99 Iowa L. Rev. 1691 (2014)

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Abstract

As many commentators have noted, the practice of felon disenfranchisement—denying the right to vote to some or all of those convicted of a felony—is widespread and familiar, but, at least in the modern context, also short of defenders. Indeed, apart from a handful of vocal public officials, a case for disenfranchisement is rarely articulated at all. Instead, critics have occupied the field largely unchallenged, arguing that felon disenfranchisement is illiberal and undemocratic, counterproductive, racist, and, in the United States, unconstitutional. Against these claims, this paper outlines a form of felon disenfranchisement that is consistent with liberal-democratic values. In particular, I argue that felon disenfranchisement is best conceptualized not as a form or aspect of punishment but as a means of regulating electoral eligibility. On this view, felons render themselves liable to disenfranchisement because they have violated the civic trust that makes liberal democracy possible. Although the long history of disenfranchisement features extreme forms of exclusion and reflects a range of odious and unconvincing rationales, a more defensible version, grounded in the liberal and republican values of the Anglo-American tradition, would apply to a narrower range of offenders and include a meaningful opportunity for restoration. In this way, the temporary exclusion of serious offenders from the electorate has the potential to affirm, rather than betray, our commitment to liberal-democratic community.