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Captive Voters

from the magazine

Captive Voters

Winter 1996
Politics and law
Public safety

Shoot your neighbor, and you're no longer considered a citizen of sufficiently upstanding character to vote. New York, like 46 other states, disfranchises convicted felons while they're serving their sentences. But a group of inmates at Green Haven, an upstate maximum-security prison, have gone to court to argue that their disfranchisement violates the federal Voting Rights Act.


The plaintiffs, almost all black or Hispanic, argue that the New York law has a disparate racial impact. Blacks and Hispanics who commit the same crime as whites are more likely to end up behind bars, these prisoners claim, giving the white "community" an unfair political advantage.


The claim that felons are entitled to vote is preposterous. The Constitution gives states the authority to set voter qualifications, and while several amendments limit that power, the Fourteenth specifically mentions "participation . . . in crime" as a legitimate reason for denying the franchise. Only three states—Maine, Massachusetts, and Vermont—allow incarcerated felons to vote.


While the Voting Rights Act prohibits rules that discriminate on the basis of race, farfetched claims of "disparate impact" can't supplant states' constitutional authority to set non-racial eligibility standards. For example, the birthrate among Hispanics is higher than that of whites, but no one would argue that the disfranchisement of citizens under 18 has an unlawful disparate impact. Limiting the franchise to adults is constitutionally legitimate, even though it hits Latinos harder than whites.


The Green Haven inmates have an energetic and talented advocate: Andrew Shapiro, a recent graduate of Yale Law School and a contributing editor of The Nation. Shapiro sees his clients as "inspiring civil rights advocates"; he compares the disfranchisement of felons with the literacy tests that southern states once used to keep blacks from voting—never mind that such tests had an unmistakable racist purpose. In fact, Shapiro's arguments about racial bias are just fancy legal footwork. As he makes clear in a law review article, he believes, apart from any racial argument, that inmates should vote. But that's a political argument, which belongs in the Legislature—clearly not an arena where Shapiro expects he could prevail.
 

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