Should the casualties of the drug war be allowed to vote?
The United States Court of Appeals for the 2nd Circuit yesterday granted rehearing en banc in a case with potentially important implications for the war on drugs. The plaintiff, a state prisoner, asserts that a New York law disenfranchising currently incarcerated felons and parolees violates Section II of the Voting Rights Act. (See 42 U.S.C. § 1973.) A three-judge panel of the court disagreed and upheld New York's law.
According to the panel, "Because the Supreme Court has instructed us that statutes should not be construed to alter the constitutional balance between the states and the federal government unless Congress makes its intent to do so unmistakably clear, we will not construe the Voting Rights Act to extend to New York’s felon disenfranchisement statute."
It seems unlikely that the full appeals court will reach a different conclusion. But in any event, the case is part of a wide assault, both legal and political, on disenfrachisement statutes, which, according to The Sentencing Project, exist in one form or another in almost all states and "significantly [affect] the political voice of many American communities."
New York is one of 48 states to prohibit inmates from voting while incarcerated for a felony offense. Thirty-five states prohibit parolees from voting, thirty-one prohibit probationers from voting and seven states deny the franchise even to ex-offenders who have served their sentences.
"The United States is the only democracy," according to the Drug Policy Alliance, "in which people who have served their sentences can still lose their right to vote." Whether temporarily or permanently, roughly "4.7 million people in the U.S. cannot vote because of a felony conviction." Many of these people have lost their right to vote on account of the drug war. Of the 1.4 million people now in U.S. prisons, half a million -- 36% -- are there on drug-related offenses. (Among only federal prisoners, it's 56%.)
Would allowing these folks to vote change the politics of the drug war? Specifically, might their votes create an actual constituency in opposition to it? We have several constituencies in favor of the drug war: city leaders whose local budgets are swollen on account of it; police officers who get to dress like storm troopers because of it; prison guard unions whose membership depends on it; and prison construction companies who make millions keeping up with it. But other than liberty-minded citizens who oppose the drug war on principle but don't organize around it, there is no large constituency in America saying, "The hell with this."
Of course, even if given the right to do so, not all prisoners (or parolees and probationers) would vote. (In fact, I suspect most of them wouldn't.) And even among those who did, not all would make drug policy their top concern anymore than all gay voters make same-sex marriage theirs. Still, as the casualties of the drug war grow in number, it seems likely that if they were allowed to vote, our collective enthusiasm for this insipid endeavor might dampen, at least a little.