Category: Law

Stealing Votes from Prisoners

With the midterm elections fast approaching, a little-known and unfortunate quirk in the American electoral system merits attention. It may surprise you to learn that prisoners are counted as residents of whatever town, county, and-or state in which they are imprisoned. And since most states do not permit prisoners to vote, counting prisoners in this way artificially inflates the voting power of people who happen to live close to prisons. Upon incarceration, an American adult isnt merely stripped of the right to vote – his vote is taken from him and given, collectively, to people who share the prison’s political subdivision.

This policy reduces the electoral representation of cities and sends it out to rural areas where large prisons are most commonly situated. In some cases, the residents of sparsely populated areas have double the voting power of other voters – courtesy of the incarcerated, who havent even necessarily been found guilty!

This policy is worse than was the three-fifths compromise, itself a high-water mark for cynicism. While slavery was still legal in the US south, southerners wanted to have their pecan pie and eat it too. With respect to civil and political rights, they didnt want to regard blacks as human beings; but in order to gain more representation in Congress and more votes in the electoral college for presidential elections, southern politicians needed to maximize their headcount. And so for purposes of the US Census, if the South had its way, lawsy mercy, yes: blacks are people too!

North and South struck an unseemly compromise, which permanently mars the US Constitution: a slave was to be treated as three-fifths of a human being for purposes of apportionment. Of course slaves werent allowed to vote – the votes their bodies accrued went, perversely, to free white southern voters, who consequentially got 30% more Congressman and 30% more electors in the Electoral College.

Though their absolute numbers are smaller, US electoral practices with respect to prisoners are even more unjust. They are denied the right to vote in 48 of 50 states. (Maine and Vermont are the exceptions.) And yet they are counted as full-fledged residents of their place of incarceration Рliterally transferring their voting power, intact, to others. Since the federal prison system often shifts inmates across state lines, this practice serves to arbitrarily transfer voting power from states with high crime rates to states with large prison populations.

This practice isnt confined to the usual backward states. In New York City, prisoners incarcerated on Rikers Island are counted as residents of Astoria, inflating the voting power of that neighborhood’s residents on the City Council. Similar distortions are seen in municipal governing bodies all across New York State.

It was only recently that college students were finally treated as residents where they attend college, to allow them to participate in the politics of the place they spend most of their time. By a similar logic, prisoners who are allowed to vote should either be counted as residents of their place of incarceration, or of their last place residence. But for the 99% of US prisoners who are not allowed to vote, their voting power should not be arbitrarily bestowed on the people who happen to live near the prison. Instead, it should remain in the community where the prisoner last resided. Even better, if states insist on denying the right to vote to prisoners and felons, their representation should be accordingly diminished for purposes of federal elections.



How Jim Crow Holds Florida

In denying the right to vote to criminals, even after they have been released from prison, the US is an outlier with respect to much of the world. Let alone allowing ex-cons to vote, numerous countries permit inmates to vote from prison, including Australia, Canada, the Czech Republic, Denmark, Finland, France, Germany, Israel, Japan, Netherlands, Norway, Poland, Romania, Serbia and Sweden. Among US states, only Maine and Vermont let everyone vote, including prisoners.

With America’s skyrocketing prison population, felony disenfranchisement affects an increasing fraction of the US population. While it denied suffrage to about 1 million Americans the in the early 70s, 3 million were disenfranchised by the mid-90s, and nearly 6 million are disenfranchised today. Across much of the south, upwards of 7% of the adult population cannot vote because of past convictions.

Relative to the irrevocable, lifetime disenfranchisement that the Constitution permits (for the moment), states are generally much more liberal about allowing convicted criminals to vote after they’ve completed their sentences, if not parole or probation. As usual, it’s regressive southern states who are the most unforgiving, with a few effectively disenfranchising convicted criminals forever.

Disenfranchisement disproportionately affects blacks. Across the country, about 8% of blacks, and some 13% of black men cannot vote – compared to about 2% of all other adults. Florida is the worst case of all. In 2011, its GOP governor gave the state the most extreme felony disenfranchisement law in the country. With just 6% of the US population, Florida is home to 25% of all of America’s disenfranchised. 20% of all blacks in Florida – and about 35% of all black men – cannot vote. One neednt wonder at the GOP’s zeal for felony disenfranchisement. In its absence, Florida would not be a swing state – it would be solidly democratic.

US AG Eric Holder has been pressing states to reform these outmoded laws – many of which date back to Reconstruction, a living remnant of the Jim Crow south, whose purpose was, then and now, to suppress the black vote. Felony disenfranchisement is an ugly anachronism, with no place in a modern law or governance.



The Constitutionality of Felony Disenfranchisement:

In the aftermath of the US Civil War, with southern states excluded from Congress and yet subject to military rule, northern states changed the Constitution to protect its citizens’ voting rights – somewhat. The 15th amendment, which became law in 1870, is short and simple:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

18 months previously, northern states had ratified the 14th amendment. Section 2 is a fine bit of 19th century prose:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

It sprawlingly ties together many areas of law, including apportionment, the legal status of “Indians”, federal and state elections, voting rights and criminal disenfranchisement. That’s a good thing, because it mutually binds, one to another, numerous rights, capacities and effects, forcing courts to interpret them with respect to one another. The bad of it is that it implicitly allows for the unfettered disenfranchisement of convicted criminals. The 15th amendment meanwhile only prevents states from denying the right to vote for 3 specific reasons – leaving other bases for disenfranchisement valid, including not just crime, but gender.

There is hope. See:

n.b. The Reconstruction amendments were drafted, voted up by 2/3 majorities in both houses, and passed on to the states for ratification while southern states had no representation in Congress, were yet subject to military rule, and were effectively territories – not states – governed from Washington, D.C. Their readmission to the Union – and with it, the restoration of their Congressional delegations – was conditioned on their ratification of the these amendments.

Beg, Borrow and Sue

Some beggars wouldnt merely be choosers – they would be plaintiffs. In 2008, AIG was flat on its back, about to take its last breath before going into the corporate afterlife. (The Supreme Court tells us that corporations can hold religious beliefs – so who’s to say their souls dont live on beyond Chapter 11….) AIG’s liabilities outstripped its assets by tens of billions of dollars. Insolvent, AIG would have had little choice but to be dissolved via bankruptcy, its assets liquidated to pay creditors, who would have received pennies on each dollar of debt. Despite AIG’s thousand-dollar share price on the eve of the financial meltdown, its shareholders would have lost their entire investment, their shares zeroed out, without a cent left over.

You’d think those shareholders would be mighty grateful to the US government, which bailed out AIG to the tune of $182 billion. Though AIG’s share-price was pummeled, it’s still around fifty bucks today, which is fifty bucks more than it’d be without the bailout. But some of those shareholders are not grateful – and they are suing the US government because, in their opinion, the bailout AIG received wasnt generous enough.

It’s true that while AIG’s creditors got a sweetheart deal, AIG itself did not. But it wasnt left to die, as was Lehman Brothers, which on September 15th, 2008 departed this world for the dark night of Chapter 11, never to return. Lehman had been the nation’s 4th largest investment bank, and its destruction was a body blow to an already-teetering US economy. The federal government learned its lesson, and resolved to save AIG – the world’s largest insurance company – but it would do so on terms onerous enough to serve as fair warning to other financial firms. The fear was that if AIG’s deal was too good, others might be tempted to make similarly risky bets, with the expectation that the government would bail them out if things didnt pan out. Instead of a golden parachute, AIG got a no-frills heimlich maneuver – but it’s not like the US government owed it to AIG to do anything at all.

AIG itself is not a party to the lawsuit. As AIG CEO Robert Benmosche said in an interview, “It’s not acceptable socially for AIG to have taken this money and think that we could come back and sue the government because [they] made too much money on the deal.” But not all AIG shareholders share Benmosche’s qualms. The suit is led by former AIG CEO Maurice Greenberg, a one-time billionaire, now scraping by on assets worth a paltry $300 million. For Greenberg and his co-plaintiffs, the $182 billion bailout they received from US taxpayers wasnt charity enough – they have demanded that US taxpayers cough up an additional $50 billion.

To grasp the enormity of AIG’s bailout, it helps to compare it to other government spending programs. For example, AIG’s bailout is enough to cover all US government expenditures on welfare (TANF) and food stamps (SNAP) – combinedfor two years! The $50 billion that AIG shareholders are suing for would by itself nearly cover the annual cost of the EITC program (a subsidy for the working poor).

Beyond the inanity of conservative talking points, these figures reveal America’s true takers. While millions of working American families receive a pittance in public support, wealthy AIG investors have had their trough filled by US taxpayers – which wont stop them from suing till that trough overflows.




The Field Guide is off Monday for Columbus Day – we’ll be back with new material on Wednesday, October 15th.

A Supreme Punt

The US Supreme Court kicked the can down the road on Monday, refusing to hear appeals on overturned gay marriage bans from no fewer than five states. In the short term, that’s good news for the people of Virginia, Oklahoma, Wisconsin, Indiana and, with delicious irony, Utah (which, through the Mormon Church, has become an exporter of anti-gay bigotry to the country and the world), where gay marriage has resumed. And it’s good news for people in 11 other states under the jurisdiction of US Circuit Courts of Appeal that have struck gay marriage bans down. All told, the Court’s denial should make gay marriage legal in 30 of 50 US states, plus DC. But one should be careful in interpreting the significance of the Court’s (non)move.

Imminently and ominously, a decision on another gay marriage ban is expected from the 6th Circuit. In Cincinnati, a three judge panel comprised by two Republican appointees and one Democrat may be the first to uphold such a ban. It’s possible that the Supreme Court’s conservatives are waiting on such a decision before taking up the issue.

CJ Roberts has been occasionally cautious in his activism. Though his Court issued extremist decisions on the Second Amendment and campaign finance, its decision upholding the ACA, which Roberts himself penned, suggests an upper limit to his audacity. If every US Circuit Court strikes down bans on gay marriage – and to date, every Circuit Court faced with the issue has done so – a Supreme Court decision going the other way would be conspicuously activist. But if just one Circuit Court upholds a ban, the Supreme Court would be expected to step in, in its traditional role of resolving differences among the Circuits.

Given that it takes four votes for the Supreme Court to take a case, it’s reasonable to speculate that at least two of the Court’s five conservatives would prefer to postpone their decision for the time being – perhaps until one Circuit Court provides them with a fig leaf for their activism. As for the Court’s four liberals, while they might relish the opportunity to strike down gay marriage bans nationwide, once and for all, they may be concerned about securing a fifth vote (which would come most likely from Justice Kennedy), and in the meantime can watch and wait as gay marriage spreads across the US without their assistance.

Judge Martha Craig Daughtrey, the sole Democratic appointee on the the three-judge panel hearing the Cincinnati case, alluded to the women’s suffrage movement during oral argument. Responding to the suggestion of Ohio’s solicitor general that gay marriage activists should focus their efforts on the political process and state legislatures, instead of on federal courts, Judge Daughtrey noted that nearly a century of politicking failed to secure the right to vote to all women; that in the end, via the 19th amendment, three-fourths of the states forced a recalcitrant one-fourth who remained opposed. Daughtrey might also have pointed out that 45 years elapsed between the Supreme Court’s 1875 rejection of a woman’s Constitutional right to vote, and the19th amendment’s 1920 ratification. To gain some insight on the pace of progress across the nation’s backwards belt, consider that Georgia, North Carolina, South Carolina and Louisiana didnt ratify till after 1970; and Mississippi, in Orwellian fashion, only did so in 1984.

Unfortunately, the time for gay marriage in all 50 states may not be now. It may not even be soon. Though a string of recent court victories are cause for hope – and over the long haul its coming seems inexorable – this issue will only be resolved at the highest level. One hopes that this Supreme Court will delay justice no longer, and put an end to these unjust, unconscionable, indefensible bans.



AG Holder

A departure from recent Attorneys General who mindlessly signed on to ever-increasing executive power – whether under the auspices of the Patriot Act, FISA or otherwise – Eric Holder took a stand for civil liberties: voting rights, gay rights, limits on police aggression, and human rights for undocumented immigrants. While previous AGs often sought to increase the power and reach of their office, Holder provided a well-needed retreat from the illiberal policies of his predecessors.

The contrast with Bush Duh’s first two AGs, John Ashcroft and Alvaro Gonzalez, is striking. The former was a renowned cipher who only became AG after losing a Senate election to a dead man – a feat never accomplished before or since. As AG, Ashcroft infamously defended the Patriot Act against all comers, championing, among other things, the government’s new power to search library records to discover the reading habits of individual Americans. (In fairness, Ashcroft took a stand against Stellar Wind, another surveillance program.)

Next came Alvaro Gonzalez, who only lasted two and a half years, and seemed out of his depth from day one. He spent his time in office defending expanded police search and seizure powers, and looking for legal justifications for torture. His prodigious talents prepared him for his current position, the dean of Belmont College of Law. If you’ve never heard of Belmont Law, that may be because it was only founded three years ago.

Comparisons with Clinton’s AG and Holder’s one-time boss, Janet Reno, are no less interesting. Reno was an aggressive, efficient cop in the Rudolph Giuliani and Elliot Ness style. The longest serving US AG in 185 years, Reno gets credit for the capture and conviction of five 1993 World Trade Center bombers, two Oklahoma City bombers, and the Unabomber; and for taking on Microsoft when it was the most valuable corporation in world history. But she is fairly criticized for using excessive force in the Elian Gonzalez matter and the siege at Waco.

Holder, by comparison, has shown leniency – for good and for bad. His “too big to jail” policy with respect to bankers led to zero prosecutions in the wake of the subprime mortgage market collapse. Under him, the DOJ’s prosecution of large financial services firms has fallen to its lowest level in 20 years. However his “Smart on Crime” program seeks to avoid harsh sentencing when the facts of a case do not merit such. He’s also backed off on enforcing federal marijuana laws in states where the drug was decriminalized under state law.

Serving as AG during the so-called war on terror, Holder has been faced with the constant temptation to expand the police power at the expense of personal liberty. Waging that war abroad, he’s been aggressive, penning the legal defense for the operation that assassinated Osama bin Laden, and for the use of drones to assassinate other terrorist leaders abroad, including US citizens. But domestically Holder has been reserved, criticizing Bush Duh’s implementation of the Patriot Act and use of electronic surveillance, and condemning torture. His Justice Department has nonetheless prosecuted six government employees for leaks (compared to just three prosecutions in all of US history before), and has electronically surveilled members of the press, denying the right of journalists to protect the identity of their sources.

Holder’s respect for civil rights and limits on the police power are a major upgrade over Bush Duh’s AGs. His aggressiveness in pursuing politically unpopular liberal causes – fighting Arizona’s ill-considered immigration law, and taking on voter ID laws and redistricting in the deep south – has been laudable. Overall, Holder has been a very good AG, and as his tenure draws to a close, it’s worth pausing to reflect on how fortunate the country has been to have someone with talent, tenacity and conscience in that office – for a change.


Liberalism v. Democracy, Round 3

The US invaded Iraq ostensibly to bring democracy to the Middle East. But the Middle East was more in need of liberalism than democracy – then and now. Lying at different points along roughly the same developmental track, Jordan and Tunisia together illustrate a better course for political evolution. Jordan is today an autocracy, under the liberal rule of King Abdullah II. Tunisia had for many years also been a relatively liberal autocracy, until the Arab Spring brought democracy. For decades, both countries have had excellent economic growth – but they are at different stages of development: Tunisian per capita GDP is 50% greater. (Egypt and Libya, which also became democracies in the aftermath of the Arab Spring, are also substantially wealthier than Jordan.) History gives us every reason to hope that Jordan will also, eventually, become a liberal democracy, as its citizens grow wealthier, and demand a larger voice in their own governance.

We might be less hopeful that Egypt will blossom into a liberal democracy, because liberalism did not do especially well under Mubarek. Though the economy grew, extreme wealth inequality kept the middle class relatively small, and corruption was ubiquitous. As for Libya, the present state of affairs is as complicated as was Gaddafi’s leadership. Americans only know Gaddafi for his role in international terrorism, and his regime’s extraordinary repression. Few are aware of his economic reforms – good and bad – which lifted Libyan living standards and life expectancy to among the highest in the region.

Unfortunately, the so-called “rise of the bourgeoisie” that brought democracy to the United States, France and England – and as well to Singapore, Taiwan and Chile – does not occur in countries whose economies are based on mineral wealth, such as Saudi Arabia, Qatar, Brunei and Bahrain. Wealth tends to remain in the hands of the few. Oil gives the state a source of cash, which allows them to keep taxes low and their oligarchs content.

Kuwait – the most liberal and democratic country in the Middle East (including Israel) – is no exception to the rule. Unlike many of its neighbors, Kuwait was a commercial center long before oil was discovered. As in the West, liberalism was born and nurtured in Kuwait among merchants, which yielded a culture that respects rules of trade and property rights. Kuwaitis now enjoy the full gamut of civil and political liberties. Importantly, the example of Kuwait allows us to dispose of the absurd, racist theory that Arabs are somehow ill-suited to democracy.

One cannot fail to mention Hugo Chavez – democratically elected and reelected, and fairly liberal – who in the US was often regarded as illegitimate, or mischaracterized as a dictator. His many policies were a mixed bag and cannot be thoughtfully summed up in the space we have here. But even if you reject them, regimes such as his should be tolerated as hiccups that naturally occur within the framework of the democratic process. (Europeans surely did their best to endure Bush Duh’s two terms with the same sentiment.) The US should not have hesitated to condemn the coup that temporarily removed Chavez from power – because in the long term, Americans are safest and most prosperous in a world of liberal democracies. Once a government evolves to that stage, its perpetuation must be a major US policy goal, overriding the short-term advantages that regime-change might offer.

When time and space permit, the Field Guide will compare and contrast the US response to Chavez’s short-lived coup with its response to the 2014 Ukraine Revolution. And while we’ll revisit the tension between liberalism and democracy in the near future, this coming Friday has been reserved to offer liberals guidance in choosing the best course in the mounting crisis in Iraq.










Liberalism v. Democracy, Round 2

On Friday, the Field Guide delved into the distinct – and often divergent – traditions of liberalism and democracy. Today we bring them to bear on current events.

The struggle today in the Middle East is eerily familiar. After World War II, with the collapse of colonialism, many countries gained independence, and people across the world got the right to vote for the first time. Going with the political fashion of the day, many voted for socialists. This was extremely troubling for the US and for US business interests: socialist governments were more likely to align themselves with the USSR; and property rights were less secure under socialist democracies than they were under liberal dictators. Largely over the concern of US businesses, the US instigated at least 3 revolutions that overthrew democratically elected governments (Iran 1953; Guatemala 1954; Chile 1973), all of which led to the installation of brutal dictators. Right into the 1980s, Reagan was funding a terrorist organization in its effort to overthrow democratically elected socialists in Nicaragua; while propping up dictatorships from El Salvador to Egypt – including Guatemala and Chile. (Iran deposed its American-sponsored dictator in 1979.)

Analogously, as some in the Middle East vote for the first time, many are going with the most popular political movement in the region today: Islamism. That’s how the Muslim Brotherhood came to power in Egypt, and how Hamas came to power in Gaza – by democratic processes. Elections held today in Iraq or Syria might produce a similar result. And so, once again, the US is finding itself at odds with democracy because of the results it’s producing – while the US is reminded again and again of the usefulness, and-or the lesser evil, of authoritarians.

From a policy standpoint, when judging illiberal democracies and liberal authoritarians, each case must be taken on its own merits. A good rule of thumb for US foreign policy would be that a democracy is good to the extent that it respects minority rights. Given an open and unfettered debate in the marketplace of ideas, one has every reason to believe that such a democracy will naturally find its way to liberalism, simply because it offers the greatest good for every facet of life: economic, health, happiness, and of course, freedom.

What this means is that the US should be tolerant of Islamist-led democratic governments if they allow opposing parties to organize, operate and compete for votes. One must note, however, that parties based on religion, and not reason, tend to be especially intolerant of competing viewpoints, because they often believe that their “truths” are handed down from on high, and thus are not open to debate, much less compromise. The ineptitude of the Tea Party in the US legislature is a fine illustration of this problem. Democracy simply cannot function in the absence of rationality – dogma is anathema to democratic processes.

One might further posit that liberal dictatorships are acceptable, because history has shown that, with time, liberalism begets wealth, and a wealthy populace comes naturally to demand a political voice commensurate with its material well-being. This is the dynamic that brought democracy to much of Europe, and to countries all along the Pacific Rim – and, of course, to the US as well. One hopes the same will happen in China, where an increasingly wealthy class of industrialists should – if history teaches us – also come to demand a role in their own governance. To make a bolder point: within a given polity, it seems constructive for liberalism to precede democracy – for a population to first learn respect for procedural fairness, before taking on self-governance.* That’s how it happened in most of the developed world, perhaps not coincidentally.

Liberal dictatorships, simply put, are not so bad because they tend to be self-eliminating – and liberals should be tolerant of such states as necessary stepping stones toward liberal democracy. Illiberal democracies, by comparison, can be much more persistent, to the considerable expense of their persecuted minorities. The West Bank is a modern example: its Arab population has had no civil or political rights, nor has it known procedural fairness, during nearly a half-century of domination by “democratic” Israel. The Jim Crow South endured for well over 100 years – vestiges are still apparent today, 150 years since the Civil War.

The Field Guide continues Wednesday on the themes of liberalism and democracy, with a look at individual regimes in the Middle East and elsewhere.



* CT thanks Fareed Zakariah for making this and many other acute observations in his excellent book, The Future of Freedom. While the work of many pundits is dated a month after publication, this 2003 work is as compelling and relevant today as ever.