Last night’s Republican presidential debate raised the issue of felon voting. Rick Santorum was challenged over his vote for federal legislation that would automatically restore the voting rights to felons as soon as they are released from prison and have completed any required probation or parole.
As I testified nearly two years ago before the House Judiciary Committee, a federal statute of this nature would appear to be both unconstitutional and poor public policy. Section 2 of the Fourteenth Amendment specifically provides that states may abridge the right to vote of citizens “for participation in rebellion, or other crime.” Further, Section 2 of Article I and the 17th Amendment both reserve to the states the right to determine the qualifications of voters for the House of Representatives and the Senate (though those qualifications must match those for voting for state legislators). So the Constitution places the right to determine the qualifications of individuals voting in federal elections in the hands of the states.
A conservative like Santorum should recognize that Congress cannot take away through legislation a constitutional right specifically given to the states. That is beyond the power of the legislative branch.
Many states automatically restore the right to vote after a felon is released from prison, but others require individual applications. States are entitled to make their own decisions on this issue. That includes implementing procedures assuring a case-by-case determination as to whether an individual felon seeking to reclaim voting rights has paid his or her debt to society and, even more importantly, has shown that he or she can be trusted to exercise all of the rights of full citizenship.
It is perfectly reasonable for states to require felons to not only have completed their prison sentences and their probation, but to also have paid all fines and any restitution imposed by a court. Or to impose a waiting period after that to ensure that the felon is not a recidivist, as all too many are.
What is most striking about this issue is that all of the advocacy groups that push this issue are seemingly only concerned with restoring voting rights. In many states, voting is not the only civil right you lose when you are convicted of a felony. You may additionally lose the right to hold public employment as a police officer or school teacher; to sit on a jury; or to be a notary public.
You also lose your Second Amendment right to own a gun when you are convicted of a felony under both state laws and federal law (18 U.S.C. § 922(g)). Yet none of the legislation proposed in Congress would restore all of those other rights or amend the federal statute that permanently takes away the gun rights of “reformed” felons. The amendment proposed by Harry Reid (S.Amdt. 2879) to S.565 that Santorum voted for on Feb. 14, 2002, certainly did not. Apparently, felons can be trusted to vote but not to own a gun.
It is wrong to say that Santorum voted to allow felons who are in prison to vote (something they can do in Vermont and Maine); the bill he voted for did not do that. But it was certainly a mistake to vote for an unconstitutional congressional bill that would have overridden rights specifically delegated to the states by the Constitution to determine whether felons are allowed to vote.