Why, in New Jersey, is the right to vote denied to people with felony convictions while they are on parole or probation? It’s politics, right? The ACLU notes, “New Jersey is home to some 80,000 citizens – most of them African American or Latino – who live and work in our state but cannot vote because they are on parole or probation.” So, I reason, since minorities tend to vote Democratic, it must be Republicans who’ve put this law on the books.
I decided to look at the history, certain that the law was recent—say sometime around the War on Drugs. I found a thorough, overwhelmingly footnoted, 2004 article by George Brooks in the Fordham Urban Law Journal. To my astonishment, I learned that felon disenfranchisement was written into New Jersey’s constitution in1844 and rested on John Locke’s concept, “that those who break the social contract should not be allowed to participate in the process of making society’s rules.”
The law had not been designed to suppress the black vote. Blacks didn’t have the vote in1844. This law appears in Section 2 of the 14th Amendment, where the states cannot abridge the right to vote except for participation in rebellion, or other crime. Brooks notes that “despite facing judicial scrutiny under the Fourteenth Amendment and the Voting Rights Act in the 1960s and 70s, felon disenfranchisement laws were almost always found to be constitutional.” (Brooks, 110)
Even though, during the War on Drugs, disproportionately more blacks than whites have been stopped, arrested, and convicted for drug-related crimes, this has nothing to do with the disenfranchisement law. Any discrimination is the responsibility of the criminal justice system, not the law. Moreover, as Michelle Alexander’s The New Jim Crow points out, it is the intent to discriminate that must be proven in court. Statistical evidence means nothing.
How can I convince my state legislators to pass a bill allowing parolees and probationers to vote, as they can in Pennsylvania? My own legislators, all Republicans, would have more to lose than to gain. Yet I cannot argue that the law is based on politics.
Maybe I should point out that the effect of changing the law will be minimal. After all, only half of Americans who can vote, do.
I could just admit that I’m a bleeding-heart liberal. I am excusing 80,000 citizens—most of them African American or Latino—who shouldn’t have broken the social contract in the first place. Or is there an excuse? Although I find John Locke’s premise compelling in the abstract (good is good and bad is bad; obey the rules), “the social contract” is troubling. The CEO of McDonald’s will find it easier to obey “Thou shalt not steal” than his employee, who must support a family on minimum wage. The social contract allows the already rich and powerful to determine who gets the profits—and, especially after Citizens United, even to determine who writes the contract. Maybe that’s a reason to consider restoring voting rights not only to parolees and probationers but also to those felons still in prison.