Image by Mark Thomas from Pixabay
Four years of intense partisanship, successive political crises, an impeachment, and social unrest, came to a head on November 3rd, 2020—the eve of the presidential election. There had been a concerted effort among political organizations and advocacy groups to ramp up their “get out the vote” efforts in the months leading up to the election, and it worked: at least 64.1% of the voting-eligible population participated this cycle and that number is expected to rise as votes continue to be counted. Despite this historic turnout, millions of Americans were prohibited from exercising their civic duty. Disenfranchisement has been used as punishment for crimes in America since the colonial era and continues to be used in numerous states, but examining this penal practice more closely betrays a history of racist oppression. Felony disenfranchisement is an outdated and undemocratic method of punishment that has no place in the 21st century.
Through the 18th and early 19th centuries, disenfranchisement was considered a “civil death” for citizens who broke laws, and later, pre-existing disenfranchisement laws were used to target Black voters after the Civil War. This problem goes back to the roots of the nation. In the years following the Civil War and Reconstruction, disenfranchisement laws were tailored to crimes they expected Black Americans to commit at higher rates than whites, such as burglary and arson. As Black Americans were given the Constitutional right to vote, states, particularly in the South, found ways to continue withholding them. Today, these policies do not explicitly target Black Americans, but they still have discriminatory impacts on people of color: of the approximately 6.1 million disenfranchised prisoners in 2016, 2.2 million were Black. The American justice system disproportionately punishes people of color and a result of that punishment is losing one’s ability to participate in the democratic process. This was by design.
In the early days of American history, there was little controversy over voting: it was a matter of fact that those entitled to the right to vote were landed white men and, as the ACLU notes, voting tests came in when suffrage was expanded to all white men. When slavery was abolished and the Thirteenth, Fourteenth, and Fifteenth Amendments were adopted, voting tests and restrictions became targeted at recently-enfranchised Black Americans. Felony disenfranchisement has been one of the methods that, from the very beginning, were used by those in power to strip the rights of the newly enfranchised. In order to stymie the development of politically empowered Black communities throughout the United States, state policymakers could effectively undo the progress the federal government had made: even though the Constitution gave Black Amerians the right to vote, if you focus on locking up Black Americans and then punishing crimes with disenfranchisement, the effects of the Reconstruction Amendments are essentially nullified. As the US moved out of the Reconstruction Era and into the era of Jim Crow, the same issues persisted. If the law would not permit outright discrimination, felony disenfranchisement would make it implicit.
The social unrest of summer 2020 showed that the issues surrounding disparities in policing were far from resolved. Police are 2.6 times more likely to kill Black Americans than whites, are more likely to stop minority drivers (AKA “driving while Black”) despite the fact that minorities are no more likely than whites to be driving with contraband, and are more likely to detain minorities charged with felonies than white — these are just some examples of how the criminal justice system continues to discriminate against Black Americans. A report from the Sentencing Project notes that the roots of these issues are both individual and institutional, as so much of criminal justice is reliant on an officer’s, prosecutor’s, or judge’s decision. Trapping a person in a recidivist cycle makes it significantly harder for that individual to participate in society, but stripping them of their right to vote ensures they will not be able to exercise their civic duty.
Concerning trends persist to this day. A 2003 study showed that there is a positive relationship between a state’s nonwhite population and the likelihood that those states will enact felony disenfranchisement laws, and a look at the numbers today shows this to still hold. Maine and Vermont are the only two states without restrictions on felons being able to vote, and their populations are 94.4% and 94.2% white, respectively. On the other end of the spectrum, states like Alabama and Virginia have the strictest disenfranchisement laws, but are less than 70% white. Attitudes towards felony disenfranchisement have changed in some states since this study was conducted, so it is not a perfect method for evaluating the relationship between racial demographics and disenfranchisement, but it provides an important lens to examine this issue through. For example, New Yorkers have made numerous legislative efforts to lessen the impact of their state’s felon disenfranchisement laws, which currently prohibit voting from those in prison and on parole. This is one state that is providing a positive example, but many states still cling to laws with their roots in one of the darkest periods in American history.
Numerous organizations have been working to reverse felony disenfranchisement in the US. The ACLU, the nation’s preeminent civil rights group, has their Right To Vote campaign, focused on protecting the vote for all Americans and encouraging states to adopt easy registration methods. They also develop Congressional legislation that would, if passed, restore voting rights in federal elections for felons who have completed their sentences. Numerous other nonprofits such as the Sentencing Project and legal organizations like the Brennan Center for Justice work to educate activists and legislators about the steps they can take to end felony disenfranchisement in their states. These efforts are slow going, but important.
Some states have been restoring voting rights, while others continue to crack down. On the more positive end of the spectrum, Kentucky Governor Andy Beshear restored voting rights by executive order to approximately 140,000 individuals who completed their sentences and Governor Cuomo’s 2018 pardoned of nearly 35,000 parolees in New York with the explicit purpose of restoring their right to vote. On the other hand, Floridians approved a state constitutional amendment to allow voting rights to those convicted of felonies (except rape and murder), but the Republican-held legislature blocked this effort by adding the caveat that prisoners would have to pay all fines and penalties before they were eligible. Conveniently, it was nearly impossible for the state to calculate these fees for all the eligible felons, creating what the judge for the US District Court for the Northern District of Florida called “an administrative nightmare.” After numerous legal challenges, the Supreme Court upheld the legislature’s restrictions in July 2020, creating yet another hurdle for felons who simply want to participate in society. This decision was highly controversial in the background of the 2020 election, emphasizing the idea to many that this system of punishment was unfair, highly political, and outdated.
Those who do try to justify felony disenfranchisement often rely on the same arguments that the English colonist used centuries ago: if you commit a crime, you suffer a civil death and should have no hand in deciding the laws or the elected officials who make them. It is a matter of morals and if you lack them, you ought not have the right to vote. However, the Constitution does not have any moral tests for the right to vote because that would be simply undemocratic and antithetical to the Framers’ vision. Additionally, what about all of the people who commit crimes but are not caught? They can vote, but they still broke the law. What about those wrongly convicted? They committed no crime but still are disenfranchised. The only way to safeguard against the moral decline of voters while also removing any room for doubt would be to require the government to constantly assess the morals of every citizen and monitor their every move to ensure they are living up to their moral code — which no sane person would suggest. To err is human, as is to forgive. Why remove the right to directly influence local, state, and federal government from felons, the people who arguably have the most intimate contact with government entities? Doing so is a senseless and moralistic punishment that does nothing to help society.
Today, states have varying policies when it comes to felony disenfranchisement: 18 states take away the right to vote for people in prison, 3 for those in prison and on parole; 17 for prison, parole, and probation; 11 for prison, parole, probation, and post-sentence (depending on the crime); and 2 have no restrictions. Of the nearly 6.1 million disenfranchised voters in the United States in 2016, 4.7 were out of prison, participating in their communities in every other way except being able to vote. In 2020, there are now approximately 5.2 million individuals disenfranchised due to felony convictions, a nearly 15% decline from 2016. This is a step in the right direction, but until every American can freely vote, it is not enough.
The right to vote is one of the most sacred acts in our country, the way we can directly voice our frustrations or our approval of those in power. It is a hard-earned right for most Americans, one that took a Civil War and decades of protest to finally possess. Stripping people, particularly Black Americans, of their right to vote is a step backwards and a shameful reminder of the discrimination still ingrained in this country. In order to right past wrongs and to set us on the path of being a truly free society, we must end felony disenfranchisement across the United States, not only to encourage full political participation of our citizens, but to set felons on the path to full societal integration.