Setting the Record Straight

October 28, 2008

Stevens to ACLU: Help?

Ted Stevens and His Ironic Conundrum

     For some of us, there are few things more pleasurable than watching irony play out. The example here is that Sen. Ted Stevens may not be able to vote for himself in his reelection bid Nov. 4 in Alaska, said to be a tight one even before his conviction on seven felony counts.
     As a Republican, his savior may be an organization his fellow conservatives have always referred in vitriolic tones and as evil incarnate—the American Civil Liberties Union.
     It seems that Alaska is one of 20 states that bar felons from voting until they have completed their sentences. That might present Stevens with a technicality he can squeeze through and vote. He has only just been convicted and will not be sentenced until after the new year, much less have a chance to complete his sentence.
     Why would the ACLU be interested? The 15th Amendment, ratified in 1870 in the wake of freeing slaves and intended to block state efforts to keep them from being able to vote, states:
Section 1.
   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.
Section 2.
   The Congress shall have power to enforce this article by appropriate legislation.
     The 13th Amendment, ratified at the end of the Civil War, had already defined “servitude” as it applies to convicts by stating: neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” The key words are: “servitude, except as a punishment for crime.” It also gives Congress the power to enforce the amendment.
     But Congress rarely has tried and the fact remains only two states, Maine and Vermont, allow felons to vote without some conditions. Two, Kentucky and Virginia, flat-out deny felons the right to vote, eight allow some convicted of felony to vote and the rest allow only prisoners, probationers or parolees to vote.


     Some estimates put the number of people denied the right to vote because of felony convictions at 5 million, and half of them are blacks. That is more than enough to affect a presidential election, let alone a state outcome.

     The U.S. Supreme Court has ducked the issue. The last court to kick the issue away, in 2004 and 2005, was the same court that appointed George W. Bush as president.
     The court seems to uphold disenfranchisement of felons based on a provision of the 14th Amendment, which seems to condone the denial of a vote to people guilty of “participation in rebellion or other crime.” The trouble with that view is that the 15th Amendment ratified two years later would trump the 14th, stating clearly felons cannot be denied the vote. (There also is the argument that “other crime” has to mean something at the level of rebellion, or why even mention rebellion. A similar argument was involved in the Nixon impeachment proceedings when a committee wrestled with whether “high crimes and misdemeanors” meant misdemeanors also had to be “high [or major] misdemeanors.”)
     The last time Congress made an attempt to use its 15th Amendment powers was in 2002, when the Senate killed a Democrat-led bill to enforce it, 31-63, with all Republicans voting against it. Joe Biden joined John McCain in voting against it. Stevens was among six senators, all Republicans, who did not cast a vote.



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