Enfranchisement

No right is more precious in a free country than that of having a voice in the election of those who make the laws under which ... we must live.  Other rights ... are illusory if the right to vote is undermined.1

America was founded upon some of the world’s greatest democratic principles, including the right of all citizens to participate in the democratic process through voting.  Yet when it comes to our treatment of people who have a criminal record, we fall short of these democratic ideals: our disenfranchisement policies with regard to people who have been convicted of a crime have resulted in well over 5 million people losing the precious right to vote.

These polices originated after the Civil War and as part of Jim Crow laws and policies aimed at limiting the rights of poor people and African Americans.  Today, race neutral reasons are offered as a rationale for depriving American citizens a voice in our government.  Whatever the underlying rationale for these laws, the impact is undeniable -- a disproportionate number of those who have lost the right to vote are African American or Hispanic. 

Disenfranchisement is one of the policy choices that results in continued inequality.  Through legislative action, this policy choice can, and must, change.  If we continue to incarcerate millions of our citizens, particularly people of color, while simultaneously taking away their right to vote, the outcome is obvious: we will continue to create a permanent underclass, disproportionately people of color, who lack a voice in government.  Now is the time to give voice to the millions who are being silenced; now is the time to fully realize America’s democratic ideals.

An Historical Perspective

U.S. felony disenfranchisement laws “are deeply rooted in the difficult history of race relations in America.”2  Though some states had adopted limited felony disenfranchisement laws as early as the 18th Century, the post-Civil War Reconstruction period saw a surge in the scope and breadth of these laws.3  The spread of disenfranchisement laws was part of the larger backlash against adoption of the Thirteenth, Fourteenth and Fifteenth Amendments to the United States Constitution, which were enacted to guarantee equality, due process, and the right to vote to all Americans, including those who had been enslaved.4  This backlash included not only violence and intimidation, but also structural barriers to equality, including poll taxes, literacy tests, grandfather clauses, residency requirements, and disenfranchisement laws.  Importantly, these disenfranchisement laws were not passed in a vacuum -- they were enacted along with an expansion in penal provisions that criminalized behavior freed slaves were thought to commit more often, such as vagrancy, petit larceny, and bigamy, resulting in mass incarceration of those who had been enslaved.5 

Put simply, disenfranchisement laws “were one arrow in a quiver of laws such as the now-prohibited literacy tests and poll taxes, which were racially neutral on their face but which segregationists used to prohibit minorities (and to a large extent, poor whites) from voting.”6 The civil rights movement removed many arrows from this quiver (for example, the 24th Amendment to the United States Constitution invalidated poll taxes), but disenfranchisement laws have endured.  Indeed, the United State’s “War on Crime” policies have resulted in the mass incarceration of many of our citizens, particularly those of color, thereby undermining many gains from the Civil Rights Movement, including gains in voting rights.

Present Day Disparate Impact

The United States disenfranchisement laws are among the world’s most severe.  Other countries do not restrict the voting rights of citizens who have completed their sentences -- yet many states in the United States refuse to allow such individuals the right to vote. As a result, at least 5.3 million Americans, 2 million of whom are African-American, are barred from having their voices heard in our political process.  Nearly 4 million of these people are released from prison, but still cannot vote.  The impact is even greater in a practical sense, since many people incarcerated in local jails cannot vote, even if the law does not prohibit them from doing so.  In their book, Locked Out, Jeff Manza and Christopher Uggen estimate that 6 million Americans were unable to vote election day 2004, either because of disenfranchisement laws or because they were in jail.

Vermont and Maine are the only two states that do not have any laws depriving people the right to vote because of a criminal conviction.  The remaining 48 other states have constructed a variety of legal barriers: 2 states permanently disenfranchise people with a criminal conviction; 8 states permanently disenfranchise at least some people with criminal convictions; 20 states disenfranchise those in prison, on parole, and on probation; 5 states disenfranchise those in prison and on parole; and 14 states disenfranchise those in prison.  Some states require individuals to pay all fines, fees, and surcharges associated with a criminal conviction before registering to vote, constituting a modern-day poll tax. (For more detailed information about the laws in individual states, please read Criminal Disenfranchisement Laws Across the United States (PDF)).

Today, race neutral reasons are offered to support the continued use of disenfranchisement laws.  Proponents of these laws, for example, assert that a felony conviction is a mark of bad citizenship and that enfranchising individuals who have committed a felony will pollute the ballot box. As one commentator put it, “If you aren’t capable of behaving yourself in society, you shouldn’t be allowed to make decisions about how society is governed.”7  Of course, this argument ignores the fact that people who have committed crimes can, and often do, transform their lives to become law-abiding citizens.  Still others insist that felony disenfranchisement laws have no practical impact, since those who engage in criminal behavior are not likely to vote anyway.  This assertion, however, is disproved by a recent study of the voting patterns of individuals in New York, Ohio, and Connecticut, revealing that prior to their convictions, individuals with a criminal record voted at about the same rate as those in the general population.8 

Whatever the intent behind these various disenfranchisement laws, there is no question that they disproportionately affect communities of color. As a nation, we imprison millions of our citizens. Indeed, we are the world’s leading jailer, incarcerating people, especially African American males, at much higher rates than other countries in the world. For example, while 1 in 30 men between the ages of 20 to 34 is behind bars, for African American males the figure is 1 in 9.9  At these rates of incarceration, 3 in 10 of the next generation of African American men can expect to lose the right to vote at some point in their life.

The Need for Legislative Change

For the most part, judicial challenges to these disenfranchisement laws have not been successful. For example, in Richardson v. Ramirez, 418 U.S. 24 (1974), the United States Supreme Court held that state felony disenfranchisement laws do not violate the Equal Protection Clause of the 14th Amendment. Courts have also held that disenfranchisement laws do not run afoul of the Voting Rights Act of 1965.  (See, e.g., Johnson v. Bush, 405 F.3d 1214 (11th Cir. 2005); Haydn v. Pataki, 449 F.3d 305 (2d Cir. 2006)).

Though there continue to be various court challenges under state constitutions, legislative action presents the most promising means of reform. Importantly, in their recent study, Public Attitudes Toward Felon Disenfranchisement in the United States, Professors Manza, Brooks, and Uggen found that public opinion is largely in favor of restoring to the right to vote to people who have been convicted of a crime. Thus, legislators need to be reminded that their support of voter enfranchisement will not result in loss of popular support.

One promising piece of legislation is the Democracy Restoration Act, a federal bill that offers a model for reform.  The Act would restore voting rights in federal elections to the nearly 4 million people who have been released from prison and are living in our communities.10 

Enfranchisement: Remedies and Recommendations

At the State Level:

  • Repeal permanent/lifetime bans on voting by people with criminal records.
  • Eliminate waiting periods for enfranchisement once the sentence has been completed.
  • Work with corrections departments and departments of probation and parole to assist people in becoming how they can have their right to vote restored and assisting them through these processes.
  • Establish a presumption of restoration.

1. Westbury v. Sanders, 376 U.S. 1, 17-18 (1964).
2. Erica Wood & Neema Trivedi, “The Modern-Day Poll Tax: How Economic Sanctions Block Access to the Polls, Clearinghouse Review Journal of Poverty Law and Policy, May-June 2007.
3. Id. at 32.
4. Id. at 31.  See also New York State Bar Association, Special Committee on Collateral Consequences, “Re-entry and Reintegration: The Road to Public Safety” at 304.
5. Id. at 32.
6. New York State Bar Association, “Re-entry and Reintegration.” at 304.
7. Steve Bowers, Coddling Criminals: Give Felons the Vote, June 20, 2005, available on the Political Gateway website
8. Ernest Drucker & Ricardo Barreras, “Former Prisoners and the Franchise: Those people don’t vote anyway... do they?” The Black Commentator, Nov. 4th , 2004.
9. Pew Center on the States, One in 100: Behind Bars in America 2008, at 3. 
10.Additional information about this bill can be found at Brennan Center for Justice web site. In addition, Senators Russ Feingold and Jack Kemp authored an editorial about the importance of this pending legislation, which can be found on Senator Russ Feingold's website.

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