Don’t you wish that, at least once every presidential-election cycle in the States, everyone who doesn’t vote and who is at least 18-years-old somehow could be enticed to cast a ballot, separately from the Regular Voters, of course, and that the members of this group of Irregular Voters (or Regular Non-Voters) not only could exercise their right to vote and to have their votes counted (to use the phrase with which the U.S. Commission on Civil Rights is so enamored), but also to have their votes count—I mean really count, in a substantive and democratically meaningful sense of the term?
What if, for a change, this country were to try some innovative experiments in the art of democracy? Say, by passing a law some day soon that lets the next presidential election after this one, the one in November, 2008, be decided by those U.S. citizens who for whatever reason were denied the right to participate in this coming November’s?
The U.S. Census Bureau reports that during the last presidential election, in November, 2000—candidate- and platform-wise, the worst in memory since the one that came before it, and decided, ultimately, by the fiat of a five-to-four majority of the U.S. Supreme Court—
(a) the voting age population living in the States totaled 202,609,000 people, of whom
(b) 186,366,000 were U.S. citizens, and 16,243,000 weren’t,
(c) 129,549,000 had registered to vote, and
(d) 110,826,000 actually cast ballots for the presidency.
(Quick aside. This same Census Bureau report reminds us that of the three criteria determining eligibility to vote in the States, age (18 years and older), U.S. citizenship, and registration (North Dakota being the lone exception to the last criterion—maybe we all should move there?), citizenship has become “especially important in the consideration of racial and ethnic differences in voting rates. Recent immigration has differentially affected the proportion of noncitizens in these groups—2 percent of White non-Hispanics were not citizens, compared with 6 percent of Blacks, 41 percent of Asians and Pacific Islanders, and 39 percent of Hispanics in 2000….Thus, voting rates based on the voting-age population and citizen population differ substantially for the groups with large proportions of noncitizens….The proportions of noncitizens in November 2000 were particularly high among Hispanics (of any race) and Asians and Pacific Islanders and reflect large-scale immigration to the United States” (pp. 1-2).)
Thus, as of November, 2000, roughly 92 percent of the voting age population were U.S. citizens, and 8 percent weren’t; roughly 63.9 percent of the voting age population had registered to vote; and 54.7 of the voting age population actually cast ballots. (Or, if you prefer to hew to the citizenship criterion, as the Census Bureau now does: Of the 186,366,000 adult U.S. citizens living in this country as of November, 2000, roughly 69.5 percent of them had registered to vote; and 59.5 percent of these actually cast ballots.—The percentages vary, depending on whether we use the adult population per se or the number of U.S. citizens of voting age as our base.)
But, either way, what this means is that 85.5 percent of the registered voters actually cast ballots in 2000; 59.5 percent of adult U.S. citizens; and 54.7 percent of the adult population. All in all, a pretty “good” turnout, by recent American standards. Which is to say: On the downward slope.
Now. The adult population in the States includes people variously referred to as not eligible to vote in U.S. elections, and the number of people not eligible to vote is damn significant. In fact, perhaps as much as 10 or 11 percent (or thereabouts) of the adult population living here are simply ineligible to vote. Not because they haven’t registered. But because they belong to one of the two principal categories legally excluded from voting: (a) non-citizens (8 percent in 2000, and no doubt something higher today) or (b) those who have been convicted of felony-status crimes and who therefore have been disenfranchised by law—some 4.7 million people today, according to the Sentencing Project’s most recent data, or another 2.3 percent of the adult U.S. population.
Sticking with the case of the felony-disenfranchised, this 4.7 million estimate for people who have been surgically removed from the list of potential voters is up from the 3.9 million mark it was estimated to be just six years ago, in a landmark report co-sponsored by the Sentencing Project and Human Rights Watch, Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States (October, 1998).
Back then, the authors argued, powerfully, “there is little doubt that [the UN Human Rights Committee] would conclude that laws excluding ex-convicts from voting for life are unreasonable and disproportionate,” and, similarly, that “laws depriving all persons of the right to vote while in prison, on probation, or parole—regardless of the underlying offense—are also inconsistent with Article 25 [of the International Covenant on Civil and Political Rights].” Even more to the point, the authors stated that the “racially disproportionate impact of disenfranchisement laws in the United States is also inconsistent with the principles of non-discrimination contained in the ICCPR and in the Convention on the Elimination of All Forms of Racial Discrimination“—a treaty that “requires states parties to eliminate laws of practices which may be race-neutral on their face but which have ‘the purpose or effect’ of restricting rights on the basis of race” (pp. 20-22).
Purpose or effect is an interesting way of putting it. Not only does the phrase cover pretty much everything in question. But does so very politely. Very delicately. Still. Let’s not forget that this is the United States of America we are talking about here—and not some civilizationally-deficient country in Africa that American Power and the UN Secretary-General would prefer you to look at. No. There are many ways in which actual purpose can be inferred from effects—not the least of which are the more than 25 years-worth of nothing but the same effects, one heaped in a pile atop the others, year after year.
Not all of these effects are unintended, either. When the U.S. Department of Justice announced in late July that the “combined federal, state and local adult correctional population reached a new record of almost 6.9 million men and women in 2003,” and that the percentage of this country’s “correctional population”—or people trapped within this madhouse of incarceration, probation, or parole—now accounts for 1 in every 32 adults, or 3.2 percent in all, once again we saw the not-unintended consequences of state policy directed towards the criminalization of large areas of everyday life, social as well as personal, and their disparate impact on targeted groups—the ones who comprise the “correctional population” disproportionately to their numbers in U.S. society, and whose members could apply for statehood, if only they lived in a single contiguous space. The Government’s own Bureau of Justice Statistics admits as much, also year after year, as when this report shows that in 2003, 30 percent of all probationers and 41 percent of all parolees were black, and that these percentages have hovered in the same range since at least the mid-1990s.
As the Sentencing Project has reported many times (e.g., September, 2004), all states but two (Maine and Vermont) disenfranchise prisoners; 35 states disenfranchise parolees; 31 states felony probationers; and in as many as 14 states, individuals convicted of a felony-status crime (regardless of the crime) face disenfranchisement for life. (See page 3 of this little fact sheet, which provides the Sentencing Project’s latest chart of the enforcement of felony disenfranchisement laws in the 50 states and the District of Columbia.)
In their most recent major report, The Vanishing Black Electorate (September, 2004), the Sentencing Project concludes:
Felony disenfranchisement is a concern both for its practical impact and for its implications for a democratic society. As we saw in the historic 2000 election in Florida, a presidential election was decided by 537 votes. On the day of the election, an estimated 600,000 persons who had completed their felony sentence were unable to vote due to Florida’s restrictive disenfranchisement policies. There is no means of knowing how many of these persons would have voted or for whom they have voted if granted the opportunity, but clearly a national election may have been decided based on this policy.
No unintended effects here. And just as few surprises. I will add only one qualification: The 2000 election was decided on the basis of this policy. Not just in Florida, either. But replicated across at least six presidential administrations (12 years Republican, 12 years Democrat) and almost all of the 50 states. This, and the U.S. Supreme Court, whose Majority and especially Concurring opinions in Bush v. Gore surely rank among the greatest examples in the annals of the Court of purposive behavior achieving its intended effect. To think otherwise would be like attributing the 1.4 million black men to have been disenfranchised by felony convictions in the States, 13 percent in all, at a rate no less than “seven times the national average,” as the Sentencing Project reminds us, to mere chance.
I should add that I am much less convinced by the case put forth in another recent report on race, incarceration, and voting, Swing States: Crime, Prisons, and the Future of the Nation (August, 2004), by the Justice Policy Institute. (Note this report’s Acknowledgements section, which include “generous grants from the Open Society institute” (p. 2), perhaps the financial speculator George Soros’ most influential political tool these days, even surpassing his Quantum hedge funds.)
With Swing States, the Justice Policy Institute accepts that, on a variety of measures this election year, there are “Republican” states, “Democratic” states, and “swing” states. (Note that the JPI swears this parsing of the national political scene comes straight from the New York Times‘s online 2004 Election Guide.) The JPI then argues that, in terms of criminal justice measures (esp. incarceration and criminally harsh sentencing laws), health care, education, and the like, the Republican-leaning states are the really nasty ones, the Democratic-leaning states much nicer, and the so-called “swing” states somewhere in between, thus offering “clear tendencies” and “clear alternatives” for which direction voters might care to take this November. It was the dramatic data (all available elsewhere) couched in the progressive rhetoric of this report which the online BlackAmericaWeb.com seized upon, unfortunately, when the report was released in late August, while missing the report’s utterly mainstream Democratic pedigree and not-so-subtle endorsement of John Kerry. (Bonnie Winston, “More Blacks Going to Prison in 17 Key Election States,” Aug. 25. 2004.)
All very fine—if this is what floats one’s boat. Or, at least until one remembers the role that the Democratic Party has played over the three long decades the policies deplored by the JPI have been adopted.
Accordingly, I respectfully dissent.
George W. Bush, et al., v. Albert Gore, Jr., et al., U.S. Supreme Court [00-949], December 12, 2000
“None Dare Call It Treason,” Vincent Bugliosi, The Nation, February 5, 2001
Voting and Registration, U.S. Census Bureau, September 30, 2004
“Reported Voting and Registration by Race, Hispanic Origin, Sex and Age Groups: November 1964 to 2002,” IV, Historical Time Series Tables, Table A-1, September 30, 2004
“Voting and Registration in the Election of November 2000,” Amie Jamieson, Hyon B. Shin, and Jennifer Day, Current Population Reports, U.S. Bureau of the Census, February, 2002
Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States, Jamie Fellner and Marc Mauer et al., Sentencing Project and Human Rights Watch, October, 1998
Voting Irregularities in Florida During the 2000 Presidential Election, U.S. Commission on Civil Rights, June, 2001.
Election Reform: An Analysis of Proposals and the Commission’s Recommendations for Improving America’s Election System, U.S. Commission on Civil Rights, November, 2001
Is America Ready to Vote? U.S. Commission on Civil Rights, April 2004
“Probation and Parole in the United States,” Lauren E. Flaze and Seri Palla, Bureau of Justice Statistics Bulletin, July, 2004
Swing States: Crime, Prisons and the Future of the Nation, Eric Lotke, Deborah Stromberg, and Vincent Schiraldi, Justice Policy Institute, August, 2004
“More Blacks Going to Prison in 17 Key Election States,” Bonnie Winston, BlackAmericaWeb.com, August 25, 2004
The Sentencing Project, Felony Disenfranchisement webpage
Summary of Changes to State Felon Disfranchisement Law 1865-2003, Sentencing Project, April, 2004
Felony Disenfranchisement Laws in the United States, Sentencing Project, September, 2004
The Vanishing Black Electorate: Felony Disenfranchisement in Atlanta, Georgia, Ryan S. King and Marc Mauer, Sentencing Project, September, 2004
Public Perceptions of the Foreign Policy Positions of the Presidential Candidates, Steven Kull et al., Program on International Policy Attitudes, September 29, 2004 (also the Media Release)
“Is America Ready To Vote?” ZNet Blogs (the old ones), April 23, 2004
FYA (“For your archives”): Postscript. When on Saturday, December 9, 2000, the U.S. Supreme Court ordered a “stay” or halt to the recount that the Florida Supreme Court just one day before had ordered to proceed, pending arguments before the U.S. Court on Monday, December 11, Justice Antonin Scalia wrote that “The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner [George Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.” Thus were the Republican candidate’s interests and the country’s interests ruled to be identical, in the opinion of this one Justice. Below you’ll find a copy of the New York Times‘s reprint of the Supreme Court’s “stay” of the Florida recount. The Court’s final 5-4 Majority decision in Bush v. Gore was handed down as early as Tuesday, December 12. Meaning that both the decision, its concurrences, and its dissents, had already been reached by this point. If not quite finalized.—How’s that for equal protection before the law?
The New York Times
December 10, 2000, Sunday, Late Edition – Final
SECTION: Section 1; Page 45; Column 3; National Desk
HEADLINE: CONTESTING THE VOTE;
Supreme Court’s Decision to Halt the Florida Recount
Following is the text of the ruling yesterday by the United States Supreme Court to halt the hand recount in Florida and set Monday morning for arguments. The vote in George W. Bush v. Albert Gore Jr. was 5 to 4. The justices who voted to grant the stay requested by Governor Bush were Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor, Anthony M. Kennedy, Clarence Thomas and Antonin Scalia, who wrote a concurring opinion. Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer dissented with Justice Stevens writing the dissent.
The application for stay presented to Justice Kennedy and by him referred to the court is granted, and it is ordered that the mandate of the Florida Supreme Court is hereby stayed pending further order of the court. In addition, the application for stay is treated as a petition for a writ of certiorari, and the petition for a writ of certiorari is granted. The briefs of the parties, not to exceed 50 pages, are to be filed with the clerk and served upon opposing counsel on or before 4 p.m. Sunday, Dec. 10, 2000. Rule 29.2 is suspended in this case. Briefs may be filed in compliance with Rule 33.2 to be replaced as soon as possible with the briefs prepared in compliance with Rule 33.1. The case is set for oral argument on Monday, Dec. 11, 2000, at 11 a.m., and a total of 1 1/2 hours allotted for oral argument.
BY JUSTICE SCALIA,
Though it is not customary for the court to issue an opinion in connection with its grant of stay, I believe a brief response is necessary to Justice Stevens’s dissent. I will not address the merits of this case, since they will shortly be before us in the petition for certiorari that we have granted. It suffices to say that the issuance of the stay suggests that a majority of the court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success.
On the question of irreparable harm, however, a few words are appropriate. The issue is not, as the dissent puts it, whether “counting every legally cast vote can constitute irreparable harm.” One of the principal issues in the appeal we have accepted is precisely whether the votes that have been ordered to be counted are, under a reasonable interpretation of Florida law, “legally cast votes.”
The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.
Another issue in the case, moreover, is the propriety, indeed the constitutionality, of letting the standard for determination of voters’ intent — dimpled chads, hanging chads, etc. — vary from county to county, as the Florida Supreme Court opinion, as interpreted by the circuit court, permits. If petitioner is correct that the counting in this fashion is unlawful, permitting the count to proceed on that erroneous basis will prevent an accurate recount from being conducted on a proper basis later, since it is generally agreed that each manual recount produces a degradation of the ballots, which renders a subsequent recount inaccurate.
For these reasons I have joined the court’s issuance of stay, with a highly accelerated timetable for resolving this case on the merits.
By Justice Stevens
To stop the counting of legal votes, the majority today departs from three venerable rules of judicial restraint that have guided the court throughout its history. On questions of state law, we have consistently respected the opinions of the highest courts of the states. On questions whose resolution is committed at least in large measure to another branch of the federal government, we have construed our own jurisdiction narrowly and exercised it cautiously. On federal constitutional questions that were not fairly presented to the court whose judgment is being reviewed, we have prudently declined to express an opinion. The majority has acted unwisely.
Time does not permit a full discussion of the merits. It is clear, however, that a stay should not be granted unless an applicant makes a substantial showing of a likelihood of irreparable harm. In this case, applicants have failed to carry that heavy burden. Counting every legally cast vote cannot constitute irreparable harm. On the other hand, there is a danger that a stay may cause irreparable harm to the respondents — and, more importantly, the public at large — because of the risk that “the entry of the stay would be tantamount to a decision on the merits in favor of the applicants.” Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election.
It is certainly not clear that the Florida decision violated federal law. The Florida code provides elaborate procedures for ensuring that every eligible voter has a full and fair opportunity to cast a ballot and that every ballot so cast is counted. In fact, the statutory provision relating to damaged and defective ballots states that “no vote shall be declared invalid or void if there is a clear indication of the intent of the voter as determined by the canvassing board.”
In its opinion, the Florida Supreme Court gave weight to that legislative command. Its ruling was consistent with earlier Florida cases that have repeatedly described the interest in correctly ascertaining the will of the voters as paramount. Its ruling also appears to be consistent with the prevailing view in other states.
As a more fundamental matter, the Florida court’s ruling reflects the basic principle, inherent in our Constitution and our democracy, that every legal vote should be counted.
Accordingly, I respectfully dissent.