Panel debates social context of voting rights


If you thought the butterfly ballot was bad, consider the fare card for the Washington, D.C., metro. During a panel discussion Saturday on voting rights in the 21st Century, Prof. Heather Gerken described the problems the fare system reportedly caused Justice Sandra Day O’Connor when a storm forced her to take the metro to work. Angry commuters, Gerken said, were backed up, “yelling at her.”

Gerken offered this anecdote, which she attributed to the Washington Post, to help explain the court’s recent decision in Bush v. Gore. The Supreme Court Justices “are a sheltered group [with] no sense of what’s going on in the real world,” she said. Consequently, Gerken explained, the Justices tend to ignore the underlying social issues in voting rights cases and focus instead on technicalities such as whether ballots were filled out perfectly.

Gerken and the other speakers aimed to address the social context of voting rights issues more directly. The panel, which took place as part of the Harvard Black Law Students Association’s 18th Annual Spring Conference, “Am I My Brother’s Keeper? Social Responsibility at Home and Abroad,” discussed issues ranging from felon voting rights to the recent presidential election, the Census and the opportunities for minority voters to influence elections in a two-party system.

Moderator Milton Marquis, a partner at Jenner & Block who has worked previously in the Antitrust Division of the Department of Justice and in Virginia and Massachusetts state attorney general’s offices, launched the discussion with a provocative comment on Massachusetts’ referendum last fall to amend the state constitution to eliminate voting rights for incarcerated felons.

“I used to live in Massachusetts, so I was a bit disturbed to hear [that Massachusetts passed] an amendment to narrow a fundamental right” for the first time in its history, Marquis said.

In response, panelist Stephen Saloom, who is the Executive Director of the Criminal Justice Policy Coalition and Adjunct Professor of Criminal Justice at Suffolk University, noted that while Massachusetts had previously curtailed the voting rights of citizens convicted of electoral fraud, the referendum last fall was the first time the state limited “fundamental rights” of people who pose “no threat to democracy.”

The referendum was “simply an act of demagoguery,” Saloom said. “This was an attempt to score a couple of cheap political points …. It was disgusting, despicable, what happened.”

Saloom described the referendum as an act of discrimination against “an unpopular group.”

“It was so easy here,” he said. “The press didn’t probe too deeply, … the public was ill-informed.”

Saloom noted that even opponents withdrew from the debate for fear of undermining their credibility on other issues.

While many states restrict the voting rights of felons who have been released, Saloom said the Massachusetts referendum restricts voting rights only so long as felons remain incarcerated. He expressed doubt that Massachusetts will take further action to curtail felon rights. “Florida began to raise some questions for some folks,” Saloom said.

Marquis questioned Gerken about the effect of felon-voting limitations on the presidential election in Florida. Florida, which imposes a lifetime voting ban on all convicted felons, hired a contractor to “clean up its voting list” before the election. Rather than allow voters to file provisional ballots, the state required voters who had been mistakenly purged from voting lists to call a special phone number and resolve the problem before voting, Marquis said.

Gerken said this vote purging offers the “strongest case” for intentional discrimination during the Florida election. The state, Gerken explained, “used much more inclusive categories than necessary,” for instance, purging all people with a certain first and last name from a voting list if it couldn’t determine which middle name identified the felon it was looking for.

The outcome was particularly “sad,” Gerken said, in the context of a “hugely successful” get-out-the-vote drive by African-Americans in Florida. Many citizens voting for the first time encountered under-resourced polling booths, lines and poorly functioning voting machines, as well as purged voter lists, Gerken noted. “What was the lesson new voters learned?” she asked.

“The one silver lining of Bush v. Gore is the possibility of voting technology being fixed,” Gerken observed. Still, she said, “the fact that race and poverty are at the heart of this is being ignored in this debate.”

Panelists expressed concern that restrictions on voting by former felons may impede their reintegration following release from prison. “Society in the long-run will pay a price … for not fully integrating people into the society,” said Ozell Hudson, a civil rights lawyer who has served for the past 10 years as Executive Director of the Lawyers’ Committee for Civil Rights Under Law of the Boston Bar Association.

“If a person has done their time … they think, ‘OK, right or wrong, I’ve paid my debt to society,'” Hudson explained. He worries that former prisoners may feel less inclined to accept societal standards “if they feel they are being further punished.”

Saloom agreed. “Some may say, ‘That’s poppycock,'” he said. “But I think it’s very real.” He observed that many former felons may feel demoralized and alienated when, in addition to the limited opportunity they face on release from prison, they are told, “you’re not a citizen … you don’t have a say in how we do things.”

Panelists also criticized Census policies that count prisoners as citizens of the districts where they are incarcerated rather than the districts they come from. “Many people are being warehoused in rural suburban communities,” Hudson noted. Since federal assistance is often based on Census figures, Hudson said, the result is that suburban areas see aid increases while “prisoners’ own communities are being deprived.”

Hudson said he saw the issue as a matter of “bringing home the bacon” for political constituencies. Much as Massachusetts Democrats brought Boston the Big Dig and Southern Representatives won military bases for their states, Hudson explained, “in the Northeast, the prison-industrial complex is big business.” While economic deprivation is often an important cause of crime in inner-city neighborhoods, prison building creates jobs for “caretakers” in suburban areas, he said.

Hudson and Saloom suggested racial attitudes may have played a role in forming current policies on incarceration and disenfranchisement. Hudson noted that roughly one-third of 20- to 29-year-old African-American men are under “some type of criminal justice supervision.” He noted: “If it’s not intentional racism, [it] looks a lot like racism.”

Saloom speculated: “The face of crime is a person of color, probably a black man, in the minds of voters in Massachusetts.” If voters felt disenfranchisement could happen to them, he said, “they would be screaming, they would be jumping up and down. Instead, they see themselves as victims.”

Panelists expressed guarded optimism that minorities may be able to combat disadvantageous policies by exercising their voting rights. “The exercise of voting rights produces real power, real economic benefits,” Hudson said. He gave the example of a majority African-American community that was able improve prison conditions by wresting control from white voters during the civil rights movement.

Gerken observed: “The dilemma of black America is, in a two-party system, that the only way to make the Democratic Party pay attention is turnout.” She noted, however, that African-Americans have shown during the past two presidential elections that turnout can significantly affect election outcomes.

Panelists urged students to remain engaged with social and political issues.

“We’re all so cynical,” Gerken said. “But if everyone gets so cynical that they check out of the system … you never get close enough to the centers of power t
o make a difference.”

“The issue of justice was on your mind when you came to law school,” Saloom observed. “Do not bail on it all simply because you can’t do it as a career.”

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