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Editorial: Vote in jail? Bill increases the heat more than the light

Assemblywoman Shirley Weber (D-San Diego), bottom left, speaks on the State Assembly floor in Sacramento.
(Los Angeles Times)

Should felons be allowed to vote behind bars? The question is a kind of Rorschach test that reveals attitudes and assumptions about criminal punishment, constitutional rights, justice, race and the very purpose of imprisonment. Those who would answer “no” might be shocked that the question is even asked, and might cite many historical precedents for felon disenfranchisement dating back at least to ancient Athens.

The thinking behind disenfranchisement is that a criminal who has violated society’s rules loses his membership and the powers and privileges that go with it. There is no right to keep and bear arms in jail, no right to serve on juries, and at most a greatly diminished right to be free of search or seizure in a jail cell. Courts have found the forfeiting of these rights — and the forfeiting of voting rights — to be constitutional.

Those who would instead answer “yes” to voting rights behind bars are generally just as adamant about their positions and offer their own historical citations, including the long history in which many U.S. states, particularly former members of the Confederacy, used disenfranchisement as a tool for racial suppression. African Americans were disproportionately targeted for criminal prosecution and punishment — and consequently lost much of whatever voting power the states left to them.

By contrast, inmates in Maine and Vermont are permitted to vote while locked up and the practice does not appear to have had any corrosive effect on those societies. Besides, proponents of jail voting argue, it’s not as if anyone who would otherwise commit a crime decides not to go through with it simply for fear of losing the vote. Disenfranchisement has no value as a deterrent and plays no role in keeping the law-abiding safe. Its sole purpose is to punish — and we already do that when we take away the convicted criminal’s liberty.

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Even in jail, inmates retain other basic constitutional rights. They can practice their religion, even if it means getting special meals not available to others or getting exemptions from rules against beards or long hair. They retain some 1st Amendment rights to communicate among themselves and with the outside world. They keep their right to equal protection and due process. Why should they automatically lose their right to vote?

It’s a question guaranteed to start an argument, or at least a vigorous discussion — and that’s especially the case now, during an unusual presidential campaign and during a time of tense and fractious debate over criminal justice reform, public safety, policing and race.

The question is receiving particular attention in California because of a proposal by Democratic Assemblywoman Shirley Weber, who represents a portion of San Diego County. Assembly Bill 2466 would allow some felony inmates to vote.

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In many states even today, felons are disenfranchised permanently, even after they have done their time.

Let’s first make clear what the bill is not, and what it would not do.

It has nothing to do with restoring voting rights to convicted criminals who have already done their time. Thankfully, that’s not an issue in California, where since 1976 convicted felons have their rights automatically reinstated after their sentences have run and their parole has expired. That makes sense. People who have paid for their crimes return to society as citizens and ought to get back whatever rights had been suspended.

If only it worked that way everywhere. In many states even today, felons are disenfranchised permanently, even after they have done their time. Many states now controlled by Republicans resist the franchise for released felons because they believe voting rights for former inmates, a disproportionate number of them black, would help Democrats at the polls.

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Weber’s bill would not affect people serving time for misdemeanors because they don’t lose their right to vote. Nor would it affect the vast majority of people locked up in county jails, most of whom haven’t been convicted of anything but are awaiting trial or other proceedings. Those prisoners already can vote — if they can obtain, mark and return their vote-by-mail materials on time.

Nor would it affect people serving time in state prison for felony convictions.

AB 2466 would apply to one particular and fairly narrow swath of people — those convicted of less serious felonies who since 2011 have been serving their time in county jails in order to ease prison crowding.

Last year, Secretary of State Alex Padilla granted voting rights to that population when they leave jail under supervision on the somewhat specious argument that their parole is no longer called “parole.”

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Weber’s bill would take that thinking a step further on the argument that some felons, while still felons, are now “jailed” instead of “imprisoned,” so for voting purposes we should not view them as felons. Does that ruse make any sense? Maybe a little: California would still draw a line between inmates with voting rights and those without. It would just draw the line in a different place.

Still, we’re finding it hard to gin up enthusiasm for this bill, or for the proposition that voting rights for a narrow and somewhat randomly selected group of felons should be a policy and resource priority for criminal justice reform in California. Plus, it does nothing to answer the broader question posed at the top of this editorial — a question that continues to engage the members of the Times editorial board in an argument. Or at least a vigorous and inclusive discussion.

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