Texas Refuses To Consent to Refugee Resettlement

On January 10, Governor Greg Abbott (Rep.) sent a letter to Secretary Pompeo announcing his state’s refusal to consent to refugee resettlement. His letter said, ““Texas has carried more than its share in assisting the refugee resettlement process and appreciates that other states are available to help with these efforts. Since FY2010, more refugees have been received in Texas than in any other state. In fact, over that decade, roughly 10% of all refugees resettled in the United States have been placed in Texas.” He added, “Texas has been left by Congress to deal with disproportionate migration issues resulting from a broken federal immigration system.” He also cited the recent surge in migrants crossing the southwestern border last year as a reason for turning away refugees now. [1]

This refusal was contrary to the desires of major cities in the state—San Antonio, Dallas and Houston. The Mayor of Houston reacted with these words: “Regardless of where someone is from, who they are or what they believe, there is a home for them in Houston. Our welcoming spirit has led to our city becoming the national leader in refugee resettlement.” Negative words also came from these groups:

  • Lutheran Immigration and Refugee Service: “This is a deeply disappointing decision – although not surprising given Texas’ previous but unsuccessful opposition to refugee resettlement a few years ago. This is precisely why we filed a lawsuit against President Trump’s unlawful executive order, and we are confident that justice will be served — allowing children and families who have been waiting in desperation for years to be reunited with their family in Texas.” The Service added, “Nearly 2,500 refugees started to rebuild their lives in Texas last year, many of whom have additional family members in harm’s way seeking to join them in safety. These families have been torn apart by violence, war and persecution — but we never thought they would be needlessly separated by a U.S. state official.”
  • The International Rescue Committee: “In addition to making refugees’ lives harder, Texas now forfeits the opportunity for a growing business community that depends on refugees. It forfeits the cultural contributions, the growth, and ingenuity the state has come to enjoy through resettling refugees.”

The Texas decision leaves 40 consenting states (22 Democratic and 18 Republican) and 9 publicly not committed (7 Republican (Alabama, Florida, Georgia, Mississippi, South Carolina, Vermont and Wyoming) and two Democratic (Hawaii and New York)). Remember that failure to respond before the deadline, which might be January 21, 2020, will be treated as a refusal to consent.[2]

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[1] Kanno-Youngs, Texas Governor Shuts Gate to Refugees, Using New Power Granted by Trump, N.Y. Times (Jan. 10, 2020); Romo, Gov. Greg Abbott Says New Refugees Won’t Be Allowed To Settle in Texas. NPR (Jan. 10, 2020); Thebault, Texas is rejecting new refugees under Trump executive order, Wash. Post (Jan. 10,2020); Lutheran Immigration and Refugee Service Profoundly Disappointed by Texas Governor’s Decision To Opt Out of Refugee Resettlement (Jan. 10, 2020).

[2] See the following posts to dwkcommentaries about previous states’ consents: Latest U.S. Struggle Over Refugees (Dec. 11, 2019); Minnesota and Minneapolis Say “Yes” to Refugees (Dec. 14, 2019); Tennessee Consents to Refugee Resettlement (Dec. 20, 2019); Another Update on Consents to Refugee Resettlement (Dec. 30, 2019); Five More States Have Consented to Refugee Resettlement (Jan. 7, 2020): Alaska Says “Yes” to Refugee Resettlement (Jan.8, 2020).

 

 

 

Implications of Reduced U.S. Population Growth 

As noted in a prior post, “on December 30, the U.S. Census Bureau issued its official population estimates for 2019 showing, as expected, a slowdown in overall growth of population and reduced population in 10 states: New York, Illinois, West Virginia, Louisiana, Connecticut, Mississippi, Hawaii, New Jersey,Alaska and Vermont. In addition, the Census Bureau stated, “U.S. population is expected to grow 6.6% in the 2020s, a slide from 7.5% growth this decade” and “urban and rural areas across the country will divide further in the deceleration.”

The slow growth of U.S. population, as discussed in the prior post, is due to several factors: (1) the “U.S. fertility rate—the number of children each woman can be expected to have over her lifetime—has dropped from 2.1 in 2007 to 1.7 in 2018, the lowest on record.” (2) “Death rates, already rising because the population is older, have been pressured further by ‘deaths of despair’—suicide, drug overdoses and alcohol-related illness.” (3) U.S. immigration “has been trending flat to lower” and is subject to anti-immigration policies of the Trump Administration.

An editorial in the Washington Post notes that this may cause a positive reduction in the demand for resources. However, the reduced population growth “may mean less economic growth and a diminished support base for a large retired cohort” as well as a warning that “starting a new life in the United States has come to seem less attractive, both to prospective parents already living here and to prospective arrivals from abroad.”[1]

This, said the Post, “is a warning” that “the need for more [immigration] is real,” which “this country cannot afford to ignore.” [2]

Lower population growth is not the problem in rural America. Declining population is its problem. This situation recently was examined at the Regional Economic Conditions Conference of the Federal Reserve Bank of Minneapolis by Beth Ford, the CEO of Land O’Lakes, the Minnesota-based, member-owned agricultural cooperative.[3]

She said this population problem was exacerbated by problems in the agriculture economy. “Consolidation was happening across agriculture because of oversupply.” The average age of farmers was rising, and it is awfully difficult for young want-to-be farmers to get into the business, resulting in widows owning 60% of Iowa’s farmland. Many dairy farmers are surviving by taking jobs off the farm. Conventional corn and soybean farming will continue although the farming incentive structure will have to change over time. “Farmers are raising wages for help, but can’t find people who want to do the work.” Consolidation of farms continues because of economies of scale. The rural communities where farmers live are struggling to survive. Under these conditions, government subsidies for agriculture are necessary.

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[1] Editorial, America’s dip in population growth is a warning we shouldn’t ignore, Wash. Post (Jan. 4, 2020)

[2] Recent letters to the Post disagreed with the conclusion that lower population growth was a problem.  Instead, one letter argued that a “decreasing population would naturally buy the United States more time to use the limited amount of resources we have, to find a bipartisan plan of attack against climate change and to create legislation to protect the environment.” Another letter said that “slower population growth provides an opportunity for us to lift up the next generation so we can have a healthy, skilled, productive workforce” by focusing resources and attention on “the 13 million children trapped in poverty.” (Letters to Editor, Slow population growth is a good thing, Wash. Post (Jan. 9, 2020).

[3] Belz,Land O’Lakes CEO calls for investment in rural America , StarTribune (Jan. 9, 2020).

 

Alaska Says “Yes” to Refugee Resettlement  

On January 6, Alaska Governor Mike Dunleavy (Republican) released his last month’s letter of consent to Secretary Pompeo, pursuant to a request from the Associated Press, although that letter was not found in this blogger’s internet searches.

The Governor that day also gave an interview in which he said “the resettlement program has a longstanding history and is in line with U.S. and Alaska values.  I think America and Alaska get behind because, once again, it’s folks that are in situations where there’s war or some type of persecution and of course, when they apply to come here, the hope is that that’s put behind them and they can get on with their lives and be part of the state, if they choose to stay, and part of the country.”[1]

Conclusion

Alaska is now the 40th state to have consented to refugee resettlement. That leaves the following states which apparently have not so consented: eight with Republican governors (Alabama, Florida, Georgia, Mississippi, South Carolina, Texas, Vermont and Wyoming) and two with Democratic governors (Hawaii, and New York).[2]

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[1] Bohrer, Alaska will continue to accept refugees, Dunleavy says, Anchorage Daily News (Jan. 8. 2020)

[2] See the following posts to dwkcommentaries about previous states’ consents: Latest U.S. Struggle Over Refugees (Dec. 11, 2019); Minnesota and Minneapolis Say “Yes” to Refugees (Dec. 14, 2019); Tennessee Consents to Refugee Resettlement (Dec. 20, 2019); Another Update on Consents to Refugee Resettlement (Dec. 30, 2019); Five More States Have Consented to Refugee Resettlement (Jan. 7, 2020).

 

 

 

 

 

 

 

 

 

 

 

Five More States Have Consented to Refugee Resettlement     

A website from the Lutheran Immigration and Refugee Service has a list of 39 states that so far have consented to refugee resettlement with hyperlinks to the relevant documents. This list includes five states that have so consented (three Republican governors (Idaho, Maryland and Missouri) and two Democratic governors (California and Nevada)) in addition to the 34 previously identified in a post to this blog:  [1]

Justifications for Consents

These five additional states provided justifications for their consent. Here they are along with those from four of the previously identified 34 states (Arkansas, Indiana, Tennessee and West Virginia).

Arkansas.[2] Governor Asa Hutchinson on December 23 issued a consent letter to Secretary Pompeo, stating, “Arkansans have a history of welcoming refugees. While we fully support control of our borders and oppose illegal immigration, we also value the contribution of immigrants and understand the importance of America continuing to be a welcoming nation for those truly seeking refuge and following the legal path to our land. Immigrants bring energy, a thirst for freedom, and a desire to pursue the American dream. This is America’s strength and part of our future.”

California.[3] In a December 20, 2019, letter to Secretary Pompeo, Governor Gavin Newsom said, “the State of California is proud to be a welcoming state, and is committed to the continued resettlement of refugees in partnership with local jurisdictions and community partners. California recognizes its resettlement programs and services are an indispensable lifeline to refugees who have been forcibly dispatched from their home countries and cannot rebuild their lives where they first fled.”

Governor Newsom added, “The refugee resettlement program has a long history in California, spanning over 40 years and successfully resettling over 700,000 men, women and children. During these four decades, refugees continuously have contributed to the enrichment of our economy, culture, and society. California’s communities have flourished because of their diversity and ongoing ability to embrace refugees and immigrant families. . . . Refugees deserve our support and we will keep our doors open to these families and people to sustain  an inclusive California for all.”

Idaho.[4]  Governor Brad Little’s December 30, 2019 letter to Secretary of State Michael Pompeo merely said the state consented after all of its counties had consented.

Indiana.[5] Governor Eric Holcomb’s December 13th letter to to Cole Vega (Executive Director (Exodus Refugee Immigration, Inc.), “Indiana is a destination of certainty, stability and opportunity. As a state, we are on course to become the absolute best place in America to grow as an individual, a family, a business and as a community. Our long tradition of welcoming and helping to resettle refugees with support from our federal partners, shows the world the compassion of Hoosiers and our willingness to give others the ability to grow and prosper in the great state of Indiana.”

“In just the last five years, State based non-profit agencies have resettled thousands of deserving, qualified individuals in the Hoosier state, who have been fully and carefully vetted by relevant federal government agencies. These are . . . individuals who have gone through all the proper channels, were persecuted for their religious or political beliefs in their homeland and have sought and been granted refugee status in our nation of immigrants.”

Maryland.[6] On December 30, Governor Larry Hogan’s consent letter to Secretary Pompeo said, “Providing more flexibility to states has been one of my key priorities, and I appreciate the administration’s renewed emphasis on state and local engagement in determining policies that affect our security and resources.”

Governor Hogan also stated, “With proper diligence and in conjunction with the continued cooperation of local jurisdictions in our state, Maryland consents to receive legally vetted resettlement refugees in Fiscal Year 2020, per the terms of the Executive Order. We are willing to accept refugees who the federal government has determined are properly and legally seeking refugee status and have been adequately vetted. This, as you know, is different from any kind of ‘sanctuary’ status for those in the United States unlawfully. Maryland’s approach is consistent with both our laws and our values.”

A local newspaper article about this decision stated that Maryland had accepted nearly 10,000 refugees since 2016.

Missouri.[7] Governor Michael Parson’s December 30, 2019 letter to Secretary Pompeo said, “Missouri has a long and rich history of immigration, dating back to America’s earliest explorers, fur traders, and missionaries. Today, Missouri’s population includes thousands of former refugees who have become vital members of our communities. Since 2002, nearly 18,000 refugees from 45 countries have resettled in Missouri.”

The Governor continued, “In Missouri, state organizations and faith-based groups work tirelessly to support refugee resettlement. Currently, there are five agencies that integrate refugees in St. Louis, Kansas City, Columbia, and Springfield, where they have helped strengthen local economies, especially through entrepreneurship. These groups do an excellent job of transitioning newly settled populations, ensuring they are educated, trained, and prepared to assimilate into their new community. In fact, St. Louis boasts one of the largest Bosnian populations outside that country itself. Community volunteers, especially faith-based partners, continue to be an integral part of such local resettlement efforts.”

The Governor concluded, “We will continue to work hard to ensure refugees become a thriving part of our communities, and I am confident this demonstration of compassion will mark the first step in these immigrants becoming  patriotic and productive fellow Americans.”

 Nevada.[8] Governor Steve Sisolak in a December 18, 2019 letter to Secretary Pompeo stated, “Nevada is proud of our long-standing tradition of resettling refugees. Since the 1970s, Republican and Democratic Governors from Nevada have welcomed these individuals into our state with open arms. Earlier this year, I had the opportunity to meet with dozens of refugee children in the State Capitol. . . . While their unimaginable experiences of suffering and hardship may have originated in different areas around the globe, the personal stories they shared were defined by courage, hope and resilience. These stories embody the dignity and values of this country. Such is the story of Nevada Assemblyman Alexander Assefa. Mr. Assefa came to the U.S. as a refugee with similar hopes and dreams. After a lot of hard work, he became a pilot, a small business owner, and he now proudly serves in the Nevada State Legislature. Above all, he is a proud American.”

“We need not forget that refugees fled for their lives after enduring persecution, war and dire humanitarian conditions. Many waited several years in remote places, while undergoing extensive background checks and security clearances, for the opportunity to start a new life in the United States. Once here, refugees become productive, responsible and self-sufficient members of society and account for an important part of our workforce and that drives our economic engine.”

Tennessee.[9] After a perfunctory consent letter to Secretary Pompeo, Governor Bill Lee was more fulsome in a December 18 letter to the state’s Lieutenant Governor and Speaker of its House of Representatives that stated, “Resettlement will be facilitated by the Trump Administration and non-profit organizations with extensive experience in this area. The refugee population in Tennessee is small, and I believe our consent to cooperate and consult with the Trump Administration to provide a safe harbor for those who are fleeing religious persecution and violent conflict is the right decision. The United States and Tennessee have always been, since the very founding of our nation, a shining beacon of freedom and opportunity for the persecuted and oppressed, and particularly those suffering religious persecution. My commitment to these ideals is based on my faith, personally visiting refugee camps on multiple continents, and my years of experience ministering to refugees here in Tennessee.”

West Virginia.[10]  Governor Jim Justice’s December 20, 2019 letter to Secretary Pompeo, said, in part, “West Virginia has had great success with our refugee resettlement agency, which has been in operation since 1978. Refugees who have resettled here have become productive citizens and are welcomed into our West Virginia family.”

Conclusion

Now we wait to learn whether the other 11 states will also consent to such resettlements. They are nine states with Republican governors (Alabama, Alaska, Florida, Georgia, Mississippi, South Carolina, Texas, Vermont [11] and Wyoming) and two states with Democratic governors (Hawaii and New York). The following  colored map on the Lutheran Immigration and Refugee Service’s website showing the consenting states in green and the 11 remaining states in gray emphasizes that the most of the remaining states are in the Deep South.

Consent Map Refugee Resettlement

 

This blogger believes it safe to assume that the three remaining Democratic  governors will consent and that it is more problematical whether the eight remaining Republican governors, primarily from the Deep South, will do so.

In the meantime those of us who support refugees should celebrate and congratulate those states that have consented and shared the many contributions to their states by previously resettled refugees.

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[1] Lutheran Immigrant & Refugee Service, Consents to Refugee Resettlement.

[2 ] Letter, Governor Hutchinson to Secretary Pompeo (Dec. 23, 2019); Gov. Hutchinson agrees to allow refugees into Arkansas, THV (Dec. 24, 2019).

[3]  Letter, Governor Newsom to Secretary Pompeo (Dec. 20, 2019).

[4] Letter, Governor Little to Secretary Pompeo (Dec. 30, 2019); Blake, County, Little offers support for refugee resettlement, but questions over jurisdiction remain, 6KPVI (Dec. 30, 2019); Assoc. Press, County, governor support refugee resettlement in Idaho, Id.Bus.Review (Jan. 3, 2002). /

[5]  Letter, Governor Holcomb to Cole Vega (Exec. Dir. Exodus Refugee Immigration, Inc.) (Dec. 17, 2019);

[6] Letter, Governor Hogan to Secretary Pompeo (Dec. 30, 2019); Sanchez & Hutzell, Maryland Gov. Hogan agrees to continue accepting refugees, Capital Gazette (Jan. 1, 2020).Tan, Maryland Gov. Hogan issues written consent for refugee admissions in response to Trump order, Wash. Post (Jan. 2, 2020).

[7] Letter, Governor Parson to Secretary Pompeo (Dec. 30, 2019); Suntrup, Gov. Mike Parson says Missouri will continue accepting refugees, St. Louis Post -Dispatch   (Jan. 1, 2020).

[8]  Letter, Governor Sisolak to Secretary Pompeo (Dec. 18, 2019).

[9]  Letter, Governor Lee to Secretary Pompeo (Dec. 18, 2019); Letter, Governor Lee to Lt. Gov. McNally & Speaker Sexton (Dec. 18, 2019).

[10] Letter, Governor Justice to Secretary Pompeo (Dec. 20, 2019).

[11] This blog’s 12/30/19 post erroneously listed Vermont as consenting.

 

U.S. Citizens Convicted of Felonies Should Be Allowed To Vote

As mentioned in a prior post, the U.N. Human Rights Committee recently raised the issue of whether convicted felons should be entitled to vote in U.S. elections. As a result, the Committee recommended certain changes in those laws that will be discussed below.

First though we will look at U.S. laws on the subject before examining the U.N. Committee’s recommendations and ongoing efforts in the U.S. to reform these laws.

U.S. Laws on Voting by Felons

With certain exceptions, the determination of eligibility to vote in federal, state and local elections in the U.S. is left to the laws of the states.[1] Here is a summary of those laws:[2]

Number of States   Names of States and District of Colombia Felon Voting Status
2 Maine & Vermont Eligible to vote in or out of prison
14 District Columbia, Hawaii, Illinois, Indiana, Massachusetts, Michigan, Montana, New Hampshire, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island & Utah Eligible to vote after term of incarceration
4 California, Colorado, Connecticut & New York Eligible to vote after term of incarceration + parole
20 Alaska, Arkansas, Georgia, Idaho, Kansas, Louisiana, Maryland, Minnesota, Missouri, Nebraska, New Jersey, New Mexico, North Carolina, Oklahoma, South Carolina, South Dakota, Texas, Washington, West Virginia & Wisconsin Eligible to vote after term of incarceration + parole + probation
11 Alabama, Arizona, Delaware, Florida, Iowa, Kentucky, Mississippi, Nevada, Tennessee, Virginia & Wyoming Not eligible unless various conditions are met

Since 1996 many states have passed laws to expand felon voting rights and to simplify the process for restoration of such rights. There, however, are a few outliers that have imposed greater restrictions; they include the following:

  • In 2011 the Florida Board of Executive Clemency adopted a new policy requiring all ex-felons to wait five and seven years before applying to regain voting rights.
  • In 2011 the Iowa governor revoked an automatic restoration of voting rights for all ex-felons and instead imposed a requirement for ex-felons to apply to regain such rights.
  • In 2012, South Carolina mandated that felons on probation could not have such restoration.

The bipartisan National Association of State Legislatures (NASL) points out several problems administering these laws that make it more difficult for former felons to vote:

  • “Even in states where ex-offenders automatically regain the right to vote upon completion of their sentence, the process of re-registering to vote often is difficult. One reason is the complexity of the laws and processes surrounding disenfranchisement. In some cases, it is difficult to determine whose rights can be restored. This can vary in some states according to the date of the crime, the conviction, or the release from prison, or the nature of the crime. The complex restoration process also can be daunting. It often involves lengthy paperwork, burdensome documentation, and the involvement and coordination of several state agencies.”
  • NASL adds that a “second barrier to restoration of voting rights for ex-offenders is the often inconsistent communication among agencies. The methods of communicating the loss and restoration of voting rights among courts, corrections and elections officials are not always reliable, timely or consistent. This inconsistency can result in uneven application of the law, even when the laws are clear.”
  • Another barrier, according to NASL, “is lack of information. Ex-offenders sometimes are not aware that they regain their voting rights automatically upon completion of their sentence. They go through life believing they cannot vote when, in fact, they can. In other cases, they are not informed of the process for regaining their rights or offered assistance in doing so. As long as they remain ignorant of the necessary steps, ex-offenders cannot begin the process of regaining voting rights.”
  • The “final obstacle” to former felons voting, says NASL, “is under-funding of parole boards in some states where offenders must apply to have their rights restored. A massive backlog of applications can exist because the agencies do not have adequate staff or resources to process them in a timely manner.”

As a result of these laws and their administration, an estimated 5,800,000 U.S. citizens were ineligible to vote in the 2008 elections. This included 1,400,000 African-American men, more than 676,000 women and 2,100,000 ex-felons who had completed their sentences. Another way of looking at this disenfranchisement, 7.7% of all African-American citizens were ineligible to vote in 2008.

All of this is happening with 2.2 million U.S. citizens in prison or jail in 2012, a larger share of the total population than in any other country and about five times greater than the average for other industrialized nations.

The U.N. Committee’s Recommendations

Article 25 of the International Covenant on Civil and Political Rights (ICCPR) provides, in part, that “Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 [race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status]and without unreasonable restrictions: . . . (b) To vote . . . at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors. . . .”

As previously mentioned, this treaty created the U.N. Human Rights Committee and empowered it to conduct periodic reviews of compliance with that treaty by its States Parties, one of which is the United States.

Therefore, U.S. compliance with Article 25 regarding voting was one of the topics covered by the recent Committee’s report of its review of U.S. compliance with the ICCPR.

The Committee first reiterated “its concern about the persistence of state-level felon disenfranchisement laws, its disproportionate impact on minorities and the lengthy and cumbersome voting restoration procedures in states.”

The Committee then recommended that the U.S. should “ensure that all states reinstate voting rights to felons who have fully served their sentences, provide inmates with information about their voting restoration options and remove or streamline lengthy and cumbersome state voting restoration procedures, as well as review automatic denial of the vote to any imprisoned felon, regardless of the nature of the offence.”

U.S. Advocates for Expansion of Felon Voting Rights

A number of U.S. NGOs are advocates for expanding voting rights for felons. They include (a) the American Civil Liberties Union; (b) the Leadership Conference on Civil and Human Rights, a coalition of over 200 national organizations promoting and protecting U.S. civil and human rights toward the goal of a more open and just society;[3] (c) the Sentencing Project, which works for a fair and effective U.S. criminal justice system by promoting reforms in sentencing policy, addressing unjust racial disparities and practices, and advocating for alternatives to incarceration; (d) the Brennan Center for Justice at NYU School of Law;[4] and (e) the National Association of Criminal Defense Lawyers.

In addition, several prominent public officials have supported such reforms.

Earlier this year in a speech about criminal justice reform at Georgetown University, U.S. Attorney General Eric Holder made extensive remarks about the need for reforming our laws regarding felon voting.[5]

The Attorney General emphasized the need to do all we can to encourage the need for successful reintegration of individuals who had been convicted of felonies, including the restoration of the “single most basic right of American citizenship—the right to vote.” Otherwise such disenfranchisement perpetuates “the stigma and isolation” of former felons and increases “the likelihood they will commit future crimes.”

Moreover, said Holder, such disenfranchisement has a “disparate impact on minority communities.” Today roughly 2,200,000 black citizens (or 1 in 13) are excluding from voting for this reason; in Florida, Kentucky and Virginia that ratio is 1 in 5. For Florida that represents 10% of the state’s potential electorate; in Mississippi, 8%.

Holder added that Iowa recently abolished automatic restoration of voting rights after completion of a criminal sentence in favor of an innocuous-sounding requirement to apply to the governor for such relief. However, according to Holder, after two years of the new policy, fewer than 12 such applications had been approved out of 8,000.

Republican Senator Rand Paul of Kentucky repeatedly has called for expansion of felon voting rights. In February 2014 he testified before a Kentucky Senate committee in support of restoring the right to vote for many non-violent felons in his state. Paul said that restoring voting rights for those who have repaid their debt to society was simply the right thing to do. In other words, “One mistake in life shouldn’t permanently block a citizen’s access to the ballot box [because the] right to vote is among the most important rights we have. It is something for which people in other countries have lost their lives.”

Following Senator Paul’s testimony, the committee and then the full Senate passed a proposed constitutional amendment that would restore the right to vote in Kentucky for many non-violent felons who have completed their sentences. If the Kentucky House approves the same measure and the two houses agree on a compromise bill, it will be on the ballot for voters to approve in November.[6]

In Virginia, former Governor Robert F. McDonnell (Republican) enacted a policy in 2012 that allowed those with non-violent felony convictions to have their voting rights automatically restored. In addition, McDonnell and his Democratic successor, Terry McAuliffe, have supported a state constitutional amendment that would restore voting rights to ex-felons automatically upon the completion of their sentences.

Conclusion

This problem of obstacles to felons’ voting was brought home to me when I went door-knocking for the re-election of President Obama in 2012 and encountered several people who said they were not eligible to vote. They did not say why, but I surmised that they had been convicted of felonies and had not yet completed their parole or probation. I felt then (and now) that they were entitled as U.S. citizens to have their voices heard in the election.

Given the high levels of incarceration in the U.S. and the deplorable conditions in most of our prisons, these potential voters should provide a way to increase the importance of this public policy issue and to be a force for improving those conditions.

Another benefit of such reforms should be the elimination of the supposed “need” to have restrictive state voter “ID” laws to eliminate or reduce purported voter fraud. A Wisconsin voter “ID” law on April 29th was stricken down as unconstitutional by a federal district court.

I hope that all U.S. citizens become concerned about the disenfranchisement of our fellow citizens who have been convicted of felonies and become advocates for changing the state laws that cause this deprivation.

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[1] The U.S Constitution provides that “Congress may at any time by Law make or alter such Regulations [set by the States for the Times, Places and Manner of holding Elections for Senators and Representatives] except [not] as to the Places of chusing Senators” (Art. I, sec. 4). The Fourteenth Amendment says,”All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.  No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (14th Amendment.) (The 14th Amendment also implicitly endorses a state’s denial or abridgment of a U.S. citizen’s right to vote because of participation in “rebellion, or other crime” in connection with allocation of seats in the House of Representatives.) The Constitution further provides, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude [slavery]” (15th Amendment) or “sex” (19th Amendment) or “age [18 years of age or older]” (26th Amendment). In addition, the federal Voting Rights Acts of 1965 and of 2006 imposed certain measures to implement the 15th Amendment to the Constitution, and last year the U.S. Supreme Court invalidated an important part of the latter statute.

[2] Greater details on these laws are available on a ProCon website, on the Brennan Center website and on a map prepared by the American Civil Liberties Union.

[3] The Leadership Conference submitted its report on felon voting to the U.N. Human Rights Committee in connection with the latter’s review of U.S. human rights.

[4] The Brennan Center along with ACLU is supporting the proposed federal Democracy Restoration Act that would restore voting rights to ex-felons who had completed their incarceration. It was introduced in 2014 by Representative John Conyers, Jr. (H.R. 4459) and Senator Ben Cardin (S.2235).

[5] The U.N. Human Rights Committee’s concluding observations noted its “satisfaction” with Attorney General Holder’s speech, which also was applauded  by a New York Times editorial.

[6] On March 5th the Kentucky House rejected the Senate bill because it did not go far enough in expanding the voting rights, and by the end of March, legislators did not think a compromise was likely this session of the legislature. On April 16th, however, the House passed a bill that will prompt a conference committee to try to work out a compromise that both houses could accept.

U.S. Supreme Court Shows Unjustified Hostility to the Voting Rights Act of 2006

On February 27, 2013, the U.S. Supreme Court heard oral arguments in Shelby County, Alabama v. Holder, No. 12-96, which raises the following issue:

  •  “Whether Congress’ decision in 2006 to reauthorize [for 25 years] Section 5 of the Voting Rights Act [of 1965] under the pre-existing coverage formula of Section 4(b) of [that] Act [requiring certain states to obtain preclearance from the U.S. Department of Justice or a special federal court for any changes in their election laws] exceeded           its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.”[1]

As has been frequently reported, during the argument Chief Justice John Roberts and Associate Justices Antonin Scalia, Samuel Alito and Anthony Kennedy asked questions and made comments strongly suggesting that they were prepared to invalidate this statutory provision,[2] a conclusion that already had been reached by Associate Justice Clarence Thomas in a prior case. If this is a correct reading of the recent argument, then there would be at least a 5-4 majority on the Court to declare the provision unconstitutional.

According to Linda Greenhouse, a leading Supreme Court follower, the “goal of [the petitioner] Shelby County and [apparently a majority] . . . on the Supreme Court is to depict Section 5 as an anachronism, a needless cudgel held by the big bad federal government over the head of a transformed South.“

Here are just a couple of examples of that attitude from the argument.

Chief Justice John Roberts
Chief Justice         John Roberts

Chief Justice Roberts asked or, as Greenhouse put it, “taunted” the U.S. Government’s lawyer (Solicitor General Donald Verrilli) with the following questions (and Roberts’ own answers) apparently to express Roberts’ belief that Mississippi has a better record than Massachusetts on black voter registration and turnout and that the Voting Rights Act provision at issue is no longer needed and, therefore, unconstitutional:

  • “Do you know how many submissions there were for preclearance to the Attorney          General in 2005?” (Roberts: “3700.”)
  • “Do you know how many objections the Attorney General lodged?” (Verrilli: “There          was one in that year.”)
  •  “[D]o you know which State has the worst ratio of white voter turnout to African American voter turnout?” (Roberts: “Massachusetts.”)
  •  “[W]hat [state] has the best, where African American turnout actually exceeds white       turnout?” (Roberts: “Mississippi.”)
  •  “Which State has the greatest disparity in registration between white and African American?” (Roberts: “Massachusetts. Third is Mississippi, where again the African American registration rate is higher than the white registration rate.”)
  •  “[I]s it the government’s submission that the citizens in the South are more racist             than citizens in the North?”  (Verrilli: “It is not.”)

Roberts did not identify the source of his statistics, but afterwards the Massachusetts Secretary of State, William F. Galvin, and political scientists speculated that Roberts drew his conclusions from the U.S. Census Bureau’s “The Current Population Survey,” which collects information on voting and registration every other year. This data, however, should not be used in the way that Roberts did because of their large margins of error, as reported by Nina Totenberg of National Public Radio.

Indeed, Secretary Galvin said that Roberts’ assertion about Massachusetts and Mississippi is just plain wrong and that the only way that the Census Bureau source supports Roberts’ assertion is by including Massachusetts’ non-citizen blacks who are not entitled to vote. To do what Roberts did, according to Galvin, is “deceptive” and “a slur on black voters in Massachusetts.”

Nate Silver, the statistician, also criticizes Roberts’ trumpeting these figures about Mississippi and Massachusetts apparently to justify a conclusion that the Voting Rights Act provisions in question are no longer needed and, therefore, unconstitutional.

According to Silver, “If [Roberts] . . . meant to suggest that states covered by Section 5 consistently have better black turnout rates than those that aren’t covered by the statute, then his claim is especially dubious.” Moreover, says Silver, it is outright fallacious to conclude from this simple comparison of two states, however flawed the data, that the provisions of section 5 of the Voting Rights Act and the formula in section 4(b) are no longer needed. For example, such data say nothing about whether whatever gains have been made in racial minority voting “might be lost if the Section 5 requirements were dropped now.”

I also fault the Chief Justice for focusing on only one small piece of evidence, however flawed or subject to qualification. Instead, he should be focusing on fundamental principles of judicial restraint as repeatedly proclaimed by the U.S. Supreme Court itself and as cited by the D.C. Circuit in its opinion in this case.

These precedents emphasize that “Congress’s laws are entitled to a ‘presumption of validity’” and that “when Congress acts pursuant to its enforcement authority under the Reconstruction Amendments [including the Fifteenth Amendment], its judgments about ‘what legislation is needed . . . are entitled to much deference.‘“  Such deference is paid “‘out of respect for [Congress’] . . .  authority to exercise the legislative power,’” and in recognition that Congress “is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon legislative questions.” (Citations omitted.)[3]

Justice Antonin Scalia
Justice Antonin Scalia

Associate Justice Scalia also interrupted Solicitor General Verrilli to make this long statement:

  •  “This Court doesn’t like to get involved . . . in racial questions such as this one. It’s something that can be . . . left to Congress.
  • “The problem here, however, is . . . that the initial enactment of this legislation in a time when the need for it was so much more abundantly clear . . . in the Senate, . . . it was double-digits against it. And that was only a 5-year term. Then, it is reenacted 5 years later, again for a 5-year term. Double-digits against it in the Senate. Then it was reenacted for 7 years. Single digits against it. Then enacted for 25 years, 8 Senate votes against it.
  • “And this last enactment [in 2006], not a single vote in the Senate against it. And the House is pretty much the same.
  •  “Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is . . . very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes. I don’t think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity . . .  unless a court can say it does not comport with the Constitution.
  •  “You have to show, when you are treating different States differently, that there’s a good reason for it. That’s . . . the concern that those of us . . . who have some questions about this statute have. It’s . . .  a concern that this is not the kind of a question you can leave to Congress.
  •  “There are certain districts in the House that are black districts by law just about now. And even the Virginia Senators, they have no interest in voting against this. The State government is not their government, and they are going to lose . . . votes if they do not reenact the Voting Rights Act.
  •  “Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?”

These remarks are shocking and totally inconsistent with the Court’s long-established principles of judicial restraint mentioned above and with Justice Scalia’s persistently stated views about judicial interpretation of statutes.

Indeed, Scalia’s remarks provoked the Washington Post’s Editorial Board to proclaim that Scalia was in “contempt of Congress.” The editorial concluded with these words, “Congress, after careful review, came to an overwhelming conclusion that protection of the franchise in America is much improved but not guaranteed, especially in certain areas. We heard in . . . [the Supreme Court] argument no grounds for the court to claim superior wisdom on that question.”

 Conclusion

What is your opinion on how the Voting Rights Act issue should be resolved? Some argue for holding that provision unconstitutional.[4] Others agree with me that the provision should be upheld.[5]

I went to the University of Chicago Law School before Mr. Scalia was on the faculty, and I have never met him. By all reports, he is a brilliant man who is gracious and funny in social settings. But his comments in this and other Court arguments along with some of his opinions lead me to believe that life tenure for Supreme Court Justices and perhaps other federal judges causes at least some of them to believe that they are omniscient.

A possible solution to such arrogance, as I suggested in a comment to a prior post, is to amend  the U.S. Constitution to impose a term limit on U.S. Supreme Court Justices and perhaps other federal judges. All 50 states in the U.S. and all major nations have age or term limits for high-court judges. The International Criminal Court limits its judges to one term of nine years. Such limits are not seen as restrictions on the necessary independence of the judiciary.

The U.S. Constitution does not specifically grant life tenure to the justices or other federal judges. The Constitution merely says, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour . . . .” Paul Carrington, a Duke University law professor, has suggested that the “good Behaviour” provision was not intended to provide life-time appointments and that term limits could be imposed by statute.


[1]  This issue was phrased by the Supreme Court itself in granting review of the case. Previous posts have reviewed the Voting Rights Act of 1965; the Voting Rights Act of 2006; the prior Supreme Court case regarding the latter statute (Northwest Austin Municipal Utility District No. One v. Holder); and the decision of the U.S. Court of Appeals for the District of Columbia Circuit in the Shelby County case. The transcript of the recent Supreme Court arguments in Shelby County is available online as are the petitioner’s brief, the respondent’s brief for the U.S. Government and the reply brief for the petitioner in the case. Other briefs in the case for three intervenors, 19 amici curiae (friends of the court) supporting the petitioner and 28 amici curiae supporting the U.S. Government can also be found on the web. Excellent commentaries about the case are available on the respected scotusblog.

[2]  E.g., Liptak, Voting Rights Law Draws Skepticism from Justices, N.Y. Times (Feb. 27, 2013); Gerstein, 5 Takeaways from the Voting Rights Act arguments, Politico (Feb. 27, 2013).

[3] Roberts’ hostility to the Voting Rights Act apparently goes back to 1981 when as a young lawyer in the Department of Justice he was working on Reagan Administration efforts to weaken the Voting Rights Act.

[4]  E.g., Blum, The Supreme Court Can Update the Obsolete Voting Rights Act, W.S.J. (Feb. 24, 2013); Room for Debate: Is the Voting Rights Act Still Needed?, N.Y. Times (Feb. 27, 2013) (Shapiro; Pilder); Savage, Decision on Voting Law Could Limit Oversight, N.Y. Times (Feb. 28, 2013); Will, The Voting Rights Act stuck in the past, Wash. Post (Mar. 1, 2013).

[5] E.g., Room for Debate: Is the Voting Rights Act Still Needed?, N.Y. Times (Feb. 27, 2013) (Wydra; Charles & Fuentes-Rohwer; Garza; Smith), supra;  Savage, Decision on Voting Law Could Limit Oversight, N.Y. Times (Feb. 28, 2013), supra.