Votes Behind Bars: The United States is the only advanced democracy that disenfranchises citizens for criminal convictions.
Nearly half a century ago, Isaiah Berlin delivered an extraordinarily influential lecture called “Two Concepts of Liberty.” The negative concept consists in freedom from—“warding off interference” from external forces. By contrast, the positive concept consists in freedom to—to be “a doer—deciding, not being decided for.” Democracy requires both forms, but current constitutional doctrine adopts an unduly negative approach.
This is especially the case when it comes to political voice. The Supreme Court has resisted attempts to constrain the political impact of money, most notoriously in Citizens United v. Federal Election Commission (2010). But just as telling is Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011), where the Court hobbled the states’ ability to construct public financing systems. Adjusting the funds available to candidates who accept public financing somehow burdens privately financed candidates’ freedom, according to the justices.
The Court’s rationale in campaign finance cases calls on protection of free speech, which invokes a negative concept of liberty because the freedom of speech guaranteed by the First Amendment is largely exercised without government assistance. Political speech, the Court points out, is “an essential mechanism of democracy, for it is the means to hold officials accountable to the people.” True enough.
Yet voting is surely an equally essential mechanism of democracy, and arguably a more direct means for holding officials accountable, but the Court has upheld laws that burden casting a ballot, a positive liberty. In Crawford v. Marion County Election Board (2008), the Court rejected a challenge to an Indiana law requiring already-registered voters to present government-issued photo identification at the polls. (Disclosure: I helped to represent the plaintiffs in the case.) The justices did not agree on every element of the case, but they accepted Indiana’s argument that ID prevents fraud (after recognizing that Indiana could not point to a single example, ever, of impersonation that an ID requirement would have stopped) and enhances “public confidence” in the election process, a rationale the Court has essentially rejected in the political-spending context.