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50th anniversary of the Voting Rights Act

This month marks the fiftieth anniversary of the Voting Rights Act, and I was asked by the National Constitution Center to write something on that topic for them, which I was happy to do:

Let’s Keep the 1965 Voting Rights Act Focused on Actual Racial Discrimination

The 1965 Voting Rights Act was passed because of the appalling denial to African Americans of the right to vote in, especially, the Deep South.  There was and is an overwhelming national consensus that such discrimination is wrong, and this consensus was and is bipartisan.  Indeed, it’s interesting that Republicans voted in favor of the 1965 act more solidly in both houses of Congress than did the Democrats.  The act has transformed the American political landscape, and has been remarkably effective in halting racial discrimination in voting.

Some problems with the act have emerged over time, to be sure, largely as a result of bureaucratic overreaching.  Whenever efforts are made to address those excesses, the Left likes to assert that the basic principle of nondiscrimination is being challenged, but this is not true. 

Subsequent disputes over the act have involved only two things: the use of the “disparate impact” approach to its enforcement (that is, using the act to challenge racial disproportions of one kind or another even if those disproportions are not the result of actual discrimination); and whether there is any longer any justification for Section 5 of the act (involving “preclearance” of state and local voting changes by the federal government).  The Left favors the two because they provide an easy way to promote the racial gerrymandering it likes and to block the election integrity measures (like voter ID) it doesn’t.  But the race-based decision-making encouraged by “disparate impact” claims is bad for any number of reasons, and the Supreme Court was quite right to rule two years ago that, indeed, the preclearance formula of Section 5 can no longer be justified.

The racial gerrymandering and segregation fostered by the “disparate impact” approach is pernicious.  The Supreme Court has warned about the unconstitutionality of racial gerrymandering in a number of decisions; the practice encourages racial balkanization and identity politics; and, in addition, the segregated districts that gerrymandering creates have contributed to a lack of competitiveness in elections, districts that are more polarized (both racially and ideologically), the insulation of Republican candidates and incumbents from minority voters and issues of particular interest to minority communities (to the detriment of both Republicans and minorities), and, conversely, the insulation of minority candidates and incumbents from white voters (making it harder for those politicians to run for statewide or other larger-jurisdiction positions).  As Chief Justice Roberts wrote, it is, indeed, “a sordid business, this divvying us up by race.”

There are efforts in Congress now to resurrect Section 5 after the Supreme Court essentially struck it down two years ago, but such legislation in unnecessary and unwise.

The fact is that Section 5 was an extraordinary provision. It said that nine entire states and parts of seven others could not make any change — no matter how small — in any voting practice or procedure without getting advance permission from the federal government.  And it basically put the burden of proof on a state or local government to establish its innocence — not only of disparate treatment, but also of anything with a disproportionate racial impact.

Now, this was a good idea in 1965, although even Chief Justice Earl Warren twice called the provision “stringent” in upholding it. At that time, whole swaths of the country were systematically and blatantly denying people the right to vote because of race. But now there are no large sections of the country like 1965 Mississippi. I very much doubt, in fact, that there is any single state or local jurisdiction that is like 1965 Mississippi.

But what if there were? Well, then you have Section 3 of the act, which allows a judge to put a jurisdiction that denies or restricts voting rights into this kind of “preclearance” receivership. It’s been done. For other instances of racial discrimination, you have Section 2 of the act, which applies to the whole country. Remember that the only provision the Court struck down was the coverage formula for Section 5; the rest of the act is untouched.

Indeed, these other provisions are now being used, aggressively, by the Obama administration and liberal civil-rights groups, and there is no evidence that they need more weapons in their arsenals. If they can prove their cases in court, they will win — the way it works with every other civil-rights law — but with Section 5 they have gotten used to winning without having to prove anything, and that’s the only reason for the efforts to bring back Section 5.

In particular, reasonable people can differ about how to strike the balance between ensuring that eligible voters are able to vote and ensuring that ineligible voters do not.  If those efforts are motivated by race, they should be struck down — but by producing evidence of that discrimination in court, not at the whim of some bureaucrat. 

We don’t need Section 5 anymore. If it weren’t for the fact that, once upon a time, we did have states that made Section 5 necessary, and that over the years this unique provision has made life much easier for some lawyers, does anyone really believe that a provision like Section 5 would, in 2015, be drafted and given serious consideration?  Of course not.

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Two related voting-rights items.  First, here’s a long New York Times Magazine article that ran over the weekend, purporting to tell the story of “a largely Republican countermovement of ideologues and partisan operatives who, from the moment the Voting Rights Act became law, methodically set out to undercut or dismantle its most important requirements.” 

But actually, as I explained above, the most important requirement of the Voting Rights Act has always been its prohibition of denying anyone the right to vote because of race, and in recent years there has never been any significant movement — Republican or otherwise — to the contrary.
Second, because the Left continues to push bad legislation to resurrect that obsolete and pernicious part of the Voting Rights Act — and because this month marks the 50th anniversary of the Act — I can just see it coming up at the Republican presidential candidate debate on Thursday.  So, as a public service, here’s a suggested Q&A for the participants:

Q:  Do you support legislation to update the Voting Rights Act, since the Supreme Court gutted it two years ago?

A:  No, I do not.  No new legislation is needed. The Supreme Court struck down only one provision in the Voting Rights Act, and there are plenty of other voting-rights laws available to ensure that the right to vote is not violated.  Those laws require people who think there is discrimination to prove it in court before they can get relief, which is only fair and which is the way that every other civil-rights law works. 

[And if the candidate really wants to do his homework, he can add this to his response:] 

The law that was struck down really was unconstitutional, and is no longer necessary.  Liberals like it because it actually encourages race-based decisionmaking, including racial gerrymandering and segregation of voting districts, and because it makes it easier to block voter ID requirements and other ballot security measures — all at the whim of a federal bureaucrat. 

Hillary Clinton’s Voting-Rights Speech

Two observations on Hillary Clinton’s voting-rights speech last Thursday: 

First, it contained the predictable race-baiting demagogy — e.g., “what is happening is a sweeping effort to disempower and disenfranchise people of color . . .” No, what is happening is the usual effort to strike the right balance between facilitating voting by eligible voters and preventing voting by ineligible voters. If there is evidence of racial discrimination, the courts are open for business. 

Second, she showed, again predictably, her impatience with constitutional limits on federal power, in this case by endorsing federal legislation that would force states to allow felons to vote. Not only is automatic felon reenfranchisment a bad idea, but it is beyond Congress’s authority to pass such a law.

And speaking of the Constitution, she also endorsed efforts to overturn the Supreme Court’s decision two years ago in Shelby County v. Holder, which struck down as unconstitutional one section of the Voting Rights Act. But that decision was correct, and the bill that has been introduced to overturn it contains its own constitutional infirmities — in addition to being bad policy and unnecessary — as discussed here and here and here and here and here and here and here.

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There are a couple of other items on the felon-voting front, both involving proposed bills at the state level to allow felons to vote when they are still on parole or probation.
Maryland’s governor Larry Hogan vetoed a bill last month that would have reenfranchised felons on the day they walk out of prison — even if the parole/probation part of their sentences had not been served. Good for him.

As I and other conservatives had pointed out to him, such automatic reenfranchisement is “premature and unwise.”

To elaborate: If you aren’t willing to follow the law yourself, then you can’t demand a role in making the law for everyone else, which is what you do when you vote. The right to vote can be restored to felons, but it should be done carefully, on a case-by-case basis after a person has shown that he or she has really turned over a new leaf, not automatically on the day someone walks out of prison — let alone when parole/probation have not even been served. After all, the unfortunate truth is that most people who walk out of prison will be walking back in. 

The only bad news is that there may be a serious attempt to override the veto. Here’s hoping the votes are lacking in the Maryland state legislature.

And in Minnesota, the bill failed to pass the state legislature at all.  Here again, though, the struggle is not over, because the governor has asked that the bill be among those on the agenda he’s proposed for a special session of the legislature later this year.

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“The Case for Black Doctors”:  That’s the title of a recent New York Times op-ed by Dr. Damon Tweedy.  But his arguments in favor of racial preferences are unpersuasive, as discussed in my response:

Dr. Tweedy offers only two justifications for racial preferences in med school admissions: that many black patients prefer black doctors, and that African-American doctors are more likely to work in underserved areas.

Both are shaky as an empirical matter (see Sally Satel’s book PC, MD on the first, and the second was rejected by Justice Powell in his Bakke opinion), and both are shaky as a matter of policy (we wouldn’t indulge nonblack patients’ reluctance to have a black doctor, and there are more direct ways to improve service in underserved areas than the convoluted one of admitting doctors we hope might someday practice there).

But even if there is something to them, they would not justify the many costs of racial discrimination in university admissions — the unfairness, divisiveness, stigmatization, “mismatch” problem leading to lower graduation rates, and on and on. And in particular in this context, there is the cost to future patients of turning down the most qualified applicants and instead admitting less qualified individuals to become doctors. Is that ultimately a good thing for black patients? No wonder Dr. Tweedy admits finally that he is “ambivalent” about race-based affirmative action!

The Voting Rights Act Goes to the Supreme Court

The Supreme Court granted review this month in Shelby County v. Holder, a case challenging the constitutionality of Section 5 of the Voting Rights Act.  The Center for Equal Opportunity helped write and joined an amicus brief urging the Court to take the case.


That Bad Voting Bill Is Still Bad

Predictably, the Left has tried to use the Selma anniversary, along with the Oscars, to push its very bad amendments to the Voting Rights Act. Thankfully, there does not seem to be much interest, and rightly so. 

No new legislation is needed. The Supreme Court decision that the bill supposedly addresses struck down only one provision in the Voting Rights Act, because it was indeed unjustified and outdated; there are plenty of other voting-rights laws available to ensure that the right to vote is not violated. And indeed there is no shortage of lawsuits being filed. If plaintiffs can prove their case, they can and should win, but the point is that they should have to prove their case — a requirement the amendments would eliminate.

In many other important respects, too, the bill that has been drafted is bad legislation. For example, it does not protect all races equally from discrimination; it contains much that has nothing to do with the Supreme Court’s decision; and it itself violates the Constitution by using a “disparate impact” approach and prohibiting practices that are not actually racially discriminatory but only have racially disproportionate effects.

And despite the disingenuous claims of its proponents, the bill is also not really bipartisan. At Senate hearings last year, it was clear that no Republican would favor it, because it is designed to give a partisan advantage to the Left. There are still no Republican sponsors in the Senate, and only a handful of misguided Republican sponsors in the House.

Here’s a piece on this bad bill I wrote for National Review Online last year, just before those hearings; the last paragraph has links to a number of other pieces that spell out just how bad this bill is.

The Los Angeles Times published my letter making these points last week, by the way.

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The Washington Times reports that a high-school principal in Oak Park, Illinois, is stubbornly standing by his decision to hold an event for black students only, so that they could safely discuss race issues without the presence of white people. Principal Nathaniel Rouse hosted a “Black Lives Matter” event exclusively for black students last month. He says he hopes to have similar events for whites, Hispanics, and Asians, and then a school-wide event. 

So, the way to fight racism is to underscore racial differences by having segregated events premised on the inability of different racial groups to deal respectfully and honestly with each other — I get it.

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The U.S. Equal Employment Opportunity Commission has been on a well-deserved losing streak lately, and that streak continues now with a good decision by the U.S. Court of Appeals for the Fourth Circuit, discussed here. The case involves the EEOC’s disparate-impact challenge to a company’s use of criminal background checks.

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I’ve noted from time to time the misguided approach to civil-rights enforcement in school discipline by the Obama administration, namely its use of the “disparate impact” approach, equating racial disproportions to discrimination.  Recently there was an excellent article in the New York Post on the results of this nonsense — read it here

The particular agency at fault, by the way, if the Education Department’s Office for Civil Rights — which is the same agency for which the administration has requested a 31 percent budget increase!  Read all about that here

And — last point on this — even liberal Representative Joe Kennedy (D-Massachusetts) et al. were pushing for only a 5 percent increase.

Census Bureau rushes unconstitutional ballot demand

Usually my weekly emails to you are my own writing, but this week I'm going to send you an excellent column by Perry Pendley, head of the Mountain States Legal Foundation. And I think I have three good reasons for doing so. First, as I said, it's an excellent column, and it's even better because it draws on the fine work done by the Center for Equal Opportunity's chairman Linda Chavez, who has told Congress repeatedly that it should get rid of its offensive requirement that ballots be printed in foreign languages. Second, Mr. Pendley and his organization are longtime allies of the Center for Equal Opportunity, and we are delighted to be making common cause with him again on this issue. And, third, I've been on the road the last couple of weeks, speaking at several law schools and other venues, and relying of Perry here will make that week a little less hectic. Enjoy!


In mid-October, the Obama Administration, through the U.S. Census Bureau, put three states and 248 counties in 25 states on notice that the election materials they provide must be printed, not only in English, but also in 68 additional languages. The mandate is not new—its announcement is required upon completion of the decennial census; however, what is new is the speed with which it was issued after the 2010 Census. The Bush Administration published its Federal Register notice regarding the 2000 Census in 2002.

Cynics may suggest that the announcement has something to do with the 2012 elections, but the focus should be on the remarkable requirement that, in a country where English language fluency is necessary for citizenship, ballots must be in a variety of foreign languages and the insult that demand gives to the Constitution, as well as its public policy failings, including, that it: imposes a costly unfunded federal mandate in the middle of a recession; Balkanizes the body politic; and contributes to voting fraud. Little wonder that, with the Census Bureau’s announcement, many are asking, “Why are we doing this?”

In 1975, Congress amended the Voting Rights Act of 1965 to require that ballots be prepared in languages other than English in jurisdictions where more than 5 percent of the voting-age citizens are members of a particular language minority, if their illiteracy rate is higher than the national illiteracy rate. The reason: “unequal educational opportunities which language minorities have suffered at the hands of State and local officials.” Although the Congressional Record references “evidence,” it cites only statements by three Representatives who supported the amendment. Enacted as “temporary,” Section 203 was extended: in 1982 for 10 years, in 1992 for 15 years, and in 2006 for 25 years.

Even if Section 203’s “evidence” were true in 1975, which is doubtful, Congress may not interfere constitutionally with the right of State and local officials to conduct elections by imposing a prophylactic remedy—non-English ballots—unless it has evidence of discrimination and enacts a remedy that is “congruent and proportional,” in the words of the U.S. Supreme Court, to the offense. Because “disparity” does not mean “discrimination,” let alone the intentional discrimination by State and local officials that allows extra-constitutional action by Congress, Section 203 is unconstitutional, if not in 1975, then certainly in 2011, given Congress’s rote reauthorization of the provision over the decades.

Experts such as Center for Equal Opportunity Chairman Linda Chavez argue that, even in 1975, lack of English language fluency was likely not the result of discrimination but factors such as growing up in a home where English is not spoken enough. Furthermore, how likely is it that the English language deficiencies Congress “found” in 1975 exist four decades later? If not likely, why are hundreds of jurisdictions still covered? Because the Census Bureau labels those who say they speak English “Well” (as opposed to “Very Well”) with those who say “Not Well” or “Not at All” as having “Limited English Proficiency” (LEP) and covered by Section 203.

That citizens do not need non-English ballots was demonstrated by a 1986 General Accounting Office (GAO) study, which found that over half of the reporting jurisdictions said no one used the bilingual materials. In 1996, a Yuba County (California) official reported that, in 16 years, only one person requested bilingual materials, yet the county spent $30,000 a year preparing them. In May 2011, Cuyahoga County (Ohio) spent $100,000 for bilingual ballots in a “light” primary season. Bilingual ballots create another concern for election officials: their ability to prevent fraud. As Ms. Chavez puts it, the only people who need bilingual ballots are non-citizens who want to vote.

Sadly, this costly, useless federal mandate, which undermines national unity, facilitates voting fraud, and violates the Constitution, is likely with us forever. That is, unless a courageous election official asks the Supreme Court to strike it down.

A Conservative Celebration of the 1964 Civil Rights Act

It’s being widely noted that this week, on July 2, we’ll be celebrating the fiftieth anniversary of the signing of the 1964 Civil Rights Act.  Below are excerpts from my discussion, posted earlier this month on the Liberty Forum website, of why “the approach taken in the bill was a conservative one, that it ought to be updated to strengthen and clarify that essentially conservative approach, and that it is the Left that has strayed from the Act’s principles and that now wants to repudiate them.”

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The Civil Rights Act of 1964 banned much government and private-sector discrimination, mostly on the basis of race and ethnicity (“color” was specified in addition to “race,” and “national origin” was the term used instead of the now-more-common “ethnicity”), but often on the basis of religion, too, and sometimes on the basis of sex as well.

There were eleven titles in the 1964 Act. The key ones were Title II (public accommodations), IV (school desegregation), VI (federally funded programs), and VII (employment). The others were I (voting), III (public facilities), V (expanding the U.S. Commission on Civil Rights), VIII (compilation of voting data), IX (facilitating intervention by the Justice Department and federal jurisdiction in some trials), X (establishing the Community Relations Service), and XI (regarding criminal contempt).

A Restricted Measure

The 1964 Civil Rights Act was ambitious, but it was not untethered, either in the areas it covered or in the kinds of discrimination it banned. It did not, to give just one example, require wedding cakes and photographs to be made for same-sex marriages. And the relief that it made available was carefully limited, too. There was no provision for the award of comprehensive, let alone punitive, damages in the original statute, for example.

Some libertarians might still object to this bill. But no less a libertarian than Richard Epstein said that, if he had to make an up-or-down decision, he would have voted for it in 1964. The Act addressed both public and private discrimination; and, in some areas regulated by the Act (for example, public accommodations) public and private discrimination had become hopelessly intertwined.

Conservatives, of course, treasure Richard Epstein but they adore Edmund Burke, so the more salient question for them is whether Burke would have voted for the Act. I think he would have. The Act was certainly a reform, but then Burke was a reformer, and these reforms were actually in line with fundamental American precepts – with the “American creed,” as Gunnar Myrdal put it, and E pluribus unum, our original motto. The rhetoric of the Civil Rights Movement, it is often now forgotten, stressed patriotism and was unabashedly religious; it is not surprising that it is now conservatives who are most likely to quote Dr. Martin Luther King’s dream of children being judged by the content of their character rather than the color of their skin, emphasizing both the “character” part and the “color” part. This spirit is in the Act, even if some liberty is sacrificed to it.

Conservatives want society to be cohesive, and it is hard for a multiracial and multiethnic society to be cohesive if it is endorses irrational and unfair discrimination on the basis of skin color and national origin. Such a society cannot be meritocratic or honor a natural aristocracy, let alone the self-evident truth that all men are created equal.

A higher percentage of Republicans than Democrats in both houses voted for the 1964 Civil Rights Act. Yes, in some respects the Act diminished the freedom of companies, but it’s at least arguable that the Act actually made markets freer and more efficient and improved the environment for business. I’ll conclude this discussion on a point related to this, noting that when I went from being a deputy in the Justice Department’s civil rights division to being a deputy in its environment and natural resources division, I was immediately struck by how much shorter and clearer the statutes were for the former than the latter. A low bar, but still.

The Turn to Federally Sponsored Race Discrimination

It is astonishing, in light of all the Act achieved, that the federal government has at the Left’s bidding since 1964 come to endorse a great deal of racial discrimination. A 2011 report by the Congressional Research Service catalogued literally hundreds of government programs that included some form of racial discrimination.

If Congress wants to do something about it, and drastically reduce the amount of discrimination that goes on, it should look carefully at the bills that the Center for Equal Opportunity and the Heritage Foundation recently drafted. (The bills are described in detail here.)

The most straightforward way Congress could act is by banning racial preferences in all federally funded programs — public employment, education, contracting, etc. — and in federal civil-rights protections. Federal law — including the words of the 1964 Civil Rights Act that courts and bureaucrats have mangled — frequently states that the government may not discriminate based on race, but plenty of other federal statutes explicitly do so.

Likewise, the “disparate impact” approach to civil-rights enforcement results in race-based preferential treatment — often intentionally so. Eliminating such claims is therefore another way to help curb the use of racial and ethnic preferences, and our second model bill has this aim.

In brief, an action that has racially disproportionate results is considered to have an illegal disparate impact, even if the action is neutral on its face, in its intent, and in its application. This is not racial discrimination by any reasonable definition, and it forces employers, landlords, schools, and others either to discard legitimate criteria and selection procedures (for example, a physical or written test for firefighters or police officers); or to avoid racial disproportions by hiring, leasing, or disciplining (or designing tests and other selection criteria) with an eye to skin color; or both. The Obama administration loves this approach, alas.

Fortunately, most civil-rights laws – again, including the 1964 Civil Rights Act, as originally written – have no such “disparate impact” provisions; rather, they prohibit actual discrimination (“disparate treatment”). The laws were expanded, however, through agency interpretation and activist court rulings to include “disparate impact.”  Again, the Left sacrificed the Act’s guarantee of equal opportunity in order to achieve equal results instead.

Bell Curve Consequences

And finally — having addressed conservatives, libertarians, and liberals — let me also say a word to those who ask: What if it turns out that there are genetic differences in cognitive abilities among different groups?

The issue whether there are racial differences in IQ is, it seems to me, of an intricacy disproportionate to its interest, at least for those of us who think that sound law and policy require judging people as individuals, without regard to race. In short, even if such genetic differences can be proven to exist, it would not provide a convincing rationale to refrain from re-instilling the sound law and policy of requiring citizens to be judged as individuals, without regard to race. Were science to prove somehow that the average white’s IQ is 12.03 higher than the average black’s, there will still be plenty of blacks smarter than plenty of whites, and plenty of mixed blacks/whites/others.

In the civil-rights context, the science here is important only to those on the far Right who would defend racial discrimination, and — especially — those on the far Left who insist that, since culture of course also cannot be blamed for racial disparities, they must all be a result of discrimination. The quota mongers have to deny unequal distributions of talent, interests, and ability, since their whole approach hinges on an assumption that proportionate representation is what a meritocratic system, sans discrimination, would produce. It is only to people who want to make racial generalizations and to people who believe that, absent discrimination, every university and workplace would “look like America” that race and IQ is of great importance.

I, on the other hand, am happy to be agnostic: Just choose the best qualified people, and don’t worry about getting your numbers right. For us colorblind conservatives, who think people should be treated as individuals regardless of race and who don’t think that racial disparity equals racial discrimination, the connection between race and IQ doesn’t matter in this arena. The 1964 Civil Rights Act, as originally written and understood, makes sense for a multiracial and multiethnic society, whether or not there are genetic differences among different groups.


Discrimination on the basis of race and ethnicity is inconsistent with the 1964 Civil Rights Act, unconstitutional when the government imposes it, and a bad idea, yet the practice is now rife throughout federal law and government programs. Jobs should go to the most qualified individuals; contracts should be awarded to the lowest bidders who are qualified; the students who are most likely to excel academically should be admitted to taxpayer-funded universities; and all should be protected equally from discrimination.

Felons and the Vote

Last week, a perennial bill was reintroduced in Congress, which would prohibit the states from barring felons from voting once they were no longer in prison.  That is, it would require states to let felons vote.

I’ve testified against this bill before Congress a couple of times in the past, and recently co-authored a paper on the subject that you can read here.  So I thought I would take the occasion of the bill’s reintroduction last week to note all that, and also to share with you here a shorter piece I did on this topic that appeared last month in the online publication Both Sides:

It makes sense that felons should lose their right to vote. You don’t have a right to make the laws if you aren’t willing to follow them yourself. To participate in self-government, you must be willing to accept the rule of law.

We don’t let everyone vote – not children, not noncitizens, not the mentally incompetent. There are certain minimum and objective standards of trustworthiness, responsibility, and commitment to our laws that we require before people are entrusted with a role in the solemn enterprise of self-government. Those who have committed serious crimes against their fellow citizens don’t meet those standards.

This doesn’t mean that the right to vote should never be restored to felons, but the decision to restore the right to vote should not be made automatically. It should be made carefully, on a case-by-case basis, weighing the seriousness of the crime, how long ago it was committed, and whether there is a pattern of crime.

If a felon shows that he or she really has turned over a new leaf and is no longer a threat to the community, but is giving something back to it, then it makes sense to restore the right to vote to that individual. A formal ceremony, with a federal judge and the felon’s family and friends present, would be appropriate and meaningful then.

But it should not be done automatically. The restoration of the right to vote then is not meaningful, and it is not wise. After all, two out of three felons who are released from prison commit another crime, and it is ridiculous to assert that the reason they do so is that they can’t vote.

The other arguments made in favor of felons voting are also unpersuasive.

For example, it’s frequently asserted that, once he’s been released from prison, a felon has “paid his debt to society.” It’s true that he’s paid enough of his debt to be allowed out of prison, but that doesn’t mean there aren’t continuing consequences. We don’t let felons possess firearms or serve on juries, for instance. By the way, most of the groups that want felons to be able to vote want them to be able to vote when they are still in prison, so this “paid their debt to society” argument is a red herring.

It’s also often asserted that felon disenfranchisement laws are “racist.” That’s not true either. To be sure, they may have a disproportionate impact on some racial groups, because at any point in time there are always going be some groups that statistically commit more crimes than others, but that doesn’t make the laws racist – just as the fact that more crimes are committed by men doesn’t make criminal laws sexist. The people whose voting rights will be diluted the most if criminals are allowed to vote are the law-abiding people in high-crime areas, who are themselves disproportionately black and Latino.

As a historical matter, likewise, it’s not true that these laws have racist roots. While a few southern states passed such laws a hundred years ago, those statutes are no longer on the books, and they would be unconstitutional if they were. Today’s laws have their roots in ancient Greece and Rome, came to the American colonies from England, and are found in nearly every state in the country, where they were adopted without any racist intent at all and have never been applied discriminatorily.

If there were persuasive evidence that these laws are racially discriminatory, then there are plenty of well-funded organizations – starting with the U.S. Department of Justice – that would be eager to bring lawsuits against them. The fact that such lawsuits are not being brought shows that the evidence of racial discrimination is just not there.

The Supreme Court has ruled that as a general matter these laws do not violate the Constitution, and indeed the Constitution itself contains language approving of felon disenfranchisement. Similarly, the history of the Voting Rights Act makes clear that it was not intended to require letting criminals vote.

Finally, remember again that the people who are the victims of crime are themselves disproportionately poor and minority. It does them no good to empower criminals; rather, it serves them, the rest of society, and indeed felons themselves best if we create incentives for individuals to show they have turned over a new leaf before they are re-empowered. Automatic felon re-enfranchisement sends a bad message: We do not consider criminal behavior such a serious matter that the right to vote should be denied because of it.

People can be forgiven, but that does not mean there aren’t consequences for wrongdoing. And requiring evidence of repentance before easing those consequences makes perfect sense.

Hillary Clinton’s Voting-Rights Speech

Here’s a column by me recently posted on National Review Online:

Looking forward to her run for president in 2016 and in an effort to bolster her bona fides with key parts of the Democratic base, Hillary Clinton gave a speech earlier last week on voting rights. In it she made two points, both wrong.

Her first claim was that the Supreme Court erred in its ruling in Shelby County v. Holder, in which it struck down the coverage formula that is used for Section 5 of the Voting Rights Act. That formula is used to determine which state and local jurisdictions have to go through the extraordinary and constitutionally dubious process of getting advance approval from the federal government whenever they make any change in a voting-related practice or procedure. 

The principal use of Section 5 has been to mandate racially gerrymandered and segregated voting districts, which is hardly a noble end, and indeed is flatly inconsistent with the ideals of the Civil Rights Movement.  And the formula is based on data from elections in the Sixties and early Seventies, with Congress refusing to update it when it reauthorized Section 5 in 2006 (had it done so, no state except perhaps Hawaii (!) would have been covered). Congress, moreover, was warned by the Court in 2009 about the problems with its approach, and did nothing about it. The Court’s decision, then, was perfectly reasonable.

Mrs. Clinton’s second claim was that voter-ID laws will, as a result of the Court’s action, be adopted by states, and that the antifraud justification for these laws is phony and the real motivation is to keep racial minorities and others from voting. This claim is unpersuasive for a number of reasons. 

To begin with, voter fraud is hardly a chimera, as John Fund and Hans von Spakovsky, among others, have persuasively documented and as the Supreme Court has recognized in upholding a voter-ID law. The lead opinion in that decision, by the way, was written by a liberal justice, John Paul Stevens, who — being from Chicago — knew that there actually is such a thing as voter fraud.

What’s more, if a state did pass or apply a voter-ID law with racial intent, there are plenty of other provisions in the Voting Rights Act that can be used to prevent such discrimination — provided, of course, the discrimination can actually be proved, in the same way that any other claim of racial discrimination (in employment, housing, etc.) must be proved. For example, a recently enacted law in North Carolina is being challenged; I doubt that the challenge is meritorious, but the point is that nothing in the Supreme Court’s Shelby County decision will prevent justice from being done there, or in Texas, or anywhere else.

This month will mark the 50th anniversary of the 1963 March on Washington that culminated in Martin Luther King, Jr.’s “I Have a Dream” speech. When one observes the gap between today’s racial rhetoric and our racial reality in 2013, it’s hard to know whether to laugh or cry. 

Secretary Clinton’s speech is typical of the rhetoric we are hearing and which will build to crescendo later this month, with a refusal to let go of the race card, whether the context is alleged racial profiling, criminal sentencing, home loans, criminal background checks by employers, school discipline, or voting rights. 

The reality is quite different. Racism (among all racial groups, by the way) can still be found and always will be, but it is nothing like it was in 1863 or 1963, and indeed it is legally proscribed in practically any public transaction, as well as being socially unacceptable. Opportunities are boundless for all, regardless of skin color, in any walk of life. Just ask our president. It’s not just that the glass is half full: Our cup runneth over.

Sad to say, the principal reason for the remaining racial disparities — and, consequently, for the racism that still exists — is the implosion of the black family. The resulting “tangle of pathology” was identified by Daniel Patrick Moynihan just two years after Dr. King spoke and when it was less virulent; believing that working and studying hard is “acting white” would have insulted Dr. King; I doubt he would have thought much of gangsta culture and its liberal enablers either, since he expected his children to be “judged by the content of their character.” It would be nice if Hillary Clinton gave a speech about all that, but I’m not holding my breath.

Felon Voting and Congress

The Heritage Foundation has just published a paper that I co-wrote on legislative efforts to re-enfranchise felons.  In this email, I’ve excerpted the second part of the paper (along with the paper’s “Abstract”).  This part of the paper argues that automatic re-enfranchisement of felons is unwise as a matter of policy

But the paper begins by demonstrating in lawyerly detail that, whatever you think as a matter of policy, the Constitution clearly commits this issue to the states.  So it is disturbing that Sen. Rand Paul, for example, who claims to be a great champion of the Constitution and its limitations on federal power, is once again pushing a federal bill along with Sen. Harry Reid in this area; the first part of our paper addresses that bill in particular and its blatant unconstitutionality.


Both the original Constitution and the Fourteenth Amendment specifically delegate to the states the right to determine the qualifications of voters and to disqualify anyone who participates “in rebellion, or other crime.” Congress cannot override the Constitution through legislation and has no authority to restore the voting rights of felons for federal elections. The American people and their freely elected state representatives must make their own decisions in their own states about when felons should have their civil rights restored, including the right to vote. Requiring a waiting period and an application process is fair and reasonable given the high recidivism rate among felons. Any legislation passed by Congress taking away that power is both unconstitutional and unwise public policy.

Policy Arguments in Favor of Felon Disenfranchisement

Those who are not willing to follow the law cannot claim a right to make the law for everyone else. And when an individual votes, he or she is indeed either making the law—either directly in a ballot initiative or referendum or indirectly by choosing lawmakers—or deciding who will enforce the law by choosing local prosecutors, sheriffs, and judges.

Not everyone in the United States may vote: Thus, children, noncitizens, and those who are adjudicated to be mentally incompetent are not allowed to vote. This nation maintains certain minimum, objective standards of responsibility, trustworthiness, and commitment to our laws for those who are allowed to participate in the solemn enterprise of self-government. It is not unreasonable to suppose that those who, regardless of their race, have committed serious crimes against their fellow citizens may also be presumed to lack this responsibility, trustworthiness, and commitment to America’s laws.

Is it too much to demand that those who would make the laws for others—who would participate in self-government—be willing to follow those laws themselves? …

Thus, even if Congress had the constitutional authority to pass this legislation, there are sound public policy reasons why it should not do so. …

Answering the Policy Arguments Against Felon Disenfranchisement

The policy arguments in favor of automatically restoring the rights of all felons to vote are unpersuasive.

“We let everyone else vote.” Again, this is simply not true. America also denies the vote to children, noncitizens, and the mentally incompetent because they, like felons, fail to meet the objective, minimal standards of responsibility, trustworthiness, and commitment to our laws that we require of those who want to participate in the government not only of themselves, but also of their fellow Americans.

“Once released from prison, a felon has paid his debt to society and is entitled to the full rights of citizenship.” This rationale would apply only to felons who are no longer in prison, of course, and might not apply with respect to felons on parole or probation, but even for these “former” felons, the argument is not persuasive. While serving a sentence discharges a felon’s “debt to society” in the sense that his basic right to live in society is restored, serving a sentence does not require society to forget what he has done or bar society from making reasonable judgments based on his past crimes.

For example, as noted, federal law prohibits felons from possessing firearms or serving on juries, which does not seem unreasonable. In fact, as also previously noted, there is a whole range of “civil disabilities” (known as collateral consequences) for felons after their release from prison that apply as a result of federal and state law, listed in a 144-page binder (plus two appendices) published by the U.S. Justice Department’s Office of the Pardon Attorney. Society is not required—nor should it be required—to ignore someone’s criminal record once he gets out of prison.

 “These laws have a disproportionate racial impact.” Undoubtedly, the reason that there is heightened interest in this subject is that a large percentage of felons are African Americans, although in absolute numbers, more whites are affected by felon disenfranchisement than blacks. That is because whites represent a majority of the individuals in state and federal prisons, according to the U.S. Justice Department, and have held that majority since Justice began keeping such records in 1926.

The racial impact of these laws is irrelevant as a constitutional matter. It should also be irrelevant as a matter of policy. Legislators should determine, based on non-racial considerations, what the qualifications or disqualifications for voting are and then let the chips fall where they may. In The Souls of Black Folk, W.E.B. Du Bois wrote: “Draw lines of crime, of incompetency, of vice, as tightly and uncompromisingly as you will, for these things must be proscribed; but a color-line not only does not accomplish this purpose, but thwarts it.” As a federal court said in an unsuccessful lawsuit against Florida’s felon voting law:

[Black ex-felons had] not been denied the right to vote because of an immutable characteristic but because of their own criminal acts. This is also true of the non-African American class members. Thus, it is not racial discrimination that deprives felons, black or white, of their right to vote but their own decision to commit an act for which they assume the risks of detection and punishment.

The fact that these statutes disproportionately disenfranchise men and young people is not cited as a reason for changing them—as “sexist” or “ageist”—nor does it matter that some racial or ethnic groups may be more affected than others. That criminals are “overrepresented” in some groups at some point in time and “underrepresented” in others is no reason to change the laws. This will probably always be the case, with the groups changing over time and with the country’s demography. If large numbers of young people, black people, or males are committing crimes, then our efforts should be focused on solving those problems.

The answer to that problem is not to increase the political power of criminals.

Much has been made of the high percentage of criminals—and, thus, disenfranchised people—in some communities, but the fact that the effects of disenfranchisement may be concentrated in particular neighborhoods is actually an argument in the laws’ favor. If these laws did not exist, there would be a real danger of creating an anti–law enforcement voting bloc in local municipal elections, for example, which is hardly in the interests of a neighborhood’s law-abiding citizens who are victimized by such felons.

Indeed, the people whose votes will be diluted the most if criminals are allowed to vote will be law-abiding people in high-crime areas—people who are themselves often disproportionately poor and minority. Liberal civil-rights groups lobbying against felon disenfranchisement seem to have less concern for those victims.

“We should welcome felons back into the community.” Because the racial and other arguments are so unpersuasive, it is more and more frequently argued that re-enfranchising felons is a good way to reintegrate them into society. Attorney General Eric Holder has even claimed that felon disenfranchisement laws promote recidivism. As former Attorney General Michael Mukasey has pointed out, however, that claim, which derives from a study in Florida, is flawed:

Florida has had, and indeed has broadened, a system that requires felons to go through an application process before their voting rights are restored. Obviously, those who are motivated to navigate such a process self-select as a group less likely to repeat their crimes. Suggesting that the automatic restoration of voting rights to all felons would lower recidivism is rather like suggesting that we can raise the incomes of all college students if we automatically grant them a college degree—because statistics show that people with college degrees have higher incomes than those without them.

Reintegration of felons into the community is an important goal, and this paper recognizes that restoration of voting rights can be a part of that process. Conversely, it is also important not to suggest to felons that it is hopeless for them to want to rejoin that community.

But restoration of voting rights should be done carefully and on a case-by-case basis once the felon can establish in fact that he has turned over a new leaf. When that has been shown, then holding a ceremony—rather like a naturalization ceremony—in which the felon’s voting rights are fully restored would be moving and meaningful. Restoration, however, should not be automatic, because the change of heart cannot be presumed. After all, the unfortunate truth is that most people who walk out of prison will be walking back in eventually.

Automatic felon re-enfranchisement sends a bad message: It says that Americans do not consider criminal behavior so serious that the right to vote should be denied because of it. Not allowing criminals to vote is also a form of punishment and a method of stigmatization that tells criminals that committing a serious crime puts them outside the circle of responsible citizens. Being readmitted to the circle should not be automatic.
While it is true that a disproportionate number of African Americans are being disenfranchised for committing serious crimes, their victims also are disproportionately black. The logical focus of an organization like the NAACP should be on discouraging the commission of such crimes rather than minimizing their consequences.


Congress does not have the power to force states to allow felons to vote in federal elections. The Constitution, including the Fourteenth Amendment, specifically delegates to the states the right to determine the qualifications of voters and to disqualify anyone who participates “in rebellion, or other crime.” Congress cannot override the Constitution through legislation and has no authority to restore the voting rights of felons for federal elections.

Thus, the American people and their freely elected state representatives must make their own decisions in their own states on when felons should have their civil rights restored. This includes the right to vote. Requiring a waiting period and an application process is fair and reasonable given the high recidivism rate found among felons. Any legislation passed by Congress to take away that power is both unconstitutional and unwise public policy.