10 August 2012

Felons Voting, Sa'ad El-Amin, and Civil War Veterans

Sa'ad El-Amin - now there's a name I thought I'd never see again once I left the Greater Richmond area. I think the federal government had him in prison when I left back in 2006. I never knew the man personally, but he was one of those larger than life, fascinating train wrecks that Richmon always seemed to produce and which the feds came in and pruned out every so often.

Then, as I looked through my news feeds for the last couple weeks, his name popped up. He's suing in federal court to get his right to vote restored. Okay, if you are against taking felon's ability to vote away this makes a sort of superficial sense. It's a subject which needs to have some light shone upon it and he's a significant figure who can say he's impacted. Admittedly, I thought this might lead to a constructive conversation UNTIL I saw the rationale the news sites say he is using.

For those of you who don't know, Virginia does not allow anyone who has been convicted of a felony to vote. The ability to vote can be restored by the governor and Virginia's governors, of late, seem to be falling all over themselves to restore as many felons' ability to vote as possible. In any event it's a serious topic, deserving serious debate.

Unfortunately, Mr. El-Amin's argument goes in the opposite direction. I've not seen the filing personally, but the news sites are reporting that the Argument is based upon Section 2 of the 14th Amendment, which states:
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.
This section was put in the Amendment after the failure of attempts to include a section which guaranteed voting rights for African-Americans (because of the idea's unpopularity in Northern States). The idea was that if the Southern States refused to allow African-Americans to vote then African-Americans would not be counted when it came time to apportion congressional representatives to each State. It was perhaps an idea that was over-clever by half and it failed miserably. It was never actually implimented and may be the most ignored section in the entire constitution. In fact, the only thing this section has been used for is to show the Constitution's recognition of the ability of States to deny felons the franchise. Richardson v. Ramirez, 418 U.S. 24 (1974).

And here is where the El-Amin argument comes into play. It seizes upon the phrase "except for participation in rebellion, or other crime", which excludes those individuals from the calculus in determining the number of congressional representatives for a State. The argument then goes forward to point out that when the post Civil War Virginia constitution deprived felons of the right to vote it did not deprive those who fought for the Confederacy of their right to vote, despite the fact that they were in rebellion. Going further, the argument then points out that the rebels were, with extremely rare exceptions, White and the majority of people who are currently felons are African-American. Therefore, the denial of the right to vote is unconstitutional.

There are a couple huge flaws in this argument. (1) There is nothing which requires a State to deny both rebels and felons the right to vote. (2) At the time of the inclusion of the denial in the Virginia constitution it seems likely that the number of White felons were probably the majority so that it was not racially motivated. The first flaw is obvious, but the second requires someone with more time than me to research it. However, arguing the that current effect of one factor should be compared to the effect of another factor 140 or so years ago really makes no sense.

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