Voting is a right, but not an unconstrained one. The right to vote is not granted to those under the age of eighteen. That age limitation demonstrates that voting rights may be restricted when there is reason to doubt the potential voter’s good judgment. Resident aliens are excluded from voting on the grounds that their interests are not necessarily coincident with the interests of ordinary citizens. Convicted felons are another class of citizens whose judgment is reasonably called into question. The interests of convicted felons are likely to be contrary to the interests of citizens as a whole, who want to be protected from criminals.

The U.S. Constitution does not grant individual citizens the right to vote for president. The electors for the President are determined by state legislators “by any means.” Clearly, the Constitution does not make voting in a preeminent right. The Constitution defines a republic, which generally subordinates the right to vote upon legislation to voting for legislators. There are clauses granting equal rights based based upon race and religion, and equal voting rights based upon gender, but there is nothing that prevents voting restrictions based upon other criteria.

Non-citizens are also excluded from voting. That is because the interests of non-citizens are likely to diverge from those of citizens on some important issues. The argument that the interests of criminals diverges from that of ordinary citizens is stronger than that for non-citizens. Convicted criminals have demonstrated where their interests lie, but for non-citizens it is only a reasonable supposition.

Supreme Court Justice Thurgood Marshall claimed that once a prison sentence is served, that felons have “fully paid their debt to society.”¹ However, being a jurist qualifies one to interpret laws, not to make them. Whether or not felons have fully paid there debt is a matter to be determined by law, and ultimately of the values of society as reflected in the lawmaking processes. For example, convicted sex offenders must register with the government and are restricted from certain interactions with children. The “three strikes and you are out” laws identify career criminals and remove them from society. The justification for both sex-offender registration and “three strikes” is that convicted felons are more likely to commit additional crimes than persons without a criminal record.

One can argue what the correct level of continuing debt to society ought to be, but the fact that convicted felons are more likely to commit crimes is unquestionable. The U.S. Bureau of Justice reports that “…over two-thirds of released prisoners were rearrested within three years”². Note that the two-thirds only reflects released felons who where caught within three years. It does not count those who committed crimes but were not arrested. Overall, only about 45 percent of violent crimes are solved, according to the FBI Uniform Crime Statistics ³ Factoring in the criminals not caught, we may reasonably suppose that the true recidivism rate is in the neighborhood of 85 or 90 percent.

Because recidivism rates are so high, the “debt to society” at the heart of this issue is not with respect to serving a sentence for a particular crime, it is in having adopted a criminal lifestyle. The convicted felon ought to have the obligation of establishing that his interests have become aligned with those of ordinary citizens and contrary to those with a criminal lifestyle. For example, that might be established after ten years without an arrest for a felony. It is not established by release from prison.

Only eight states currently prohibit convicted felons from voting for life. Two states (Vermont and Maine) permit felons to vote while in prison. Thirty-three states remove the franchise while convicted felons are on parole. Thus even if one accepts Thurgood Marshall’s argument that voting rights should be restored after felons have “paid their debt,” it is not mainly about criminals who have done so. The issue is mainly about criminals who are in prison or on parole and have not paid their debt.

Criminal rights advocates claims that in the 2000 election in Florida, that felons would likely have swayed the presidential election to John Kerry and away from George Bush. They claim that preventing that was undemocratic. There is no doubt that in a close elections the votes of those with an established criminal lifestyle voting for someone they feel to be in their interests could determine the outcome of an election. That, however, is a powerful argument that justice demands that election not be determined by such people.

Criminal rights advocates claim that fencing off a certain voter demographic is a fundamentally unjust principle. In reality, it depends upon the reason for fencing off the demographic. People under the age of 18 are fenced off on the reasonable grounds that in general they lack the knowledge and experience to cast an informed vote. Note that this is done despite some seventeen-year-olds being more informed than some citizens who are fifty or sixty. The fencing off is justified because the odds are so heavily against it. Similarly, not all convicted felons remains committed to the criminal lifestyle. But with about 85% recidivism, the odds are much against it. Therefore, it is reasonable and just to identify the demographic and exclude them.

Convicted felons are an identifiable target for politicians, who can seek votes by making various promises to tilt the justice system in favor of criminals. Politicians are clever enough not to go to prisons to make the appeal directly, as that would alienate other voters. They would use surrogates who espouse “improving” the justice system by weakening it. Even if no targeted appeal were made, criminals would figure out for themselves which candidate was most likely to facilitate their criminal lifestyle.

Crime victims are also an identifiable demographic. However, victims are less likely to vote based upon the single issue of weakening the justice system. For example, victims are citizens who worry about the health of the general economy because a good economy facilitates their making a living. A criminal lifestyle, however, is only facilitated by weakening the justice system.

The issue has frequently posed as one in which removing the right to vote is either punishment or retribution. This a false dichotomy. A completely separate reason for imprisoning criminals is to keep them from doing further harm. That is why convicted felons should not be allowed to vote. We should not want people whose primary interest is in pursuing a criminal lifestyle determining the outcome of close elections.

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Note: Voting rights for convicted felons is a national academic debate topic for this year. I presented these arguments in an Internet debate on debate.com. In academic debate, students alternate between pro and con positions in successive debates staged on the topic. I’m glad I didn’t have to take the pro position.

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1. Richardson v. Ramerez, in which three ex-felons sues to restore their voter registration. The applicants lost the case. Debaters customarily quote a losing argument by calling it a “vigorous dissent.”

2. Bureau of Justice, Recidivism

3. National Center for Policy Analysis, Violent Crime Clearance Rate (chart)