By Rob Uriostegui, Esq. (Margolin & Lawrence Attorneys at Law)
Prop 17 gives back the right vote to many, which is really mandated by democratic theory. With more voters, the chances of selecting the correct candidate is increased.
“Every man having been born free and master of himself, no one else may under any pretext whatever subject him without his CONSENT.” Jean-Jacques Rousseau.
“Men being, as has been said, by nature, all free, equal and independent, no one can be put out of this estate, and subjected to the political power of another, without his own CONSENT.” John Locke.
Thomas Jefferson wrote in the Declaration of Independence:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the CONSENT of the governed.
The legitimacy of the government depends on the consent of the governed. Basic democratic principles. The right to vote is basically the right to contract. A contract is a promise for a promise. This is what the law calls “mutual assent.” There is no contract if there is only one promise. The law calls this an “illusory contract,” which is not a contract at all. If the individual promises to give power to the government with nothing in return, there is no contract. It is a gift, which is not an enforceable agreement. The contract between the individual and the government is quite simple. The individual promises to allow the government to have authority over him or her in return the government promises to allow the individual to participate in the selection process of those of who run government.
You may say this is nonsense. “I never made any contract with the government.” Well you did. It is called an “implied contract.” Nolo.com says, “[a]n implied contract is created when two or more parties have no written contract, but the law creates an obligation in the interest of fairness based on the parties’ conduct or circumstances.” The very fact that you have not engaged in revolution, rebellion, or coup d’état is conduct that shows your acceptance of the status quo.
The individual is endowed by his or her creator with the right of revolution. Of course, it is not a right given by man-made law. A government will never say you have the right to dissolve their existence. Under “sovereign immunity” you cannot even sue the government unless they consent. But, even with all the self-preservation tactics by the government, the right of revolution is a real right that existed from the dawn of time, as history has proven several times.
John Lock wrote about this right:
“whenever the Legislators endeavor to take away, and destroy the Property of the People, or to reduce them to Slavery under Arbitrary Power, they put themselves into a state of War with the People, who are thereupon absolved from any farther Obedience, and are left to the common Refuge, which God hath provided for all Men, against Force and Violence. Whensoever therefore the Legislative shall transgress this fundamental Rule of
Society; and either by Ambition, Fear, Folly or Corruption, endeavor to grasp themselves, or put into the hands of any other an Absolute Power over the Lives, Liberties, and Estates of the People; By this breach of Trust they forfeit the Power, the People had put into their hands, for quite contrary ends, and it devolves to the People, who have a Right to resume their original Liberty.”
Jefferson even cited this right in the Declaration of Independence as the reason for America’s independence. Jefferson simply summed up this right as, “rebellion to tyrants is obedience to God.” They were not alone in believing in the existence of this right given by natural law.
“When a government betrays the people by amassing too much power and becoming tyrannical, the people have no choice but to exercise the original rights of self defense – to fight the government.” Alexander Hamilton.
“The ultimate authority resides in the people, and that if the federal government got too powerful and overstepped its authority, then the people would develop plans of resistance and resort to arms.” James Madison.
“This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing Government, they can exercise their constitutional right of amending it or their revolutionary right to dismember or overthrow it.” Abraham Lincoln.
The right of revolution is real. But if you exercise this right, you better be right and win. If you do not, history will not call your effort a revolution. It will be called a civil war, which means you lost.
All this gloom and doom can be avoided as long the government stays responsive to the people, not to just some of the people. The whole purpose of government is to preserve the peace. The most fundamental principle of a free a society is that the government must provide an “opportunity to be heard.”
The ballot is the people’s opportunity to be heard. It is quite simple that if the people vote for the incumbent. They are telling the incumbent “good job and keep the same governmental polices in place.” If they do not vote from for the incumbent, they are telling the incumbent’s replacement that the “incumbent was not doing a good job and change his governmental polices.”
But for this to work, we need a diverse electorate with more people voting, not less. If not, we will just have mob rule. And government becomes less responsive to all the people. Then the whispers of right of revolution enters the public discourse. Really, it is in the government’s best interest to allow more people vote and be heard. As said in the movie Cool Hand Luke, “what we ‘ve got here is a failure to communicate,” communication failures are sometimes the cause for human conflict.
Voting promotes the dignity of the individual, which helps combat recidivism. Alex Padilla, Secretary of State for California, said those released from prison that have their voting rights restored tend to have lower rates of recidivism. “A 2004 study published in the Columbia Human Rights Law Review found that among people who had been arrested previously, 27% of non-voters were rearrested, compared with 12% of voters.”i
Opponents of Prop 17 argue, “[Prop 17] seeks to restore voting rights, the most fundamental and valuable of American privileges, to those who have not completed making full restitution for
their crimes.”ii This is wrong. Voting is not a privilege. It is a fundamental right. Driving is a privilege, not voting. Once a man is released from custody, his debt to society is paid. Opposition further argues:
“While on parole, a former criminal’s liberties, such as movement, association, activities and even ownership of certain items are still heavily restricted and regularly monitored by the system. Any misstep results in immediate re-incarceration. In other words, an individual on parole has not regained the full trust of the society at large, nor the privilege to participate as a full member of that society.”
This is a red herring. Any limitations put on a parolee is to deter and prevent recidivism. It is a pure logical fallacy to say there is a nexus between the right to vote and recidivism.
California is out of step with America by not allowing parolees the right to vote. Brennan Center for Justice stated: “California is one of only a handful of states that allows people on probation to vote, but not people on parole, causing confusion among voters and elections officials. As a result, untold numbers of eligible voters think that they cannot vote or refrain from voting out of fear that they may be breaking the law.”iii
This confusion is suppressing the right to vote of probationers who already have the legal right to vote under current law. Moreover, parolees are active participants within our society. As such, they must have the right to say how our society is governed because they are part of it.
A diverse and larger electorate should lead to better selections of our leaders. The Wisdom of Crowds theory. “Everyone knows the theory behind the wisdom of crowds — namely that pooling judgments from multiple individuals can lead to greater accuracy — is often exhibited when you try to guess how many jelly beans are in the jar. Ask 500 people and no one gets it exactly right, but take the average of the 500, and the number tends to be spot on.”iv
“[S]cientist and polymath Francis Galton discovered that not all crowd behaviour was negative. Indeed he found that if you asked enough people the same question, they might come up with better answers than even the experts.”
Fidelity to democratic values and a free society suggest a yes vote on Prop 17 is the correct vote.
For more information about this post, contact Margolin & Lawrence.