policy-making. Not surprisingly, all strands of liberal arguments have been used to argue on behalf of suffrage expansion. More surprising, however, is the prevalence of liberal arguments deployed against enfranchisement and their utilization not only by conservatives but also, if less frequently, by self-defined liberals as well. We preview our analysis of liberalism as a hyphenate tradition:

Racist intent as liberal-ascription. Most courts have relied on the longstanding liberal argument (with its provenance in liberal individualism) that sees a finding of discrimination as requiring evidence of biased intentionality. Several courts have declined to identify racial intent underlying disenfranchisement laws even when significant historical evidence points to its presence.Footnote ³⁷ Most federal courts (including two of the more liberal circuit courts and a number of liberal judges) have eschewed the liberal Ninth Circuit example, which recognized the institutionalization of discrimination as a precipitant to vote dilution. To rely only on the most overt evidence of racist intent in contemporary times is to deny the persistence of subtle and deeply embedded discrimination. This is felony disenfranchisement as liberal-ascription.

The social contract and choice as liberal-ascription. Even as the liberal metaphor of choice or contract has been deployed in the service of reform (supporting the restoration of citizenship to “those who have paid their dues”), contract arguments have served as a powerful argument for the disenfranchisement of individuals who are doing time or serving probation or parole. Contract and choice arguments present a dilemma that divides liberals. Such arguments focus on individual agency rather than on the structural conditions whereby race circumscribes decisions leading to the punishment of “bad decision makers,” however racially disproportionate. This too is felony disenfranchisement as liberal-ascription.

Responsibility and character conditionalities as exclusionary liberal-republicanism. The liberal-republican argument that sees politics as predicated on individual moral virtue presents a similar dilemma for liberal reformers. Many individuals who have spent time in prison engage this argument avidly, providing personal testimony of their efforts and successes at self-transformation. As powerful as such arguments can be, they virtually necessitate the exclusion of ‘ordinary felons’ whose economic, social and personal lives cannot begin to evince such personal transformation. This is felony disenfranchisement as ascriptive liberal-republicanism.

Race Discrimination Laws, Intentionality, and Liberal Ascription

Laws that bar discrimination on the basis of ascriptive characteristics are the backbone of a liberal polity. As a means of dismantling felony voting barriers, however, anti-discrimination measures have proven markedly ineffective. The reason for this is straightforward: The jurisprudential reliance on intentionality—a keystone of American liberal individualism—and commitment to impartiality of intent as opposed to effect as the sole measure of fairness has significantly burdened efforts to establish linkages between racial discrimination and felony disenfranchisement. The Fourteenth Amendment and the Voting Rights Act both stand as monuments to the liberal repudiation of racial discrimination. But to the extent that norms of intentionality govern their interpretations, the strength of liberalism as a doctrine of suffrage expansion in the context of felony disenfranchisement is much diluted. Where findings of discrimination in the law depend on evidence of verbalized expressions of individual racist intentions rather than on evidence of patterns and practices of institutionalized bias, racial exclusion albeit justified in liberal terms has been the result.

The racially-disparate consequences of disenfranchisement laws are incontrovertible. Thirteen percent of black men are barred from voting nationally—a figure that is considerably higher than the less than 2 percent rate for the voting-eligible population at large.Footnote ³⁸ In some states (Alabama, Florida, Iowa, Mississippi, Virginia, and Wyoming among others), twenty-five to thirty percent of African American men are disenfranchised—a figure that may decline with time if efforts to reform blanket disenfranchisement in some of these states take effect.Footnote ³⁹ By looking for evidence of discriminatory intent, however, the law has failed to recognize in these racially disparate consequences either a process of institutionalized racial discrimination (as the Ninth Circuit reasoned)Footnote ⁴⁰ or a way to redress the racial consequences even in the absence of overt race-based discriminatory purpose.

It is not that linkages between race and disenfranchisement, seen as a phenomenon of institutionalized rather than individualized discrimination, are difficult to discern. Indeed, the Ninth Circuit's recent decision in Farrakhan v. Gregoire Footnote ⁴¹ reached exactly such a holding based on the view that racially-skewed criminal justice practices have led to racially-disproportionate patterns of incarceration and hence to policies of disenfranchisement that violate the strictures of the Voting Rights Act. But most appellate courts based on the broad normative acceptance of standards of intentionality have persistently rebuffed discrimination claims.

The reliance on intentionality standards was not central to the early precedent-setting case of Richardson v. Ramirez (1974). Indeed, the Court majority mostly managed, as Julie Novkov has observed, to sidestep the question of race. In repudiating the claim that felony disenfranchisement violated the equal protection guarantee of the Fourteenth Amendment, the majority reasoned that no denial of equality had occurred, any more than had been the case with the nineteenth-century bigamy/polygamy holdings or more recent cases, including as Novkov notes, “jarringly, a North Carolina case from 1959 upholding a literacy test.”Footnote ⁴²

Based on the facts of the case alone, the Supreme Court had a prime opportunity to rule against disenfranchisement laws. The three plaintiffs were all individuals who had served their time and completed parole. Two had been sentenced only to three months and two years, respectively. Both individuals had been released from parole eleven and fourteen years previously. On a juridical level, the Supreme Court could have chosen to follow some version of the California court's decision which had laid out a straightforward equal protection argument requiring less burdensome penalties in lieu of outright disenfranchisement given what they read to be the state's interest in protecting the citizenry primarily against electoral fraud or treason. Instead the Court found in the Fourteenth Amendment's Section 2 (which exempted states from being penalized for failing to count for purposes of representation those convicted for “rebellion and other crimes”) an exception to the equal-protection requirement, holding that the same standard of scrutiny that other equal protection claims might demand need not apply to those convicted of crimes.

The importance of the intentionality standard was only hinted at in Ramirez. In so far as the Court's holding considered the issue of race at all, the majority found no racially exclusionary intent in the “exemption” specified in Section 2. Although this reasoning failed to convince Justices Marshall, Brennan, and Douglas who joined in dissent, Justices Stewart, White, and Powell (generally regarded as moderates) voted with the Rehnquist majority.Footnote ⁴³ Even in 1974, just on the heels of the civil rights movement and only a few years after the 1971 violent confrontation between state police and prisoners in Attica, the liberal, equal-protection principle was readily interpreted to underwrite a law that affirmed the assignment of lifetime disenfranchisement to follow from a sentence of a few months or a few years.

The importance of the intentionality standard surfaced with Hunter v. Underwood (1985) —a case in which the “gun” of intentionality was found to be still smouldering eight decades later. The Supreme Court's decision rested on evidence of repellingly explicit language in the record that left little doubt about the discriminatory intentions of the earlier lawmakers. Speaking at the 1901 Constitutional Convention in Alabama, Convention President John B. Knox urged the proceedings to establish “White supremacy … within the limits of the federal Constitution.” If Alabama were to enjoy White supremacy, he urged, “we must establish it by law—not by force or fraud.” To exclude Blacks from the franchise was based not on race, he averred, but on the race's inferior intellectual and moral character.Footnote ⁴⁴ Subsequent efforts to demonstrate racial motivation behind felony disenfranchisement laws, however, have rarely “benefitted” from such explicit language in the record and have largely failed to meet the test of “intentionality” required by the courts.Footnote ⁴⁵

The statutory route might have proven less obstacle-laden than the constitutional road since the Voting Rights Act (VRA) encompasses a broader results-based evidentiary view of structural or institutional bias.Footnote ⁴⁶ In Hayden v. Pataki, for instance, the court opened its discussion by acknowledging the precise wording of Section 2 of the VRA that states “no voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote.”Footnote ⁴⁷ For the most part, however, the federal courts have chosen to eschew utilization of such a possible opening by declaring the VRA inapplicable to the issue of felony disenfranchisement.Footnote ⁴⁸

This reading of the Voting Rights Act has drawn fire from a number of the liberal judges on the circuit courts,Footnote ⁴⁹ but, as with the Supreme Court's Richardson v. Ramirez decision, some liberals on the courts have concurred with their other colleagues in finding the VRA inapplicable to felony disenfranchisement claims.Footnote ⁵⁰ Efforts to seek recourse in the courts for felony disenfranchisement based on discrimination claims have thus met with considerable frustration.Footnote ⁵¹ Most courts have eschewed an understanding of race discrimination similar to the approach of the Ninth Circuit that would require judicial recognition of the processes by which race discrimination comes to be institutionalized. They have, instead, relied heavily on what has become in effect a liberal-ascriptive argument that sees race discrimination as justiciable only in the presence of clear, overt evidence of individual racial intent. Felony disenfranchisement may not have originated in the soil of racial inequality but it is, nevertheless, steeped in America's racial history. To the extent that liberal anti-discrimination efforts are held hostage to the standard of individual intentionality, liberal arguments as an instrument to dismantle suffrage inequality will undoubtedly fail.Footnote ⁵²

The Contract Approach and Liberal Ascription

Similar to anti-ascription strictures, contractual arguments are at the heart of liberal principle. The language of “contract” is central to an understanding within liberal theory of how individuals can exercise freedom of choice (agency) and at the same time submit themselves to legitimate authority. With this deep resonance in American liberal history, it is not surprising that advocates on both sides of the felony disenfranchisement debate seek to appropriate contractual metaphors for their own purposes. Although both sides have used contract arguments with good effect, it is revealing how ultimately limiting the language of contract is for advocates of reform.

One of the most widely cited and early invocations of the contract argument in support of curtailing voting rights came from the pen of the highly regarded Second Circuit jurist, Judge Henry Friendly. A well-recognized conservative who viewed with concern the expanded rights that the Warren Court had sought to extend to those charged with crimes,Footnote ⁵³ Judge Friendly drafted the Second Circuit court's 1967 decision firmly holding the line when New York's disenfranchisement law was challenged. In the decision, he invoked John Locke's script on the social contract laying out what has become an often-quoted passage in subsequent court rulings upholding state felony disenfranchisement laws: “A man who breaks the laws he has authorized his agent to make for his own governance could fairly have been thought to have abandoned the right to participate in further administering the compact.”Footnote ⁵⁴

Conservative politicians have similarly looked to liberal arguments of contract in their successful efforts to defeat felony disenfranchisement reform. Speaking against a 2002 bill that would have provided extended voting rights to people with felony convictions in federal elections, Senator Mitch McConnell (R-KY) declared, “Those who break our laws should not have a voice in electing those who make and enforce our laws. Those who break our laws should not dilute the vote of law-abiding citizens.”Footnote ⁵⁵ When the bill came up for a vote, it was defeated by a 63 to 31 margin with 23 of the 50 Democrats (including Senators Biden, Feinstein, Harkin, Schumer, and Wyden, all liberal democrats) joining the forty-person Republican opposition.

As with the liberal construct of race discrimination, the exclusionary or inclusionary implications of the liberal idea of contract depend on its particular contextual interpretation. Advocates of vote restoration have by no means ceded the terrain of contract to exponents of disenfranchisement. Mindful, from survey research conducted to discern public attitudes, that a significant majority of the American public believes that the vote should be restored once an individual has “done his time,” reform advocates have in fact sought to harness the contract argument towards the purpose of suffrage enlargement. Two studies have led reform advocates to see the contract approach as promising. A commissioned focus group analysis in Florida found that “support is driven mainly by a belief that once someone has paid his debt to society he should be given back the right to vote.” The study recommended approaching the issue of disenfranchisement through a message that would have “broad appeal.” Rather than emphasizing the diminished rights of racial minorities, or appealing to the language of rights at all, the focus group sponsors and other advocacy groups concluded that the most powerful message would be one “that simply reminds voters of the unfairness of taking away the vote after someone has paid his debt.”Footnote ⁵⁶ Additionally, in a nationwide survey conducted by Harris polls, sociologists Jeff Manza, Clem Brooks, and Christopher Uggen reported that while only 30 percent of the public supported voting rights for people serving time in prison, 60 percent supported voting rights for people on parole, 68 percent for people on probation and 80 percent for those who were no longer under any form of criminal justice supervision.Footnote ⁵⁷ Advocacy groups thus gleaned a strategic lesson about a contract-based framework: Although the public views disenfranchisement in prison as the price for a broken contract, this view can be turned to positive effect by arguing that contractual fairness demands the restoration of the vote at some point once that price is determined to have been paid.

Although this contract argument—“once your debt has been paid, your rights are restored”—has the advantage of its public appeal, some liberal advocates have counseled against its unreflected use. As Marc Mauer, executive director of the Sentencing Project, cautions,

In an academic domain, both Carol Pateman's and Charles Mills' theoretical writings use the idea of contract as a heuristic device to point towards foundational inequalities in liberal societies.Footnote ⁵⁹ As a strategic “frame,” however, contract is malleable enough to be used for multiple, sometimes opposing inclusionary and exclusionary purposes. However, while both advocates and critics of felony disenfranchisement have relied on the idea of contract to advance their different convictions, the valences of contract language are not evenly weighted for and against full enfranchisement. Appeal to the metaphorical contract provides proponents of enfranchisement with an intermediary strategy to argue for some degree of suffrage expansion. At the same time, however, contractarian ideas do not only provide opponents of enfranchisement with the conceptual means to legitimate exclusion in liberal terms; they also imply that some concession to disenfranchisement must be made for whatever period of disenfranchisement will serve as penalty for its abrogation. Whether that period is time served behind bars, on probation, or on parole, whether completion of criminal justice supervision also requires the full payment of all outstanding debts, court costs, fees, and fines, or whether the act which causes such disenfranchisement is of a relatively remediable or of heinous nature, the very idea of a breached contract directs the debate towards a mandated period of political exile.Footnote ⁶⁰

For those who defend felony disenfranchisement on a contractarian basis, the loss of political privilege or rights is seen as a bedrock requirement of a liberal, democratic state. It is interesting, in this regard, that prisoner voting is, nevertheless, sanctioned in large numbers of European liberal states. Such a juxtaposition can only call attention to the exclusionary dark side of American liberalism.Footnote ⁶¹

Responsibility, Character, and Liberal Republicanism

Much of the debate over felony disenfranchisement is also contested on the terrain of “virtue” and “character,” topography that is generally unfavorable to advocates of suffrage inclusion. While classical republicanism stressed the cultivation of moral virtue through active participation in pursuit of the public good (a framework that might well embrace suffrage expansion), liberal republicanism posits the importance of individual virtue and moral character as the basis of a strong moral economy and stable polity. The privatization of virtue thus assigns all responsibility to the (wayward) individual.Footnote ⁶² Translated into the familiar colloquialism: you make your bed, you lie in it.Footnote ⁶³

The discourse of liberal republican virtue retrieves a centuries-old characterological mode of legal thinking. Drawing on Henry Maine's depiction of law as shifting from status to contract and H. L. A. Hart's discussion of responsibility in the context of punishment, Nicola Lacey proposes a distinction between early characterological views of the law and a later capacity-based view of criminal process. In the eighteenth century, she notes, the “criminal process was geared to identifying, holding responsible, and punishing those whom the local community regarded as incorrigible: those who lacked support among their peers on the basis of their previous conduct and general reputation.Footnote ⁶⁴ Echoes of this characterological discourse suffuse much of the felony disenfranchisement debate.

Opponents of enfranchisement, for example, often speak of murderers and rapists not only invoking the worst (and among the rarest) acts that the prison system punishes but also rendering these criminal acts and a person's character synonymous. Characterological discourse is laced with seamy profiles of those whose criminal histories are most likely to offend public mores. From Senator McConnell's speech opposing felony disenfranchisement cited earlier, “We are talking about rapists, murderers, robbers, and even terrorists or spies. Do we want to see convicted terrorists who seek to destroy this country voting in elections? Do we want to see convicted spies who cause great damage to officials who are tough on crime?”Footnote ⁶⁵ A similarly vituperative defense of disenfranchisement by authors of a Second Circuit amici brief begins with a two-paragraph graphic description of the murder of two policemen for which Jalil Abdul Muntaqim (aka Anthony Bottoms), the plaintiff, was convicted: “Jones was dead before he hit the ground, .45 caliber slugs having ripped through his skull, his spine, his diaphragm, and one of his kidneys. One of the gunmen shot Piagentini several times with a long-barreled .38 and continued to fire as the officer lay writhing on the ground”Footnote ⁶⁶—a no-holds-barred characterological critique of vote restoration.

As with the contract argument, however, opponents of felony enfranchisement have not ceded the grounds of liberal republicanism to the critics. Many advocates of expanded voting rights use characterological discourse that stresses redemption. This characterological trope—of the “felon made good”—appears in court cases, legislative hearings, and frequently in testimonies by once-incarcerated individuals. The virtuous, once-bad-now-rehabilitated imagery has solidified as one of the dominant rhetorical tools in arguments for voting rights after felony convictions. In the 2002 debates over Maryland's disenfranchisement law, for instance, formerly incarcerated individuals who had lost the right to vote were invited to testify in the hearings. A Baltimore Sun article tells the story of one attendee: Fifty-year-old Johns Hopkins University instructor Carl Owens, whose two 30-year-old convictions—holding up a Baltimore convenience store and writing a bad check—had left him permanently disenfranchised in the state of Maryland. Supporters of the bill that would “restore the right to vote to felons and other criminals after they complete their sentences,” point out that the current law does not only disenfranchise two-time felons, but “anyone twice convicted of hundreds of lesser crimes.” In the twelve-paragraph article, only three sentences pay lip service to the opposing side. The article goes to great lengths not only to rehabilitate Owens, but also to demonstrate the minimal extent of his original involvement with the criminal justice system. The most recent crime he committed was writing a bad check, and that was 29 years ago. Thirty-one years ago, he held up a convenience store, and those two convictions were enough to get his voting rights taken away permanently. Owens refers to himself as “an exemplary citizen.” The article points out that he is an instructor at a prestigious university, and that he participates in government, in this case by attending a Senate hearing. Here, Carl Owens partly embodies the liberal contractarian argument. Reenfranchisement is not framed as rewarding “criminals” but as extending political rights to those who have strayed from the contract and then returned to it having paid their debts. But central to that frame is the virtuous life that Carl Owens has led upon his release.Footnote ⁶⁷

There is nothing unusual about a campaign to change policy employing an especially sympathetic spokesperson. The language of rehabilitation, furthermore, is familiar. Public defenders and other advocates for individual clients in the criminal justice system use it regularly to argue for mitigation in sentencing decisions or to help clients overcome civil forfeitures triggered by criminal charges. What is notable here, however, is the commitment advocates for enfranchisement are willing to make to the narrative of the meritorious voter with a past felony conviction.

Carl Owens is portrayed as a man who has earned his right to vote by pulling himself out of the permanent underclass on his own. He went through the system and learned his lesson. Now he supports himself through a teaching position at a prestigious institution, rather than by writing bad checks and holding up convenience stores. His desire to vote stems from the value he places on his citizenship—not just the power of choosing a candidate but the symbolic action of participation in government. The liberal republican riposte to felony disenfranchisement advocates is to argue that men like Carl Owens need to be held up for public appreciation so that assumptions about hardened, dangerous criminals who willfully flout law and order at the expense of public safety can give way to a public perception of ex-felons as good, hard-working, and thoroughly rehabilitated citizens.

The trope of the for-all-intents-and-purposes innocent victim of disenfranchisement—the man whose crime was never that serious to begin with, who served his time, paid his debt, and has been an exemplary citizen for decades while society continues to treat him like a criminal—puts in an appearance almost invariably at every legislative airing. Here it is in the US Congress as Senator Harry Reid introduces his bill to reform felony exclusion laws in the 2002 Senate session with a recently received letter:

But as is true of the liberal construct of contract, the liberal republican characterological framework is not a tool that serves both sides of the felony disenfranchisement debate with equal effectiveness. There is no better illustration of this than in the historical use of “good character” requirements and tests for voting (as well as earning) implemented in southern states through the Black Codes and later Jim Crow legislation.Footnote ⁶⁹ Three more contemporary issues undermine the effectiveness of the model citizen argument. For one thing, it distorts reality. Most people with past criminal justice involvement are not like Senator Reid's correspondent. Most have difficulty finding a living wage job, and many have trouble finding any job at all. Many prioritize more immediate concerns—stable housing, reuniting with family, finding a source of income—over civic participation. Expressions of a fervent desire to be part of the political process are rare. People coming home from prison—the vast majority of whom are poor people of color—are most likely to return to a social milieu where the politicians they may have heard, or possibly seen, but rarely met have never particularly welcomed their participation.

A second problem with elevating model spokespeople with past convictions is that it is a strategic trap. By framing a response to critics in terms of unassailable rehabilitation, supporters undermine their own advocacy of voting rights for someone just released, on probation, on parole—never mind still in prison. “Rehabilitation” by definition takes time. If anything, this language is a justification for a long lapse between doing time in prison and claiming eligibility to vote. It is no surprise, then, that when Senator Reid seeks to reassure his colleagues in the Senate bycontrasting his bill with Connecticut's expansion of voting rights in 2000. He emphasizes that the bill he proposes with Senator Specter is narrow in scope for reasons of principle, not political compromise: “It does not extend voting rights to prisoners. Some states do that. I don't believe in that. It does not extend voting right to ex-felons on parole, even though 8 states do that.”Footnote ⁷⁰ It is also easy to understand how the “rehabilitated felon” trope leaves supporters immobilized when critics make distinctions as they did (successfully) in Delaware in 2000 between those with felony convictions for less and more serious crimes.

A third problem of the “honorable felon” trope is that it favors familiarity. This is a plausible explanation for Utah's distinction along with the then-three other New England states—Maine, Vermont, and Massachusetts—which for many years permitted anyone with felony convictions, including individuals in prison, to vote. With the criminalization of polygamy that led to the incarceration of familiar, highly respected elders of the community, disenfranchisement was viewed through a very different lens.

Similar to the contract argument, character-based arguments for voting rights almost by definition justify the disenfranchisement of those behind bars and invite the judgmental wand of electoral curtailment well beyond the prison gate. Incorporating would-be voters based on a proviso of demonstrated characterological worthiness constitutes a profoundly exclusionary foundation on which to build the case for felony enfranchisement.

Liberalism Outside of the United States

The constructs of race discrimination, contract, and responsibility which have been a central part of the felony disenfranchisement debate in the United States appear to have carried far less discursive weight outside the United States. Rights language, by contrast, occupies a more central place at least within European, South African, Canadian, and Israeli jurisprudence. Ironically, given the erstwhile prominence of “rights” language and the leadership of the United States in the domain of civil rights some decades earlier, it is striking how much more prominently “rights” formulations figure in the legal rulings about prisoner disenfranchisement in many countries outside the United States.

In Europe, Canada, South Africa, Israel and Australia, the law rarely imposes disenfranchisement strictures on persons released from prison and in many cases it extends voting rights to prisoners themselves.Footnote ⁷¹ Uniting the perspectives of the more inclusive approaches in these countries is the recognition of voting as a fundamental right of citizenship and the application of a strict level of scrutiny to any laws or policies including felony disenfranchisement that would abrogate such a right.Footnote ⁷² The Universal Declaration of Human Rights (1948) Articles 21 (1) and (3);Footnote ⁷³ the Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe, Article 3, of Protocol No. 1 (1950);Footnote ⁷⁴ and the International Covenant on Civil and Political Rights (1966), Articles 10 and 25Footnote ⁷⁵ all speak of voting as a basic right which, while not absolute, directs states to cease from treating incarceration as a blanket restriction circumscribing the franchise of all those convicted of crimes.

The European Court of Human Rights (ECHR), first in its Chamber judgment in 2004 and then in the High Chamber judgment of 2005, handed down a ruling that acknowledged the right of voting and repudiated just such a blanket ban that would not take into account the seriousness of the crime or length of sentence. The ECHR judgment declared the proscription against any incarcerated person voting that had been adopted in the British parliament to be “disproportionate, arbitrary, and impair[ing] the essence of the right (para. 45).”Footnote ⁷⁶ Britain has now undertaken a multi-year “consultation” which has led to proposals of different options, allowing at least some people incarcerated for shorter periods of time to vote.Footnote ⁷⁷

The High Court in Canada, similarly, employed the ringing vocabulary of rights as the basis of dignity asserting in a recent decision that “the government offered no credible theory about why it should be allowed to deny a fundamental democratic right as a form of state punishment … [T]he argument that only those who respect the law should participate in the political process cannot be accepted. Denial of the right to vote on the basis of attributed moral unworthiness is inconsistent with the respect for the dignity of every person that lies at the heart of Canadian democracy.”Footnote ⁷⁸ In South Africa, the Constitutional Court declared in April, 1999 that: “The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and personhood. Quite literally it says that everybody counts.”Footnote ⁷⁹ In Israel where the Supreme Court declined to abrogate Yigal Amir's right to vote despite his treasonous assassination of Prime Minister Yitzak Rabin in November, 1995, the court said that “contempt for this act” must be distinguished from “respect for his right.” The court went on to observe that “without the right to elect, the foundation of all other basic rights is undermined.”Footnote ⁸⁰

The greater readiness of the European courts to appeal to international law and to exert a stricter level of scrutiny (opposing blanket rights proscriptions)Footnote ⁸¹ reflects not just distinctive normative cultures but also distinctive institutional positions. Human rights argumentation in the context of prisoner rights has gained little traction in the United States due in part to what has been called in other contexts American “exemptionalism.” One way in which exemptionalism occurs, writes Michael Ignatieff, is when “the United States signs on to international human rights and humanitarian law conventions and treaties and then exempts itself from their provisions by explicit reservation, nonratification, or noncompliance.”Footnote ⁸² Felony disenfranchisement is just such an instance of American exemptionalism according to the United Nations Human Rights Committee, which has charged the United States with being in violation of the International Covenant on Civil and Political Rights (ICCPR) to which the US was a signatory.Footnote ⁸³

The institutional isolation of the American courts has inhibited efforts to invoke international legal principle. To date, efforts by American advocates of vote restoration to invoke the authority of international bodies and human rights have been largely symbolic. Only one felony disenfranchisement case, in fact, has appealed to international law.Footnote ⁸⁴ A growing number of reports, however, have come to make references to international human rights law as part of a broad enumeration of other arguments and, in a more assertive effort to involve international legal instruments, several non-governmental organizations recently filed a petition with the Inter-American Commission on Human rights asking that they find disenfranchised New Jersey citizens on parole and probation to have been denied their right to vote based on universal human rights principles.Footnote ⁸⁵

This difference in institutional relationships between foreign and domestic courts leads us to this penultimate observation: We would be remiss not to acknowledge the importance of institutional analysis in any account of suffrage expansion (or lack thereof). Richard M. Vallely's The Two Reconstructions, for instance, explains the contrasting periods of racial inclusion during Reconstruction and during the civil rights movement by looking at how courts and political parties shaped the formation of coalition and movement politics.Footnote ⁸⁶ Philip Klinkner's later work with Rogers Smith provides a powerful examination of the ways democratic expansion has occurred when major conflicts or war alter alliances, coalitions, movements, and party alignments.Footnote ⁸⁷ Several of the most interesting political science studies of incarceration, similarly, provide institutional and structural accounts of legislative progress and reversals. Marie Gottschalk highlights the failure of liberal interest groups to oppose the increasing harsh sentencing policies in recent decades against the historical backdrop of expanded state capacity.Footnote ⁸⁸ Vesla Weaver develops an important structural/institutional argument that identifies the political losers of the civil rights reforms of the 1960s as the key agents of the harsh punishment regime, a process she identifies as “frontlash.”Footnote ⁸⁹

Without minimizing the significance of such institutional approaches, we have nevertheless sought to focus in this article on the place ideas occupy in such an analysis. The different strands of American liberalism that have been in the crosshairs of the felony disenfranchisement debate point to the ways that liberal argumentation has justified exclusion. Both conservatives and liberals have employed liberal-ascription or exclusionary liberal-republican arguments to curtail suffrage expansion. The upshot, we believe, is a more hybrid-than-helix view of the American liberal tradition.