Should Felons who Aren’t in Prison be Allowed to Vote?

Under Article II of the Iowa Constitution, an Iowa citizen who has been convicted of “any infamous crime” is ineligible to vote in local, state and federal elections. Our constitution doesn’t spell out the definition of “any infamous crime,” but in 1994 the Iowa General Assembly passed a law defining it as “any felony;.” thus, under Iowa Code Section 39.3(8), any Iowan convicted of any felony is ineligible to vote, forever (unless his/her right to vote has been restored by the Iowa Governor pursuant to this process, which is completely discretionary and which hasn’t been happening much since Governor Branstad took office six years ago).

Recently this statutory definition was challenged on various grounds, one being that it’s overly broad – that the ordinary meaning of “infamous” contemplates something wicked or abominable or shocking, and that many felonies simply don’t rise to a level of “infamy” that justifies permanently stripping a citizen of a constitutionally protected right. Last week, in Griffin v. Pate, a majority of the Iowa Supreme Court rejected this challenge, holding (heavy paraphrasing ahead) that based on the limited evidence before the Court, defining “infamous crime” in such a way as to permanently disenfranchise all convicted felons isn’t so irrational or so inconsistent with prevailing community standards as to require judicial intervention. So, for now, Iowa remains one of only three states that impose a lifetime voting ban on all convicted felons.

However, in the Griffin ruling Chief Justice Cady points out (more than once) that if there exists a general consensus that Iowans’ attitudes towards felons and voting rights have evolved since the original statutory definition was enacted, the Iowa Legislature can re-define “infamous crime” to mean something other than “any felony.” Which is good to know, since pre-Griffin, the conventional wisdom was that the legislature was somehow constitutionally constrained from legislatively loosening up the statutory definition of infamous crime.

I propose that the Iowa Legislature utilize our newly discovered legislative authority to drag Iowa’s felony disenfranchisement law into the 21st century, since I am confident that community standards have evolved over the past twenty years to the extent that the average Iowan no longer believes that every felony offense is so “infamous” as to justify a lifetime ban on voting. For example, possessing 1.5 ounces of marijuana without a tax stamp is a Class D felony, as is trespassing on property owned by a public utility, as is stealing a bicycle that costs more than $1,000 to replace; this illegal conduct is certainly not admirable, but I doubt the majority of Iowans would agree that a conviction for any of these crimes merits the permanent loss of a fundamental civil right.

Iowa’s criminal sentencing laws already appear to reflect a general consensus on the part of Iowa’s lawmakers (the elected representatives of Iowa’s citizens) that not all felonies rise to the level of infamy. Most non-violent felony offenses do not require a mandatory period of incarceration upon conviction, and many first time offenders convicted of non-violent felonies never spend a day in prison; they are allowed to live, work, pay taxes and raise families in our communities, as are felons serving a period of parole and felons who have discharged their sentences. It makes no sense and serves no purpose to deny these Iowans the right to participate in choosing the elected officials who will represent them at the local, state and federal level; felons who aren’t considered dangerous enough to require incarceration can pose little if any danger to the integrity of the ballot box.

Voting is a fundamental civil right, not a privilege, and under current law, thousands of Iowa citizens have been and will continue to be stripped of this right based on a statutory definition that I believe no longer accurately reflects Iowa values. The legislature has a duty to put a stop to this ongoing injustice as soon as possible; one simple way to do so would be to amend Iowa Code Section 39.3(8) so as to define “any infamous crime” as “any felony for which the person is currently serving a period of incarceration.” Whether this is the “best” definition, and/or whether there exists a general consensus that Iowa citizens who aren’t in prison should be allowed to vote, is certainly open to debate – but it’s a debate in which the Iowa Legislature should engage, and it’s one that will require input from Iowa citizens on a local and state level.

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About Representative Mary Wolfe

Part time attorney; full time State Representative for Iowa House District 98 (East Clinton County)
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