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Lifetime felony disenfranchisement in Florida, Texas, and Iowa: symbolic and instrumental law.

Confused Constitutional History, Racism, and Southern Comfort

THE DISTINCTION BETWEEN INSTRUMENTAL AND SYMBOLIC LAW HAS BECOME ROUTINE for social scientists (Gusfield, 1963; Edelman, 1964). The former is actually intended to control behavior, while the latter is more concerned with using law to make a public statement. If ever there was legislation that seems designed to control human behavior, it is lifetime felony disenfranchisement (LFD). It is well known that LFD laws have much of their origins in American racism and the Civil War. According to Chin (2004: 261), after the Civil War Congress "required the former Confederate states to adopt constitutions allowing African Americans to vote as a condition of ending military occupation," but this prohibition on racial discrimination was not honored by many states. In the final analysis, the Constitution gives authority for determining elector qualifications to the individual state governments. Some state laws disenfranchise convicted felons only while they are in prison, and some extend it to their time on probation or parole; in others, lifetime disenfranchisement is only activated by a second felony conviction, while in Florida and Iowa, this occurs on the first conviction. No other democratic nation imprisons as many of its people because of a felony conviction. Between 1890 and 1910, five states in the Deep South (Alabama, Louisiana, Mississippi, South Carolina, and Virginia) "tailored their criminal disenfranchisement laws to increase their effect on black citizens (Clegg, 200 : 170). Shapiro (1997: 2) observes that there is "a history in this country of intentional use of such laws to deprive blacks of the vote. Indeed, it's a history that should tell us something about the distinct injustice of permanently disenfranchising ex-felons, whatever their race." Although racism is no longer legal, the criminal disenfranchisement laws passed with discriminatory intent more than 150 years ago continue to achieve their racist goals (Majuri, n.d.). African Americans are still disenfranchised at a rate far in excess of whites. Chin (2004: 264) notes that among "drug offenders, the fastest growing portion of the felon population over the past thirty years, there is substantial evidence of prosecution and conviction of African-Americans disproportionate to their rate of offending." Tonry (1995) concurs that the skyrocketing black prison population began in the 1980s during the inception of the war on drugs.

Although the incidence of crimes committed by blacks has not increased, the number of black prisoners has tripled since 1980. Approximately 13% of black males have lost their right to vote due to felony convictions, or around 1.4 million persons (Sentencing Project, 2000). The primary theoretical tool used to explain LFD legislation is the racial threat thesis (Behrens et al., 2003). The idea is that the presence of a high proportion of African Americans creates a threat that can be temporarily reduced by sentencing a large number of blacks to prison. This explains the situation in Florida, but it does less well in Texas and Iowa. Yet it has been observed that "we lack both case studies and comparative-historical analyses of the adoption of disenfranchisement law" (Ibid.), and this applies equally to research on the repeal and maintenance of such legislation. To begin to fill these gaps, we will demonstrate how the instrumental use of LFD law has continued unabated in Florida, while the distinction between instrumental and symbolic law can be used to explain the repeal of LFD legislation in Texas and its retention in Iowa. The study of this contemporary bigotry is made more difficult by the "race neutral" language found in the current debates (Ibid.: 568). Yet we will demonstrate that through policies that have been explicitly and are now "implicitly racial, state institutions organize and enforce the racial politics of everyday life" (Omi and Winant, 1986: 77).

Background I: Florida--The Most Infamous LFD State

Recent interest in LFD laws springs in great part from the experience in Florida (Johnson v. Bush). Florida's disenfranchisement law kept in excess of 600,000 citizens with felony convictions from voting in 2000 (Rapoport, 2003), of whom one-third were black (Wagner, 2001). Thus, Uggen and Manza (2002) argue that the outcome of the 2000 presidential election, as well as of several other presidential elections and U.S. Senate elections, would have had different outcomes if disenfranchised ex-felons would have had the vote. Florida's part in the 2000 presidential election has become infamous since the Supreme Court proclaimed George W. Bush as president. Before the election, state officials waged a $4.3 million campaign to purge Florida's felons from the voter rolls (Palm Beach Post, 2001). A private company, Database Technologies Inc. (DBT), was hired by Florida Secretary of State Katherine Harris to compile an annual list of felons through comparisons of voter rolls and criminal databases. "The ground rules created by the state ordered a voter targeted for removal from the list if his or her name had only an 80% match in letters with a list of about 175,000 former offenders compiled by the Florida Department of Law Enforcement" (Advancement Project, n.d.: 20). These lists, dubbed "scrub lists" by Florida officials, included nearly one percent of Florida's electorate and approximately three percent of its African-American voters (Palast, 2002: 1).

The purge lists included Florida residents with convictions from other states, whose voting rights had been restored by those states, and therefore should have been eligible to vote in Florida (Advancement Project, n.d.). Not surprisingly, DBT identified thousands of innocent voters as "possible" felons (Palm Beach Post, 2001: 2). At least 2,873 voters were incorrectly removed based on a letter to counties from Governor Jeb Bush's clemency office (Palast, 2002). Additionally, out of the 4,847 who appealed being removed from the voting rolls using this procedure, 2,430 were judged not to have felony convictions, with approximately 8,000 voters included who had never been convicted of anything greater than misdemeanors (Advancement Project, n.d.). Florida blacks were four times as likely as whites to be incorrectly purged by the state's techniques (Palast, 2002). By refusing to verify the accuracy of the "scrub lists," the Florida state government essentially stated that it was willing to bar thousands of innocent citizens from voting instead of taking the time to verify the information provided by DBT.

In 1998, Florida's total black population was 15% (U.S. Census, 2000). Among prisoners, 52.5% were black (Florida Department of Corrections, 2003), over three times the proportion in the total state population. In 1998, Florida's 389 prisoners on death row ranked third in the U.S. (Worm Almanac, 1998a). Florida is also one of the most restrictive states in enforcing its felony disenfranchisement legislation, with one in four black men unable to vote due to felony convictions (Sentencing Project, 1998). In 2000, Florida only restored voting rights to 1,832 ex-felons, about one out of every 300 in the state (Thompson, 2001). These low rates of re-enfranchisement for ex-felons have devastating effects on the black community of Florida:
 In an extensive study of two poor and mostly black communities
 in Tallahassee, Florida, criminal justice professor Todd Clear
 was unable to find a single family without at least one
 disenfranchised man--making it unlikely that the communities
 will be able to band together when, for example, a state
 senator proposes locating a toxic waste dump nearby (Ibid.: 18).

In its past and present, Florida's LFD law has had a significant instrumental impact that seems to be an intentional effort to escape the local racial threat.

Background II: Contradictions in the Solid South; Symbols of a Progressive Texas

While instrumental law seems to drive LFD in the Old South and in contemporary Florida, something else appears to be at work in Texas. If Florida has the most infamous LFD legislation, Texas has the most infamous criminal justice system. Surprisingly, Texas officially abolished its lifetime voting ban for ex-felons in 1983, when House Bill 718 was passed by the Legislature. Texas newspaper articles that we reviewed expressed no alarm about this proposal. The following summary was recorded by the Houston Chronicle (1983): "By a 103-35 vote, the House Thursday approved HB718 ... which would restore felons' voting rights eight years after they have completed their sentences." This bill was a great success for those working for felons' voting rights in the state, especially since "a felon voting rights bill [had] not cleared both houses of the legislature since [1977]," when former Governor Dolph Briscoe vetoed a similar bill (Ft. Worth Star Telegram, 1983a).

Many proponents of the bill were opposed to the eight-year waiting period required before ex-felons could legally vote. Charles Sullivan, executive director of Citizens United for the Rehabilitation of Errants (CURE), stated he was "not real happy" about the waiting period, which was added by a House amendment (Ft. Worth Star Telegram, 1983a). Representative El Franco Lee (D-Houston), the sponsor of H B718, agreed to the inclusion of a waiting period in the hopes that Governor White would not veto the bill (Dallas Times Herald, 1983). The Ft. Worth Star Telegram (1983 b) agreed that "waiting eight years does seem an unreasonable time. But proponents said that stipulation might be the only way they can get the bill passed this session. Their strategy is to get approval this time, then seek reduction of the eight-year wait in the next legislative session." After approval of the eight-year waiting period, it was indeed reduced to five years (San Antonio Light, 1983).

The proponents of HB718 emphasized the importance of rehabilitation for ex-felons. Representative Lee stated, "either you have served your time for a mistake in the past and vindicated yourself, and we forgive you, or we don't" (Houston Chronicle, 1983). In another article, "Lee said that felons who have served their sentences should not be 'treated as second-class citizens'" (Dallas Times Herald, 1983). Lee's comments are representative of the main arguments used in the fight against Texas's LFD legislation. Charles Sullivan provided another example of this rationale, which appeared in the Ft. Worth Star Telegram (1983a): "Punishment doesn't have to put a stigma on somebody for the rest of his life. This is a real important rehabilitation measure." Sullivan, quoted throughout the articles reviewed, became the "face" of the bill when his picture was included in an article in the Beaumont Enterprise Journal on September 11, 1984. He was pictured wearing a suit and tie, and both his name and his picture indicated that he was clearly of Anglo background. This imagery surely aided in the acceptance of this issue by the general public and the legislature.

Some discussion was aimed at normalizing law violators. Jim Harrington, the legal director of the Texas Civil Liberties Union, stated, "this law is a God-send for people ... who make simple mistakes and get caught in the inequity of the system" (Valley Morning Star, 1984). Bill Aleshire, Travis County voter registrar, agreed: "There were people who had made a mistake, had gotten caught, been punished for it, served their time, completed all obligations to the legal system and were still not able to participate as full citizens and exercise their right to vote" (Beaumont Enterprise Journal, 1984). The Valley Morning Star described one ex-felon that would regain his right to vote. The case involved a "63-year-old Hidalgo County man [who] was arrested in 1963 for smuggling a case of liquor over the border from Mexico into the United States" (Valley Morning Star, 1984). This was the only description of an ex-felon potentially affected by passage of HB718 to be printed in any newspaper, and it is a good example of the way in which ex-felons in general were being portrayed as neither violent nor necessarily evil. This man was simply bringing liquor back to the U.S. from Mexico; he was not smuggling drugs or causing harm to anyone. These arguments have a precedent in the passage of drug reforms. Galliher et al. (1974) found that the passage of liberal drug laws in Nebraska coincided with a specific definition of the types of individuals affected by strict drug penalties. They described members of the Nebraska state legislature as backing the legislation "as a remedy against sending 'decent' college kids to the penitentiary for a 'minor mistake'" (Ibid.: 450).

While the repeal of Texas' lifetime felony disenfranchisement legislation was being considered in the state legislature, this body was also increasing penalties in the war on drugs (Houston Chronicle, 1983). Lee made this point explicit when he stated: "This does not restrict or relax any existing laws with respect to offenders" (San Antonio Light, 1883). This tough talk provided political cover for the state legislators in that they could not be accused of being soft on crime. These findings echo what Galliher and Basilick (1979) found regarding the passage of liberal drug laws in Utah. In that study, an assistant prosecuting attorney, discussing the passage of these liberal drug laws, stated: "The legislature masked this change with massive increases in other [criminal] penalties" (Ibid.: 290). Texas' number of prisoners serving one year or more is much above average at 686 per 100,000, ranking it second in the nation in 1996 (World Almanac, 1998b). The state practices the death penalty by lethal injection, and as of January 1998, had 428 prisoners on death row, again ranking it second in the nation. Texas ranked first and far ahead of all other states in the nation with 144 individuals executed in 1996 to 1997, and 37 executed in 1997 alone (Ibid.). The state does not need LFD laws to control its minority population if the criminal justice system does it, and Texas politics is skewed so far to the right that the state leaders may feel a need to provide some sign of equity.

LFD Beyond Racism and the South

LFD has more than merely Southern, racist origins. Clegg (2001: 170) has reasoned that since "an overwhelming number" of states have passed disenfranchisement laws, this indicates that something other than racial discrimination is the motive. Early federal attempts to curb racist limitations to the extension of the franchise were limited to the South and did not apply in the North (Chin, 2004). Clegg lists the states in the South and West that in 2001 retained LFD. Currently, Iowa is the only Northern state to do so, and indeed has this provision for the first offense. The question is why a Northern state with many progressive tendencies should find itself in the company of several Southern states. Given the paucity of research on felony disenfranchisement in the early 20th century (Ewald, 2002) and the nonexistence of studies on the reform or repeal of criminal disenfranchisement laws by state legislatures (Shapiro, 1993), the present study is timely and unique in its attempt to begin to fill the hole in the literature.

The History of LFD in Iowa

Iowa was the first state outside New England to extend the franchise to black males. Yet Iowa remains one of the few states in which all ex-felons are disenfranchised for life after the completion of their sentence. To understand the social and political context in which Iowa's LFD legislation was passed, we reviewed the debates held at the Constitutional Conventions of 1844, 1846, and 1857, when the current Constitution of Iowa was ratified (Iowa Constitution, 1857). We also consulted numerous library resources on the history of Iowa, personal documents of Iowan's around the time of the Conventions, and the newspapers during that period. This information was gathered from the Iowa State Historical Society, in Des Moines. In addition, we reviewed the most recent attempts to repeal this legislation. House File 2257 was proposed on February 7, 2002, in the Iowa House, and was promptly referred to the State Government Committee (Iowa House, 2002). House File 415 was introduced on March 4, 2003 (Iowa House, 2003a), and House File 402 was introduced on March 4, 2003 (Iowa House, 2003b). Both of these bills were referred to the State Government Committee. Another bill, House File 445, was introduced on March 5, 2003, and also was referred to the State Government Committee (Iowa House, 2003c). Senate File 311 was introduced on March 6, 2003, and referred to the State Government Committee (Iowa Senate, 2003). All these bills died in committee. We reviewed the Des Moines Register from January 21 through February 10, 2002, and from February 21 through March 20, 2003, to assess the public response to these bills. No articles covering LFD were found for either period, yet Iowa's LFD legislation was a significant issue to some, at least as reflected in the number of bills introduced in the early months of 2003.

Lifetime felony disenfranchisement legislation was created in Iowa with the passage of the Constitution of 1846. The Constitution of Iowa, passed in 1857, maintained this legislation under Rights of Suffrage, Article II, Section 5, which states: "No idiot, or insane person, or person convicted of any infamous crime, shall be entitled to the privileges of an elector." This section was amended in 1998 to state that an individual barred from voting is:

1. A person who has been convicted of a felony as defined in section 701.7, or convicted of an offense classified as a felony under federal law. 2. A person who is mentally incompetent to vote (Iowa Code, 2001). The delegates to the Constitutional Conventions of 1844, 1846, and 1857 did not express any concerns about LFD legislation. In a review of all Iowa newspapers in circulation in the relevant months for those years located at the Iowa State Historical Society in Des Moines, no discussion or debate of the LFD legislation was found.

Iowa was admitted as a U.S. territory under the terms of the Missouri Compromise, mandating that it be a state free from slavery. In 1839, the Iowa Territorial Assembly passed a series of "black codes" restricting the rights of free blacks. These laws included "An Act to Regulate Blacks and Mulattoes," which "prohibited blacks from settling in Iowa without evidence of freedom and the posting of a five hundred dollar bond" (Acton, 1989: 56). Numerous additional laws restricting the rights of blacks were passed by the Territorial Assembly, such as: opening schools only to whites, confining the militia to white males, prohibiting blacks from being witnesses against whites in any court case, denying blacks relief for the poor, and outlawing interracial marriage (Ibid.).

At the 1844 Convention, there was much discussion of the future role of blacks in the state. Edward Langworthy, a Democrat, proposed barring blacks from Iowa (Cooper, 1987). He also expressed the fear that admitting Iowa as a free state, with Missouri being a slave state in such close proximity, would cause blacks to flood Iowa in a search of freedom (Ibid.). However, because Iowa had not yet been accepted into the Union, and due to the fact that Iowa was to be admitted as a free state, several delegates "feared that Iowa would not attain statehood with such an anti-Black constitutional provision" (Ibid.: 118). Iowa became a state on December 28, 1846. After attaining statehood, in 1851 the third General Assembly passed additional discriminatory measures with a "provision for the recapture of fugitive slaves" (Ibid.: 116). The legislature also passed "an Act to prohibit the immigration of free Negroes into this state" (Ibid.: 122), which stipulated that no free blacks or mulattoes would be permitted to settle in Iowa.

One of the main arguments against black suffrage expressed by the legislators was that there was a threat of blacks overrunning the state. Consider this fear in light of the following. The 1850 federal census showed 190,000 inhabitants of Iowa (Wall, 1978), including a population of only 333 people of African descent (Sage, 1974). By the 1856 census, the number of blacks in the state had decreased to 271. Mr. Clarke of Henry County described the status of blacks in Iowa at that time quite well: "Do the gentlemen seriously come before such a body as this, and tell us that they really have fears that the whole body of Negroes in the North will be precipitated upon our state by the mere striking out of the word 'white' in our Constitution?" (Constitutional Convention, 1857; see Iowa State Historical Society, 1844). The Constitutional Convention of 1857 was marked by extended debates on the "Negro question." This Convention marked a turning point that led to a fundamental change in the orientation of the Republican Party toward racial equality. Up to this point, Republicans were not sympathetic toward bills promoting gains for blacks (Wubben, 1984). However, "no matter how racist, every Republican delegate ranked as more egalitarian than any Democrat" (Dykstra, 1993: 157).

In 1868, a black suffrage rights referendum won 57% of the vote in Iowa (Ibid.). This was a great victory for the Republican Party. Nationwide, the victory was important in that in 1868 only five states, all located in New England, permitted voting privileges for males regardless of race (Wall, 1978). Party affiliation continued to be important in the policies that the legislatures enacted in Iowa through the end of the 19th century and into the 20th century.
 For almost two decades following the Civil War the G.O.R dominated
 politics.... In the early eighties the idea of a Democratic
 resurgence seemed as remote as the revocation of divine law. One
 Iowa Republican boasted that his state "will go Democratic when Hell
 goes Methodist" (Ostler, 1992: 459).

During the 1960s, political party affiliation had much to do with the laws debated and passed by the Iowa legislature (Galliher et al., 2002). In the 1964 election, Democrats gained control of the House and the Senate. When Iowa's legislature changed from Republican to Democratic control in the 1964 election, it signaled a change in the political environment (Ibid.). The new leadership opposed the antiunion, so-called right-to-work laws, opposed placing a heavy property tax burden on family farmers, and repealed the state's death penalty law, but still there was no change in Iowa's LFD.

Symbolic Politics in Iowa

Edelman's discussion of the way politics are used to manipulate the general public begins with an important understanding: "Practically every political act that is controversial or regarded as really important is bound to serve in part as a condensation symbol. It evokes a quiescent or an aroused mass response because it symbolizes a threat or reassurance" (Edelman, 1964: 7). Condensation symbols are defined as symbols that "evoke the emotions associated with the situation. They condense into one symbolic event, sign, or act patriotic pride, anxieties, remembrances of past glories or humiliations, promises of future greatness: some one of these or all of them" (Edelman, 1964: 6).

Many Democratic legislators at the time of the Constitutional Convention of 1857 anticipated the overwhelming horrors that would come to Iowa if black men were given the right to vote in the state. In this way, these legislators took advantage of the fears and prejudices felt by many people in Iowa. As has been shown above, these fears were unrealistic and the effects of the law that many of the legislators described were unlikely to occur. Edelman (Ibid.: 11) captured this phenomenon when he stated, "political symbols bring out in concentrated form those particular meanings and emotions which the members of a group create and reinforce in each other." One of the first examples of" a symbolic law was the Haun Act of 1851, which regulated the immigration of blacks into Iowa. According to Cooper (1987: 130), this law was never actively enforced, "since the number of blacks in the state increased from 265 in 1850 to 944 in 1860." Thus, despite a law that banned blacks from migrating to the state, Iowa's black population had risen greatly 10 years later. Dykstra (1993: 118) echoes this sentiment when describing this law:
 The deplorable measure was not likely to be enforced, and
 legislative efforts to repeal it might backfire by resolving
 all ambiguity about its status. This argument shrewdly comprehended
 that the measure was chiefly of symbolic rather than substantive
 value. As an unequivocating endorsement of white supremacy, it
 offered ultra conservatives complete psychological protection from
 blacks even if it did not represent actual public policy.

A second symbolic law passed by the Iowa legislature involved corporate railroad interests versus farmers' rights. In 1888, the legislature "established an elective board of commissioners with power to set maximum rates and passed legislation requiring the present board to reduce intrastate rates" (Ostler, 1992: 463). This law provided only modest economic returns, and so was passed primarily for symbolic reasons to appease Iowa farmers. In other words, "Iowa farmers saw the law, in symbolic terms, as a monument to the efficacy of their nonpartisan strategy and felt vindicated for their faith in participatory democracy" (Ibid.).

Finally, the abolition and reestablishment of the death penalty in Iowa exemplifies symbolic politics at work in the state legislature. Iowa first abolished its death penalty legislation in 1872, but reinstated this legislation in 1878 due to lynching and murder, and because of changing public opinion (Acton, 1989). Iowa again abolished the death penalty in 1965. The death penalty legislation strongly represents symbolic politics because after achieving statehood in 1846, Iowa has executed 41 prisoners; since the 1950s, Iowa has executed only one person (Galliher et al., 2002). Thus, although the death penalty was on the books in Iowa for a number of years, it constitutes symbolic legislation because it was rarely put to use. Lifetime felony disenfranchisement legislation in Iowa can also be characterized as symbolic legislation.

According to the U.S. census, in 2000 only 2.1% of Iowa's citizens were African American, and only in three of the state's counties do blacks exceed four percent. The FBI Uniform Crime Reports (2004) show that Iowa had 272 violent crimes per 100,000 population, approximately half the U.S. mean. This low minority population and low levels of violence provide the structural foundations for citizen quiescence (Galliher and Basilick, 1979). With a pacified electorate, LFD restoration is provided to the vast majority of felons without creating alarm. This seemingly restrictive law is imposed on only a few. Between 1999 and 2005, there were 2,369 citizenship restorations based on 2,998 applications received, or 80% (Iowa Governor's Office, 2005). According to the National Commission on Federal Election Reform (2002), under four percent of whites in Iowa are disenfranchised for life.

But race in Iowa still matters. In 2001, approximately 23% of Iowa's 6,176 prison inmates were African Americans (Iowa Division of Criminal and Juvenile Justice Planning, 2001), 10 times the proportion of blacks in the total state population. This fits well with the observation (Behrens et al., 2003) that high proportions of minorities in a state's prison population are associated with the presence of LFD laws. Coincidently, the National Commission (2002) reports that 23% of blacks in Iowa are disenfranchised due to LFD, nearly the highest percentage in the nation. Since the 2000 census reported nearly 40,000 voting age blacks in Iowa, 23% translates into nearly 9,200 disenfranchised persons. With such a low percentage of blacks in the state, the racial threat hypothesis does not seem to be the best explanation for the current racial characteristics of the prison population or Iowa's continuing LFD. In Maryland and Connecticut, minority legislative caucuses fought their state's LFD laws (Behrens et al., 2003), but in Iowa the miniscule numbers of African Americans make this impossible.

Summary, Conclusions, and Theoretical Analysis

Florida's instrumental LFD law has had enormous negative symbolic fallout for the state. Outrage generated by its voting system has been widespread and extreme. Meanwhile, symbolism aided the repeal of LFD legislation in Texas. The fact that Texas repealed its LFD legislation while still having a conservative state government indicates that many members of the state legislature reflected elements of political quiescence. "Political quiescence toward a policy area can be assumed to be a function either of lack of interest or of the satisfaction of whatever interest the quiescent group may have in the policy in question" (Edelman, 1964: 22). This was the case because of the symbolic covers associated with HB718 that repealed Texas' LFD legislation. By describing the bill as a valuable asset to the rehabilitative functions of the Texas prison system, the focus was shifted from allowing ex-felons to vote to encouraging good citizenship by those who had once "made a mistake" and had served their time.

According to Edelman (1964: 153), "quiescence with respect to political objectives is a function of various forms of symbolic reassurance." The punitive drug laws that were passed alongside the repeal of the state's LFD legislation reassured Texas state legislators. Further, by attaching a white face to this legislation, white Texans were more likely to support the measure. The willingness of the proponents of the bill to compromise by adding an extended waiting period to the bill also aided in successfully framing the legislation. Since many years had passed since a bill aimed at repealing Texas' LFD legislation had successfully made it through both Houses, Edelman correctly observes that "unambiguous failure of a group to achieve a political objective is followed by a lowering of the aspiration level" (Ibid.: 157). Such an experience in Texas shows why a long waiting period might be added to HB718 in the hope of preventing the governor from vetoing it.

Repeal of LFD in Texas symbolized to Texans and others that despite its large and growing state prison population and its record as the leading western locale of executions, it was still a civilized state. With so many of its citizens in prison, or executed, the Texas government could well afford to offer this reform. Much the same experience was found in the marihuana decriminalization experience in Mississippi during the 1970s (DiChiara and Galliher, 1994). No matter how brutal and backward Mississippi may seem, it can still point to one success as representing its fundamental decency. Thus, quiescence created by symbolic law comes in various forms. Such law can convince an audience of their essential moral decency, and of the law's capacity for control, even in the face of considerable evidence to the contrary.

Iowa is also an anomalous case because the state has a long history of progressive legislation. Iowa was the first state outside New England to extend the franchise to black males, and has continued to pass progressive legislation throughout the 20th century. However, Iowa is also one of a handful of states that maintain lifetime felony disenfranchisement legislation. The unrealistic fears instilled in the white population by the state legislature served as gestures of cohesion and differentiation. In this manner, the passage of LFD legislation in Iowa had much to do with race. Although Iowa has never had a significant black population, the legislature enacted measures to symbolically appease the majority white population, which feared a mass influx of blacks into the state. Yet Iowa was progressive in its legislation regarding other questions of race, probably due to the miniscule number of blacks in the state in relation to the total population, and the eventual recognition that the threat of blacks entering the state was unrealistic.

Another general characteristic of the nature of law has been described as "Gresham's Law: ritualistic routine minimizing of the likelihood of energetic search for more satisfactory solutions" (Edelman, 1964: 54). This applies primarily to the maintenance of LFD legislation in Iowa. Because of the tradition of LFD legislation in Iowa and because of the small number of blacks in the state, the repeal of this legislation has not been a high priority. Gusfield (1963) provides an explanation for our diverse results. Instrumental law seems to be present when material, class, or racial interests are at stake. This is illustrated by historical and recent experiences in Florida. Symbolic law seems more likely when no such significant interests are present, as in Iowa. In the final analysis, symbolic legislation can involve the passage of law, as in Texas, or the failure to pass legislation, as in Iowa. In either case, quiescence of the electorate is maintained without any real impact on actual law enforcement. In addition, its supporters draw on symbolic law when they see no need, or little possibility for, actual legal control.

In Florida, over 50% of the state's prison population was black in 1998--more than three times the percentage of African Americans in the state; only one in 300 felons had their voting rights restored, with 25% of black men thus unable to vote. In Iowa, nearly one-fourth of the state's prison population is black--over 10 times the percentage of blacks in the state; 80% of felons have had their voting rights restored, with nearly one in four blacks remaining disenfranchised--just as in Florida. Apparently, nearly every felon in Iowa has had their voting rights restored, except for African Americans. Although Iowa's prison and voter restoration system is far more racially skewed than that of Florida, the press, most lawmakers, and academics have ignored Iowa. Since most Iowa communities do not have the critical mass of African Americans for a ghetto to exist, racism may be especially easy for white Iowans to ignore. The small number of former black prisoners who are disenfranchised apparently precludes widespread outrage and imposes what amounts to a tyranny of small numbers.

This description of symbolic law begs the question of a theoretical understanding of why Iowa's LFD does not arouse criticism for its racially differential impact. It seems clear that the symbolic LFD law in Iowa results in a situation of "racism without racists" (Bonilla-Silva, 2003), because in this overwhelmingly white state LFD is never criticized on the basis of its differential racial impact. After the Civil Rights Movement of the 1960s, new prohibitions developed regarding the public expression of racial hatred (Bonilla-Silva, 2001). Former President Richard Nixon developed this type of communication to a high art. He was routinely quoted as opposing school bussing, which was widely read as opposition to racial integration (Steinberg, 1995). But Nixon was not routinely criticized as a racist, for his was a "color-blind racism" that never explicitly targeted black citizens (Bonilla-Silva, 2001). White Americans often saw this political position as fair and balanced. The logic seems to be that if white Americans do not admit to racism, then they cannot be characterized as racist. It is also true that Iowa's election results are probably not significantly influenced by its LFD (except possibly in the four counties where African Americans are concentrated), and voters of various political persuasions are quiescent. However, Iowa's LFD legislation can be characterized as a tyranny of small numbers due to the small number of black Iowans who are disenfranchised. The ethical objections to LFD are the same whether 5,000 or 500,000 are disenfranchised, especially when race is used as a significant sorting device.


On July 4, 2005, Iowa Governor Tom Vilsack signed Executive Order No. 42, which granted "a blanket restoration of the right to vote and hold public office to persons who are disqualified from registering to vote because of conviction for a felony or aggravated misdemeanor" (Iowa State, 2005: 5). The governor's authority to pursue this order was drawn from Article IV, Section 4 of the Iowa Constitution, which provides the governor with the authority to grant pardons. The reasons for this action were outlined in Executive Order No. 42 and finally included some recognition of the state's minority population:
 Ex-felons in Iowa are living, working, and paying taxes and denied
 the right to vote; disenfranchisement of offenders has
 disproportionate racial impacts which diminish the representation of
 minority populations; ex-offenders who are granted the right to vote
 are less likely to re-offend; voting is an important aspect of
 reintegration of offenders to society; Iowa was one of only five
 states without an automatic restoration of rights to those who have
 discharged their debt to society, and the current process of
 restoration of rights was too cumbersome and time consuming.

Although Vilsack's announcement "stunned even close observers of the issue" (Des Moines Register, 2005a: 6A), it was praised by civil and voting rights groups, including the state director of the ACLU, who called it "long overdue" (Des Moines Register, 2005c: 1B), and applauded by the Brennan Center for Justice (2005) and Right to Vote, a campaign to end felony disenfranchisement. However, not all reactions were positive. Many Republican state legislators were opposed to this order because there are approximately 50,000 ex-offenders regaining the right to vote and they were considered most likely to vote for Democratic Party candidates (Des Moines Register, 2005a). Additionally, payment of restitution is no longer required prior to regaining the right to vote (Des Moines Register, 2005c). Another Republican recognized that this change may well have jeopardized the razor-thin majority for President Bush in the 2004 election, and argued that felons should not be allowed to vote until they have paid all of their court costs or attorney's fees (Des Monies Register, 2005c). However, one observer commented that requiring payment of all fees was akin to a poll tax and illustrated the position with two cases, one of which involved a $212 debt and the other $58.72 (Des Moines Register, 2005b: 1A). Former Republican Governor Terry Branstad argued that this was a mistake; "with citizenship should go not just rights but also responsibility" (Ibid.).

The Des Monies Register (2005a: 6A), however, endorsed this change: "It is the right move.... Iowa was one of five states with the toughest policies on restoring voting rights. That policy disproportionately affected minorities. While only two percent of Iowa's population is black, it's estimated that nearly a quarter of disenfranchised felons are African-Americans." Once race and racism were mentioned, it was impossible to ignore.


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Johnson v. Bush 353 F.3d 1287, 2003 U.S. App.

CHRISTIE SENNOTT was until recently a graduate student in sociology at Missouri University-Columbia, and teaches at Pikes Peak Community College, Social and Behavioral Sciences, Colorado Springs, CO 80906 (e-mail: She is primarily interested in the relationship between race and law. JOHN GALLIHER is Professor of Sociology and Director of Peace Studies at Missouri University-Columbia (e-mail: His research interests include the historical origins of law, as well as intellectual history. His most recent book is Laud Humphreys: Prophet of Homosexuality and Sociology (University of Wisconsin, 2004, with Wayne Brekhus and David Keys). The authors gratefully acknowledge the assistance of Wayne Brekhus and Gregory Casey.
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Author:Sennott, Christie; Galliher, John F.
Publication:Social Justice
Article Type:Law overview
Geographic Code:1USA
Date:Mar 22, 2006
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