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]
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.
[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).
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]
President Trump on September 24, 2019, issued Executive Order 13888, entitled “Enhancing State and Local Involvement in Refugee Resettlement” that required state and local governments to submit to the Department of State written consents for resettlement of refugees as a precondition for such resettlements.[1]
The deadline for providing those consents, however, has been confusing in the primary and secondary sources. But it now appears that the key date is January 21, 2020, which is the deadline for local refugee resettlement agencies to submit applications for funding of those efforts by the State Department’s Bureau of Population Refugees and Migrations (PRM) and that such funding applicants must submit to PRM such “consent letters from state and local officials on a rolling basis both before and after submission of their proposals.” (Emphasis added.) Thus, there is no explicit deadline for submitting the consents.[2]
List of Consenting State & Local Governments
PRM now is publishing on its website a list of state and local governments that have submitted letters of consent, copies of most of which are hyperlinked to the list.[3] However, there is no “as of” date for the PRM’s list which will be updated from time to time. In any event, here is the latest PRM list consolidated with lists from other sources identifying 34 states (15 Republican governors and 19 Democrat Governors) that have consented.[4]
Finally no state so far has affirmatively rejected such resettlements although there is no requirement to do so. Rejection is implicit if there is no affirmative consent.
Conclusion
Many of the current letters of consent contain inspiring words about welcoming refugees that will be discussed in a subsequent post while another post will cover religious justifications for welcoming refugees.
Now we wait to learn what the other 16 states (11 Republican (Alabama, Alaska, Florida, Georgia, Idaho, Maryland, Mississippi, Missouri, South Carolina, Texas and Wyoming) and 5 Democrat (California, Hawaii, Kentucky, Nevada and New York ) will do.
It should be noted, however, that the official website of New York’s Democrat Governor Andrew Cuomo on September 17, issued a statement criticizing the Trump Administration’s new lower cap on refugee admissions and saying, “We believe that our diversity is our greatest strength, and we are proud to be home to refugees across the state who are breathing new life into their communities as members of the family of New York. While President Trump undermines the values that built this state and this nation, New York will always welcome immigrants and refugees with open arms.”[6]
[2] State Dep’t, Bureau of Population, Refugees, and Migration (PRM), FY 2020 Notice of Funding Opportunity for Reception and Placement Program, Funding Opportunity Number: SFOP0006252 (Nov. 6, 2019) FY2020 R&P FINAL NOFO.
[5] It appears that Texas is on the PRM list only because Bexar County has submitted a consent. On December 26, 2019, a Texas newspaper reported that Texas Governor Greg Abbott has not submitted such a consent letter and that his spokesman “did not return multiple calls, texts, and emails seeking comment.” On the other hand, “Mayors and county leaders of all Texas’ biggest cities —including Houston, San Antonio, Dallas and Austin — sent letters opting in,” but those consents are effective only if the state consents. (Kriel, Trump give states power to admit refugees. As other GOP governors sign on, Abbott is silent, Houston Chronicle (Dec. 26, 2019).)
This blog consistently has advocated the need for more immigrants in the U.S., especially in those states, mainly rural, with declining and aging populations.[1] Several recent articles have emphasized difficulties in pursuing such a goal.
Northern New England has an aging, declining and overwhelmingly white population in a “huge collection of very, very small towns.” These states—New Hampshire, Vermont and Maine—therefore, need new residents, including immigrants.
A major obstacle to attracting new residents is the presence of the huge presence of whites. The reasons for this white population “stem from a variety of factors, including a lack of big urban areas, where jobs are more plentiful, [where] a wider range of housing is available and [where] cultural differences are a little more accepted than in smaller places.”
According to Peter Francese, a demographic analyst based in Exeter, N.H., “’Housing is at the core of why there aren’t more immigrants — there’s no place for them. An ethnic person who wants to come in with a family of four or five people is not going to find a home they can afford, and there’s almost no rental housing whatsoever.’ In addition, Northern New England has the nation’s highest concentration of second homes, making the housing market especially tight.”
In addition, he said, “much of any newer housing is only for people 55 or older. If developers built housing for younger people, they would likely have children, which means a need for schools, which means higher property taxes — anathema in a place like New Hampshire, which has no income tax.”
Some New Hampshire residents came up with the following ways the state could enhance its ability to draw people of different backgrounds: “a better understanding of licensing and skills that refugees bring with them so they could more easily work here; a system of rewarding businesses that hire a more diverse array of workers; a central location with a database, speakers’ bureau and training opportunities that could help companies understand what ‘diversity and inclusion’ means and how it could benefit them; and a focus on keeping workers as much as hiring them in the first place, since many leave after finding the state inhospitable.”
A possible solution to the woes of Northern New England is a new program, Welcome Home, which is sponsored by the International Rescue Committee, a nongovernmental organization that globally provides services to displaced people, and TripAdvisor and which has started in New York City and Northern California. This program seeks to provide refugees “an understanding of where they now live and help them integrate into their new communities.[3]
Some Whites’ Difficulties in Adjusting to Minority Status
There is a need for everyone to have understanding and empathy for some white persons who are thrust into a situation in the U.S. where they are now in the minority.
This was the theme of a sensitive article about Heaven Engle, a 20-year old white woman who does not know the Spanish language while working in a rural chicken plant where virtually all of the other workers are Latina or Latino who do not speak English. During the work-day she often feels lonely, alienated and frustrated. She also feels threatened. This takes place in Fredericksburg, Pennsylvania, with a mainly white and conservative population of 1,500, isolated in Lebanon County, population 140,000, which is becoming more Hispanic.[4]
This young white woman’s perspective ties in with a column about U.S. “racialized” politics by David Leonhardt, a former Washington bureau chief for the New York Times. He asserts, “American politics have become more racialized over the last decade. Over the long term, that trend will probably help the Democrats — the party of the country’s growing demographic groups. In the short term, though, it presents some real risks.” (Emphasis added.)
“Many white Americans,” he continues, “felt threatened by both . . .[Obama’s] election and the country’s increasing diversity.” Then “Trump ran the most race-obsessed campaign in decades . . . . [and] won the White House, thanks largely to a surge in white support across the upper Midwest, the Florida panhandle and elsewhere.”
Now “Trump and other top Republicans have made clear that they plan to continue their racialized strategy. They evidently think it’s their best chance to win elections. Cynical as their approach is, they may be right.” Why? “About 68 percent of the voting-age citizen population is white non-Hispanic. . . . and “these whites vote more often than nonwhites.” Moreover, “when white people are frequently reminded of their racial identity, they tend to become more politically conservative.”
On October 9, nine U.S. governors sent a letter to congressional leaders calling for decisive steps to open up trade with Cuba and put an end to the embargo.[1]
They expressed their “support for an end to current trade sanctions levied against Cuba. It is time for Congress to take action and remove the financial, travel, and other restrictions that impede normal commerce and trade between our nation and Cuba.”
Federal legislation in 2000,“ they stated, “allowed for the first commercial sales of food and agricultural products from the U.S. in nearly half a century.” Since then “Cuba has become an important market for many American agricultural commodities. Thus far, our country’s agriculture sector has led the way in reestablishing meaningful commercial ties with Cuba, but a sustainable trade relationship cannot be limited to one sector or involve only one-way transactions.”
Nevertheless, the Governors added, “financing restrictions imposed by the embargo limit the ability of U.S. companies to competitively serve the Cuban market. Our thriving food and agriculture sectors coupled with Cuba’s need for an affordable and reliable food supply provide opportunities for both our nations that could be seized with an end to the remaining trade restrictions. Foreign competitors such as Canada, Brazil, and the European Union are increasingly taking market share from U.S. industry, as these countries do not face the same restrictions on financing.”
“Ending the embargo will create jobs here at home, especially in rural America, and will create new opportunities for U.S. agriculture. Expanding trade with Cuba will further strengthen our nation’s agriculture sector by opening a market of 11 million people just 90 miles from our shores, and continue to maintain the tremendous momentum of U.S. agricultural exports, which reached a record $152 billion in 2014.”
In addition, “bilateral trade and travel among citizens of both nations will engender a more harmonious relationship between the U.S. and Cuba, while providing new opportunities for U.S. interests to benefit economically from improved relationships. The benefits of fully opening Cuba to free market trading with the U.S. go beyond dollars and cents. This positive change in relations between our nations will usher in a new era of cooperation that transcends business. Expanded diplomatic relations, corporate partnerships, trade and dialogue will put us in a better position to boost democratic ideals in Cuba. This goal has not been achieved with an outdated strategy of isolation and sanctions.”
“While normalized trade would represent a positive step for the U.S. and Cuban economies, we appreciate and support the Administration’s executive actions taken thus far to expand opportunity in Cuba and facilitate dialogue among both nations. We now ask that you and your colleagues in the U.S. House of Representatives and Senate take decisive steps to support U.S. commerce and trade relations and fully end the embargo on Cuba.”
The letter is signed by Governors Robert Bentley (Rep., AL), Jerry Brown (Dem. CA), Butch Otter (Rep., ID), Mark Dayton (Dem.MN), Steve Bullock (Dem., MT), Thomas Wolf (Dem., PA), Peter Shumlin (Dem., VT),Terry McAuliffe (Dem., VA) and Jay Inslee (Dem., WA).
International law regarding voting is found in the International Covenant on Civil and Political Rights (ICCPR or Covenant) that was approved and adopted by the United Nations General Assembly on December 16, 1966. The drafting of the treaty was the work of the U.N. Commission on Human Rights, in which the U.S. participated.[1]
The Covenant’s Terms and Parties
This Covenant establishes an international minimum standard of governmental conduct for rights of self-determination; legal redress; equality; life; liberty; freedom of movement; fair, public and speedy trial of criminal charges; privacy; freedom of expression, thought, conscience and religion; peaceful assembly; freedom of association; family; and participation in public life. The Covenant forbids “cruel, inhuman or degrading treatment or punishment;” slavery; arbitrary arrest; double jeopardy; and imprisonment for debt.
Article 25 (b) of this treaty states, “Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 [race, colour [sic], sex, language, religion, political or other opinion, national or social origin, property, birth or other status] and without unreasonable restrictions: To vote and to be elected 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.” (Emphasis added.)
On June 8, 1992, the U.S. finally became a party to the treaty, nearly 26 years after the Covenant had been approved by the U.N. The U.S. accession to the treaty was subject to five reservations, five understandings, four declarations and one proviso. Potentially relevant to the issue of voting rights for felons are the U.S. understandings that (1) distinctions based on . . . other status [felon?] are permissible if rationally related to a legitimate governmental objective; . . . (3) certain practices concerning accused and convicted individuals were preserved; . . . and (5) the obligation of the U.S. federal government to enforce the Covenant in the federal system were limited.”[2]
Earlier (on March 23, 1976), the Covenant had gone into force, in accordance with its Article 49(1), after 35 states had ratified or acceded to the treaty. Now there are 168 states parties to the Covenant.
The Covenant’s Human Rights Committee
Article 28 of this treaty establishes a Human Rights Committee that is empowered under Article 40 to receive, analyze and comment on periodic reports from parties to the treaty regarding their compliance with its provisions, and the Committee may also issue authoritative “general comments” about the treaty.
The Committee’s General Comment No. 25 Regarding Voting Rights
On August 27, 1996, the Committee issued its General Comment No. 25: “The right to participate in public affairs, voting rights and the right of equal access to public service.”
It stated, in part, “The right to vote at elections and referenda must be established by law and may be subject only to reasonable restrictions, such as setting a minimum age limit for the right to vote. It is unreasonable to restrict the right to vote on the ground of physical disability or to impose literacy, educational or property requirements. Party membership should not be a condition of eligibility to vote, nor a ground of disqualification.” (Para. 10) (Emphasis added.)
The Comment added, “In their reports, States parties should indicate and explain the legislative provisions which would deprive citizens of their right to vote. The grounds for such deprivation should be objective and reasonable. If conviction for an offence [sic] is a basis for suspending the right to vote, the period of such suspension should be proportionate to the offence [sic] and the sentence. Persons who are deprived of liberty but who have not been convicted should not be excluded from exercising the right to vote.” (Para. 14)
Proceedings Regarding the Most Recent U.S. Report to the Committee[3]
The U.S. Report to the Committee.
The U.S. has submitted four periodic reports to the Committee, most recently on December 30, 2011, which stated the following with respect to voting rights:
“Criminal conviction and mental incompetence. The Fourteenth Amendment to the United States Constitution explicitly recognizes the right of states to bar an individual from voting ‘for participation in rebellion, or other crime.’ Accordingly, most states deny voting rights to persons who have been convicted of certain serious crimes. The standards and procedures for criminal disenfranchisement vary from state to state. In most states, this inability to vote is terminated by the end of a term of incarceration or by the granting of pardon or restoration of rights.” (Para. 457) (Emphasis added.)
“Felony disenfranchisement is a matter of continuing debate in the states of the United States. It has been criticized as weakening our democracy by depriving citizens of the vote, and also for its disproportionate affects on racial minorities. As noted in the Second and Third Periodic Report, in August 2001 the National Commission on Federal Election Reform, chaired by former Presidents Carter and Ford, recommended that all states restore voting rights to citizens who have fully served their sentences. At the time of the previous report, a number of states had moved to reduce the scope of felony disenfranchisement or otherwise to facilitate the recovery of voting rights for those who can regain them.” (Para. 458) (Emphasis added.)
“Since the submission of the Second and Third Periodic Report in 2005, modification of state laws and procedures has continued. For example, in 2005, the Governor of Iowa issued an executive order eliminating lifetime disenfranchisement for persons convicted of an “infamous crime” and making restoration of voting rights automatic for persons completing their sentences. This order, however, was revoked by a successor Governor in 2011. Also in 2005, the legislature in Nebraska repealed its lifetime ban on voting for all felons and replaced it with a 2-year post-sentence ban. In 2006, Rhode Island voters approved a referendum to amend the state’s constitution to restore voting rights to persons currently serving a sentence of probation or parole. In 2006, the Tennessee legislature amended its complex restoration system to provide a more straightforward procedure under which all persons convicted of felonies (except electoral or serious violence offenses) are now eligible to apply for a ‘certificate of restoration’ upon completion of their sentences. In 2007, the Maryland legislature repealed all provisions of the state’s lifetime voting ban and instituted an automatic restoration policy for all persons upon completion of a sentence.” (Para. 459)
“In 2009, the Washington state legislature enacted the Washington Voting Rights Registration Act, which eliminates the requirement that persons who have completed their felony sentences pay all fees, fines and restitution before being allowed to vote. Florida, however, toughened its laws in March 2011, banning automatic restoration of voting rights for all convicted felons. Currently 48 states restrict voting by persons convicted of felonies in some manner; further information on felony disenfranchisement can be found in the Common Core Document.” (Para. 459)
“In July 2009, a bill entitled the Democracy Restoration Act of 2009 was introduced in both the Senate (S. 1516) and the House of Representatives (H.R. 3335). This bill would establish uniform standards restoring voting rights in elections for federal office to Americans who are no longer incarcerated but continue to be denied their ability to participate in such elections. A hearing on H.R. 3335 was held in the House of Representatives on March 16, 2010, but the bills did not proceed further. This legislation has been reintroduced in the House in the 112th Congress (H.R. 2212).” (Para. 460)[4]
The Committee’s List of Issues for the U.S.
On April 29, 2013, the Committee issued its “List of issues” for response by the U.S. Its paragraph 26(a) stated, “Please provide information on: (a) The rationale for prohibiting persons with felony convictions from voting in federal elections once they have completed their sentence. Please provide information on steps taken to ensure that states restore voting rights to citizens who have fully served their sentences and those who have been released on parole. Please also provide information on the extent that the regulations relating to deprivation of votes for felony conviction impact on the rights of minority groups.” (Emphasis added.)
U.S. Replies to the Committee’s List of Issues
On July 5, 2013, the U.S. submitted its replies to the Committee’s list of issues. In paragraph 128, the U.S. stated, “The U.S. Constitution generally provides that governments of the individual states, not the U.S. Congress, determine who is eligible to vote in their state. Congress has the power to regulate elections for federal offices and has constitutional authority to eradicate discrimination in voting through the Fourteenth and Fifteenth Amendments. According to the Brennan Center of NYU Law School, 48 states restrict voting by persons convicted of felony offenses in some manner, although the majority of these states provide for restoration of voting rights to felons who have been released from prison and/or are no longer on parole or probation. A few states prohibit felons from voting for life. Legal challenges alleging that state felon disenfranchisement laws violate either the U.S. Constitution’s non-discrimination principle or other federal voting rights statutes have generally not succeeded absent proof of racially discriminatory purpose.” (Emphasis added.)
U.S. Attorney General’s Statement About Felony Disenfranchisement
Attorney General Eric Holder
Outside the context of the Committee’s review of the U.S. report, on February 11, 2014, U.S. Attorney General Eric Holder made extensive and powerful comments regarding felony disenfranchisement in his speech, “Criminal Justice Reform,” at Georgetown University Law Center. He said the following:
“[W]e’ve seen that maintaining family connections, developing job skills, and fostering community engagement can reduce the likelihood of re-arrest. And we know that restoring basic rights – and encouraging inclusion in all aspects of society – increases the likelihood of successful reintegration. We’ve taken significant steps forward in improving reentry policies and addressing the unintended collateral consequences of certain convictions.”
“Yet formerly incarcerated people continue to face significant obstacles. They are frequently deprived of opportunities they need to rebuild their lives. And in far too many places, their rights – including the single most basic right of American citizenship – the right to vote – are either abridged or denied.”
“As the Leadership Conference Education Fund articulated very clearly in . . . [its] recent report, ‘there is no rational reason to take away someone’s voting rights for life just because they’ve committed a crime, especially after they’ve completed their sentence and made amends.’ On the contrary: there is evidence to suggest that former prisoners whose voting rights are restored are significantly less likely to return to the criminal justice system. As . . . [this] report further notes, a study recently conducted by a parole commission in Florida found that, while the overall three-year recidivism rate stood at roughly 33 percent, the rate among those who were re-enfranchised after they’d served their time was just a third of that.”
“Unfortunately, the [Florida] re-enfranchisement policy that contributed to this stunning result has been inexplicably and unwisely rolled back since that study was completed. And, in other states, officials have raised hurdles to be faced by those with past convictions seeking to regain their access to the ballot box. And that’s why I believe that . . . [it] is time to fundamentally reconsider laws that permanently disenfranchise people who are no longer under federal or state supervision.”
“These restrictions are not only unnecessary and unjust, they are also counterproductive. By perpetuating the stigma and isolation imposed on formerly incarcerated individuals, these laws increase the likelihood they will commit future crimes. They undermine the reentry process and defy the principles – of accountability and rehabilitation – that guide our criminal justice policies. . . . At worst, these laws, with their disparate impact on minority communities, echo policies enacted during a deeply troubled period in America’s past – a time of post-Civil War repression. And they have their roots in centuries-old conceptions of justice that were too often based on exclusion, animus, and fear.”
“The history of felony disenfranchisement dates to a time when these policies were employed not to improve public safety, but purely as punitive measures – intended to stigmatize, shame, and shut out a person who had been found guilty of a crime. Over the course of many decades – court by court, state by state – Americans broadly rejected the colonial-era notion that the commission of a crime should result in lifelong exclusion from society.”
“After Reconstruction, many Southern states enacted disenfranchisement schemes to specifically target African Americans and diminish the electoral strength of newly-freed populations. The resulting system of unequal enforcement – and discriminatory application of the law – led to a situation, in 1890, where ninety percent of the Southern prison population was black. And those swept up in this system too often had their rights rescinded, their dignity diminished, and the full measure of their citizenship revoked for the rest of their lives. They could not vote.”
“Yet – despite this remarkable, once-unimaginable [civil rights] progress – the vestiges, and the direct effects, of outdated practices remain all too real. In many states, felony disenfranchisement laws are still on the books. And the current scope of these policies is not only too significant to ignore – it is also too unjust to tolerate.”
“Across this country today, an estimated 5.8 million Americans – 5.8 million of our fellow citizens – are prohibited from voting because of current or previous felony convictions. That’s more than the individual populations of 31 U.S. states. And although well over a century has passed since post-Reconstruction states used these measures to strip African Americans of their most fundamental rights, the impact of felony disenfranchisement on modern communities of color remains both disproportionate and unacceptable.”
“Throughout America, 2.2 million black citizens – or nearly one in 13 African-American adults – are banned from voting because of these laws. In three states – Florida, Kentucky, and Virginia – that ratio climbs to one in five. These individuals and many others – of all races, backgrounds, and walks of life – are routinely denied the chance to participate in the most fundamental and important act of self-governance. They are prevented from exercising an essential right. And they are locked out from achieving complete rehabilitation and reentry – even after they’ve served the time, and paid the fines, that they owe.”
“Fortunately . . . in recent years we have begun to see a trend in the right direction. Since 1997, a total of 23 states – including Nebraska, Nevada, Texas, and Washington State – have enacted meaningful reforms. In Virginia, just last year, former Governor McDonnell adopted a policy that began to automatically restore the voting rights of former prisoners with non-violent felony convictions.”
“These are positive developments. But many of these changes are incremental in nature. They stop well short of confronting this problem head-on. And although we can be encouraged by the promising indications we’ve seen, a great deal of work remains to be done. Given what is at stake, the time for incrementalism is clearly over.”
“Eleven states continue to restrict voting rights, to varying degrees, even after a person has served his or her prison sentence and is no longer on probation or parole – including the State of Florida, where approximately 10 percent of the entire population is disenfranchised as a result. In Mississippi, roughly 8 percent of the population cannot vote because of past involvement with the criminal justice system. In Iowa, action by the governor in 2011 caused the state to move from automatic restoration of rights – following the completion of a criminal sentence – to an arduous process that requires direct intervention by the governor himself in every individual case. It’s no surprise that, two years after this change – of the 8,000 people who had completed their sentences during that governor’s tenure – voting rights had been restored to fewer than 12.”
“That’s moving backwards – not forward. It is unwise, it is unjust, and it is not in keeping with our democratic values. These laws deserve to be not only reconsidered, but repealed. And so today, I call upon state leaders and other elected officials across the country to pass clear and consistent reforms to restore the voting rights of all who have served their terms in prison or jail, completed their parole or probation, and paid their fines.”
“And I call upon the American people – who overwhelmingly oppose felony disenfranchisement – to join us in bringing about the end of misguided policies that unjustly restrict what’s been called the ‘most basic right’ of American citizenship.”
The “inconsistent patchwork of laws affecting felony disenfranchisement varies so widely between states – and, in some places, between cities and counties – that even those who administer the laws are sometimes unfamiliar with how to apply them. The New York Times noted in 2012 that this kind of confusion means that many who are legally allowed to vote erroneously believe that their rights are restricted. And too often, those who do understand their rights are wrongfully turned away.”
“[P]ermanent exclusion from the civic community does not advance any objective of our criminal justice system. It has never been shown to prevent new crimes or deter future misconduct. And there’s no indication that those who have completed their sentences are more likely to commit electoral crimes of any type – or even to vote against pro-law enforcement candidates.
“What is clear – and abundantly so – is that these laws sever a formerly incarcerated person’s most direct link to civic participation. They cause further alienation and disillusionment between these individuals and the communities . . . . And particularly at a time when our prisons are overflowing – and many who are serving sentences for nonviolent drug crimes find themselves trapped in a vicious cycle of poverty and incarceration – it is counterproductive to exclude these individuals from the voting franchise once their involvement with the corrections system is at an end. It is contrary to the goals that bring us together today.”
“Whenever we tell citizens who have paid their debts and rejoined their communities that they are not entitled to take part in the democratic process, we fall short of the bedrock promise – of equal opportunity and equal justice – that has always served as the foundation of our legal system. So it’s time to renew our commitment – here and now – to the notion that the free exercise of our fundamental rights should never be subject to politics, or geography, or the lingering effects of flawed and unjust policies.”
Committee’s Hearings
At a Committee hearing on March 14, 2014, an U.S. representative (Roy Austin, Jr., Deputy Assistant Attorney General, Civil Rights Division, Department of Justice) said, “Persons convicted of crimes were not necessarily informed before sentencing that they would lose their right to vote.“
Austin also stated later at that hearing, “There was no national guarantee ensuring that defendants and prisoners were made aware of the loss of the right to vote. However, in practice, whenever defendants took a plea or were sentenced, they were informed of the fact that they would lose certain constitutional rights. Furthermore, the American Bar Association had launched a website entitled the National Inventory on the Collateral Consequences of Conviction as part of an effort to help defence [sic] lawyers fully inform their clients of, inter alia, any rights they would lose as the result of a conviction for a crime.”
Committee’s Concluding Observations
After reviewing all of the records regarding the U.S. report,[5] the Committee on March 26, 2014, adopted its Concluding Observations. Here is what it said in paragraph 24 about U.S. voting rights.
“While noting with satisfaction the statement by the Attorney General on 11 February 2014, calling for a reform of state laws on felony disenfranchisement, the Committee reiterates 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 is further concerned that voter identification and other recently introduced eligibility requirements may impose excessive burdens on voters and result in de facto disenfranchisement of large numbers of voters, including members of minority groups. Finally, the Committee reiterates its concern that residents of the District of Columbia (D.C.) are denied the right to vote for and elect voting representatives to the United States Senate and House of Representatives (arts. 2, 10, 25 and 26)”
“The State party 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; remove or streamline lengthy and cumbersome voting restoration procedures; as well as review automatic denial of the vote to any imprisoned felon, regardless of the nature of the offence. The State party should also take all necessary measures to ensure that voter identification requirements and the new eligibility requirements do not impose excessive burdens on voters and result in de facto disenfranchisement. The State party should also provide for the full voting rights of residents of Washington, D.C.” (Emphasis in original.)
This very polite language is the way the Committee was saying the U.S. was not complying with the Convention’s provisions regarding voting.[6]
Conclusion
The U.S. problem of felon disenfranchisement still persists. The previously mentioned proposed federal Democracy Restoration Act has not been adopted. Only two states (Maine and Vermont) do not have any restrictions on voting by citizens convicted of a felony. Thirteen states and the District of Columbia restore voting after completion of the term of incarceration; four states, after incarceration and parole; 20 states, after incarceration and parole and probation. The other 11 states permanently ban voting by felons under certain conditions. In addition 10 states restrict some people convicted of misdemeanors from voting.
Therefore, the U.S. is not complying with the Convention’s provisions regarding voting.
[1] Weissbrodt, Ni Aoláin, Fitzpatrick & Newman, International Human Rights: Law, Policy, and Process at 141-43 (4th ed. LEXIS-NEXIS 2009). The Covenant is baed upon the Universal Declaration of Human Rights of 1948, which states in Article 21(3), “The will of the people shall be the basis of the authority of government, this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage . . . .”
[2] The long, convoluted history of the U.S. accession to the Covenant is discussed in a prior blog post.
[3] The most recent Committee’s consideration of the U.S. human rights record has been discussed in prior posts about the Committee’s hearings, its concluding observations and felon voting. The actual U.S. report, the list of issues, the U.S. replies to that list of issues, a summary of the hearings, the submissions from Civil Society Organizations and the concluding observations are available on the Committee’s website.
[4] The Democracy Restoration Act also was introduced in the Senate (S. 2017) in the 112th Congress, but it died in committees in both chambers.
[5] The record included several hundred submissions from Civil Society Organizations. Felony disenfranchisement was addressed by at least one such submission: the one from the American Civil Liberties Union, the ACLU of Florida, the Lawyers’ Committee for Civil Rights under Law, the Leadership Conference, the NAACP, the NAACP Legal Defense Fund and the Sentencing Project. It argued that U.S. felony disenfranchisement laws had a disproportionate impact on minorities, and it reviewed the history and rationale of such laws, the increasing international isolation of the U.S. on such laws, the terms of such laws and the legal challenges to such laws. This submission also criticized the U.S. reply to this issue on the Committee’s list of issues and suggested recommendations for the Committee to make to the U.S.
[6] Another treaty to which the U.S. is not a party–the Protocol 1 to the European Convention on the Protection of Human Rights and Fundamental Freedoms–has been interpreted to ban national laws that “applied automatically to convicted prisoners in detention, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence [sic] and their individual circumstances.” This was the decision in 2005 by the European Court of Human Rights, which said “the severe measure of disenfranchisement was not to be resorted to lightly and the principle of proportionality required a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned. “ (Hirst v. United Kingdom, 2005-IX Reports of Judgments & Decisions 195 (Eur. Ct. Hum. Rts. 2005),}
Problems exist with the present U.S. voting systems and procedures. Here are just a few:
In the November 2012 general election, many states that were controlled by Republican state legislatures and governors adopted various measures that, in my opinion, were intended to suppress voting by U.S. citizens, including minorities, who were deemed likely to vote for Democratic candidates.
Late this June the U.S. Supreme Court invalidated an important provision of the Voting Rights act of 2006. [1]
Immediately after that Supreme Court decision, some states–most notably Texas [2] and North Carolina–have moved to implement or adopt restrictive voting laws. [3]
This blog has criticized these efforts to restrict voting and that Supreme Court decision. This blog also has proposed ways to expand voting in this country, many of which have been voiced as well by Norman Ornstein, author and Resident Scholar at the American Enterprise Institute.[4]
Here are my suggestions for a new federal Voting Rights Act.
First, every U.S. citizen entitled to vote.
That includes all citizens who have been convicted of felonies and who are still in prison and those who have served their sentences. They are human beings who have interests and opinions, and they have unique experiences of life inside our prisons, which are often neglected in the political debate about allocation of resources.
Now only two states (Maine and Vermont) impose no voting restrictions on felons or ex-felons. Other states impose various restrictions, with 12 states (six in the South) banning ex-felons from voting even after they have completed prison and probation or parole. As a result, an estimated 5.9 million citizens are disenfranchised on this basis, about one-fourth of whom are still in prison. Because 38.2% of these people are African-American, it is also a racial justice issue.
The electorate also should include all children. They too are human beings with interests that should be reflected in elections. This is especially true in an electorate in which older citizens tend to vote in higher percentages and naturally have an interest in programs and services that benefit them. I am a member of the older group and yet believe our political influence needs to be counterbalanced by the voices of the youngest. Creation of a voting system to allow all children to vote would require a lot of careful consideration of how this could be accomplished. It presumably would have parents or guardians voting for their children through a certain age such as 16 or 18.[5]
Second, every U.S. citizen required to vote.
Every citizen should be required to vote at least in national elections.
This is true in many countries so it can be done. Such a system, I believe, would have the beneficial effect of causing political parties and candidates to appeal to voters in the middle of the political spectrum and thereby combat the polarization of our political system. Again, creation of such a system would require careful consideration of how that could be done.
Ornstein and Thomas E. Mann have made such a proposal. One means of enforcing such a law, they say, would be a modest fine, say $15, for failure to vote with increased amounts for repeated failures. Another way would be to provide a small tax credit for voting.
Third, no racial discrimination in voting.
Using the language of the Voting Rights Act of 2006, forbid any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.”
Fourth, simplified voting laws and procedure.
To make it easier to vote, Ornstein and Mann offer the following suggestions:
a. A new voter registration regime. Ornstein asserts, “eligible citizens should be presumed registered.” Allow online registration and transfer of such records when the voter moves to a new home by sharing data with private databases. Allow “same-day voter registration available for those not registered via their draft registration or driver’s license. Ideally, Congress would provide the funds to modernize voter registration lists and create a 21st-century voting process in which voters could get personalized ballots printed, with all the offices they are eligible to vote on, at any polling place in their vicinity. Why shouldn’t Americans be able to vote at any nearby polling center?”
b. More easily accessible polling places. Use facilities in or near shopping centers or arenas.
c. Weekend Election “Day.” As Ornstein says, “’Election Day’ should suit contemporary American life: a 24-hour period from noon Saturday to noon Sunday, with early voting the week before. This would eliminate ‘rush-hour’ backlogs early in the morning and at the end of the day, as well as Sabbath problems. If Wal-Mart can stay open 24/7, our democracy can stay open 24 hours once every two years.”
d. Social Security cards as valid voter IDs. Any U.S. citizen, Ornstein asserts, “who can provide proof of a valid Social Security number should be able to obtain, free, a Social Security card with a photo. It should be mandated as acceptable for identification wherever a photo ID is required to vote. Such cards should be available not just at Social Security offices but also at post offices.”
e. Uniform separate federal election ballot. Finally, Ornstein believes “Congress has the clear constitutional right to manage federal elections. A separate ballot for federal races strengthens that control. Other advantages include no more confusing butterfly ballots; there would be no more than three races (president, Senate and House) on a federal ballot. No more provisional ballots or access denied if someone shows up at the wrong polling place; the vote would still count only for those federal offices.”
Conclusion
These voting changes would help make the federal government more accountable to the citizens. Other changes to aid in this effort have been suggested in this blog: certain constitutional changes, elimination of the U.S. Senate’s filibuster rule and reforming the system for creating new congressional districts after the decennial census.
[1] Former Supreme Court Justice John Paul Stevens has criticized the Court’s decision invalidating a provision of the Voting Rights Act.
[2] On July 25th the Department of Justice sued the State of Texas to ask a federal court to require Texas to get permission from the federal government before making voting changes. The suit is based upon section 3 of the Voting Rights Act of 2006 which allows such relief if the Government shows that the jurisdiction has committed constitutional violations with respect to voting. Richard H. Pildes, a New York University professor said, “If this strategy works, it will become a way of partially updating the Voting Rights Act through the courts.” A Washington Posteditorial endorsed this approach while also calling on Congress to enact a new statutory formula for comprehensive coverage of states for such preclearance. An editorial in the New York Timesalso supports this approach as does Washington Post columnist E. J. Dionne, Jr.
[3] New York Times columnist, Charles Blow, points out that almost all of the states that were covered by the Voting Rights Act provision that was invalidated are Republican-controlled and are now wasting “no time . . . to institute efforts to suppress the vote in the next election and beyond.”
4] Thomas E. Mann & Norman J. Ornstein, It’s Even Worse Than It Looks: How the American Constitutional System Collides with the New Politics of Extremism (Basic Books; New York 2012); Ornstein, Let’s enact a new Voting Rights Act, Wash. Post (July 17, 2013).
