On January 8, 2019, about 1.4 million felons regained their right to vote in Florida, one of several states that disenfranchise felons. Florida voters passed an amendment in November restoring the right for felons that have completed parole and probation to vote again. However, this right was not restored to those who have been convicted of murder or a felony sex offense.
Florida was not the only state to permanently disenfranchise felons. Kentucky and Iowa still permanently disenfranchise felons after convictions. Conversely, Maine and Vermont allow everyone to vote, regardless if in prison, on probation, or on parole. All other states fall somewhere between these two options.
Disenfranchisement laws are well within the purview of the state. In 1967, disenfranchisement laws were found neither unreasonable nor unconstitutional in the case of Green v. Board of Elections of the City of New York. The United States Court of Appeals Second Circuit established that “it can scarcely be deemed unreasonable” for a state to disenfranchise felons, as they should not be able to elect the legislators creating laws they have broken, those who enforce the laws, the prosecutors who may try them, or the judges that decide their cases.
This issue has clearly been on the courts’ minds for decades, yet the growth of the prison population makes this a more pressing issue as an estimated 6.1 million citizens are disenfranchised as of 2016. As of 2016, in Florida, Kentucky, Tennessee, and Virginia, more than one in five black adults were disenfranchised. Since then, Virginia has made significant moves to open the vote to felons.
While it may be within the state’s constitutional right to decide who gets to vote, the legal question of whether felony disenfranchisement is discriminatory remains open. The African Americans are disproportionately represented in the felony population, and therefore are disproportionately disenfranchised. The American Civil Liberties Union (ACLU) states that felony disenfranchisement has a disproportionate and discriminatory impact on minority communities, which implies a violation of the 14th Amendment’s Equal Protection Clause. Several courts have dismissed this notion, including the Supreme Court in Richardson v. Ramirez, yet it is a topic still debated today.
In Richardson v. Ramirez (1974), it was held that felony disenfranchisement does not have to serve a compelling state interest, because Section 2 of the 14th Amendment exempts states from establishing that purpose in felony disenfranchisement cases. Normal voting restrictions must serve compelling government interests but the 14th Amendment allows the right to be abridged if there is “participation in rebellion, or other crime,” sparing felony disenfranchisement from this higher standard. The Supreme Court, therefore, found with this lower standard, that there was no 14th amendment violation.
Racial discrimination is not the only argument against felony disenfranchisement. In Madison v. Washington (2007), felons argued they faced discrimination on the basis of poverty. Their right to vote would not be returned until their sentence was completed, and payment of legal financial obligations (LFOs) is considered part of a sentence. Their financial status prevented them from paying their LFOs immediately, which delaying their right to vote until their installment payments were finished.
In Madison v. Washington, the court found that felons do not have a constitutionally protected right to vote; therefore, felons do not have the fundamental right to vote. This means a lower standard of review can be set to analyze the discrimination, and so the court found the right to vote may be taken away from felons for not paying a financial fine.
Despite the court generally favoring disenfranchisement, there are times when laws have changed to side with enfranchisement. One example came in reaction to the case Otsuka v. Hite, when conscientious objectors were forbidden the right to vote under California’s restriction of those convicted of “infamous crimes” in 1966. This standard refers to becoming “infamous” when convicted, and so all felons were disenfranchised. The court found the respondents’ debt to society paid and they were true conscientious objectors, so the court restored their right to vote. They did not stop there though, going on to curtail the disenfranchisement standard from “infamous crimes” to crimes of “moral corruption and dishonesty.” By this standard, one must be a threat to the election process, a significantly higher bar than being convicted of “infamous crimes.”
Another example of laws evolving came in 2018, when Floridians overwhelmingly voted in favor of returning the vote to felons. The passage of Amendment 4 automatically restored the right to vote to 1.4 million Floridians. Yet, Floridians, similar to those in Madison, will have to pay their LFOs first.
On October 19, 2019, a judge temporarily blocked the law stating LFOs must be paid before returning the right to vote, labeling it an unconstitutional poll tax. This block shows promise that court opinion on felony disenfranchisement is continually evolving and that steps are being made to keep court opinion in the context and climate of the day.
Those on the side of disenfranchisement believe that felons pose a threat to the election system by electing those with the power to rule on their cases and have lost the privilege of voting. On the other hand, those on the side of enfranchisement believe that disenfranchisement is a method of discrimination against minorities and impoverished people. This issue raises questions about how far the legal system can and should go to protect minorities against possibly discriminatory laws.