Felony Disenfranchisement Laws

Kenneth W. Mentor
University of North Carolina Wilmington

Introduction

At the center of the controversy surrounding felony disenfranchisement laws is the debate between the desire to punish and deter crime versus a desire to promote and protect civil liberties. Currently, nearly all incarcerated felons, and many with criminal records, are barred from voting. Forty-eight states disenfranchise incarcerated felons, thirty-seven disenfranchise felony probationers and/or parolees, and fourteen disenfranchise ex-felons who have completed their sentences.[i] The disenfranchised population has grown along with the criminal justice system. As the result of a reliance on incarceration, and the impact of felony disenfranchisement on recent elections, disenfranchisement has become an important issue. For example, in the 2000 presidential election, an estimated 4.7 million people were disenfranchised as the result of a felony conviction.[ii]

Background

Many of those disenfranchised for a felony conviction have completed their criminal sentence. Another 1.4 million are on probation or parole. Familiar patterns of racism are apparent, with 13% of the black adult male population, approximately 1.4 million African American men unable to vote. This reflects a rate of disenfranchisement seven times the national average.[iii] Given current laws, 30-40% of black males will lose the right to vote at some point in their lives.[iv]

** Sidebar: State Disenfranchisement Laws

• 48 states and the District of Columbia prohibit inmates from voting while incarcerated for a felony offense.
• Only two states – Maine and Vermont – permit inmates to vote.
• 35 states prohibit felons from voting while they are on parole, 30 of these states also exclude felony probationers.
• Three states deny the right to vote to all ex-offenders who have completed their sentences. Nine others disenfranchise certain categories of ex-offenders and/or permit application for restoration of rights for specified offenses after a waiting period.[v]

**End of Sidebar

Legal Developments

Although the right to vote seemed to have been settled by the Voting Rights Act of 1965,[vi] reliance on incarceration as a primary tool in the war on crime, and the demographics of those who have been disenfranchised, are bringing issues of felony disenfranchisement back to the forefront. Debate over disenfranchisement focuses on whether the practice is a relic of the past or justified by modern conceptions of democratic citizenship. Taking away the right to vote is similar to the medieval practice of “civil death,” where violations of the social contract resulted in loss of citizenship rights.[vii] In contrast to the practice of exclusion, the U.S. Supreme court held in Reynolds v. Sims (1965) that “the right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.”[viii]

The 14th Amendment, ratified in1868, recognizes African Americans as citizens with the right to vote. Section 2 of the Fourteenth Amendment reads:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation  in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.[ix]

The “participation in rebellion, or other crime” caveat served as an opening for Jim Crow legislatures intent on denying blacks the right to vote. Southern states began to develop felony disenfranchisement laws specifically crafted to result in the disenfranchisement of newly freed African American males.[x] Although the right to vote was specifically granted to African Americans with the 1870 ratification of the 15th Amendment, the adoption of disenfranchisement laws continued with relatively few challenges until the 1970’s and 80’s, when these laws were challenged as violations of equal protection and voters’ rights.

**Sidebar: Consequences of State Felony Disenfranchisement Laws

• An estimated 5.3 million Americans, or 1 in 41 adults, have currently or permanently lost their voting rights as a result of a felony conviction.
• Among those disenfranchised, 74% are currently living in the community.
• In 11 states, a conviction can result in lifetime disenfranchisement.
• 12 states disenfranchise more than 10% of their African American population.
• 1.4 million African American men, or 13% of black men, are disenfranchised, a rate seven times the national average. In some states, 1 in 4 black men are prohibited from voting.[xi]

**End of Sidebar

In Richardson v. Ramirez the U.S. Supreme Court denied an equal protection challenge by ruling that Section 2 of the Fourteenth Amendment permits the removal of criminals from voter roles. [xii] Challenges based on the Voter’s Rights Act were similarly unsuccessful as courts refused to strike down felon disenfranchisement statutes because of an absence of causality between the statutes and historical patterns of discrimination.[xiii]

After a period of calm resulting from the failure of challenges based on equal protection and voter’s rights, federal courts of appeals have recently reinstated two challenges to such laws.[xiv] Johnson v. Bush revived a challenge to Florida’ s disenfranchisement laws. In granting summary judgment, the district court held that the disenfranchisement provision in Florida’s 1868 constitution was enacted “with the particular discriminatory purpose of keeping blacks from voting.”[xv] In Farrakhan v. Washington, the court described the “disproportionate impact on minority voting power” and “minority under representation in Washington’ s political process” that resulted from disenfranchisement.[xvi] The Johnson court similarly asked “whether felon status ‘interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.’”[xvii] Each of these cases has resulted in optimism among critics of felony disenfranchisement laws.

**Sidebar: Impacting Elections

“Felony disenfranchisement laws, combined with high rates of criminal punishment, may have altered the outcome of as many as seven recent U.S. Senate elections and at least one presidential election.”[xviii] Research examining the impact of felony disenfranchisement suggests that the Democratic Party would have gained control of the U.S. Senate in 1986 and held control until the present. Results of the 2000 election “would have been reversed had just ex-felons been allowed to vote.” [xix] If disenfranchised felons in Florida had been permitted to vote, “Democrat Gore would certainly have carried the state, and the election.”[xx] Adding to the problems in Florida, where an estimated 600,000 former offenders were ineligible to vote, a flawed list of over 57,000 names was included in the list of felons denied the right to vote.[xxi]

**End of Sidebar

 Future Prospects

Felony disenfranchisement laws are under increased scrutiny. Since 1997, 16 states have taken steps to reform disenfranchisement laws, resulting in more than 600,000 people regaining the right to vote.[xxii] Following the 2000 presidential election, the National Commission on Federal Election Reform unanimously recommended that states not prohibit voting by people who have completed their sentences. [xxiii] As pressures to eliminate overly broad disenfranchisement laws continue, change is likely at legislative and judicial levels.

The public opinion tide may also have turned, with research indicating that 80% of Americans believe persons who have completed their sentence should have their right to vote restored.[xxiv] Support for voting rights even extends to violent felons, with 66% supporting voting rights for those who have served their entire sentence.[xxv] In the debate between a desire to punish and deter crime, versus a desire to promote and protect civil liberties, the latter appears to have greater public support.”[xxvi] If this perspective dominates future debate, further erosion on felony disenfranchisement laws can be expected.

Recommended Readings

Hull, E., (2006). The Disenfranchisement of Ex-Felons. Philadelphia: Temple University Press

Karlan, P., (2004). Convictions and Doubts: Retribution, Representation, and the Debate over Felon Disenfranchisement. 56 Stanford Law Review, 5.

Manza, J., and Uggen, C., (2006). Locked Out: Felon Disenfranchisement and American Democracy. New York: Oxford University Press.

Mauer, M., (2002). “Mass Imprisonment and the Disenfranchised Voter,” in Marc Mauer and Meda Chesney-Lind, eds., Invisible Punishment: The Collateral Consequences of Mass Imprisonment. New York: The New Press.

Uggen, C. and Manza, J., (2004). “Democratic Contradiction? Political Consequences of Felon Disenfranchisement in the United States,” American Sociological Review, 67(6), pg. 794.

Endnotes

[i] Fellner, J. and Mauer, M., (1998) Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States, Human Rights Watch and The Sentencing Project. http://www.soros.org/initiatives/justice/articles_publications/publications/losingthevote_19981001/losingthevote.pdf

[ii] Manza, J., and Uggen, C., (2006). Locked Out: Felon Disenfranchisement and American Democracy. New York: Oxford University Press.

[iii] Fellner and Mauer, pg. 1.

[iv] Marc Mauer, (2002). Felon Voting Disenfranchisement, 12 Fed. Sent. R. 248.

[v] The Sentencing Project (2006). Felony Disenfranchisement Laws in The United States. Washington D.C.: The Sentencing Project. http://www.sentencingproject.org/PublicationDetails.aspx?PublicationID=335

[vi] The National Voting Rights Act of 1965. 42 U.S.C. § 1973-1973aa-6

[vii] Ewald, A.C., (2002). “Civil Death: The Ideological Paradox of Criminal Disenfranchisement Law in the United States,” Wisconsin Law Review, 1045, 1060.

[viii] Reynolds v. Sims, 377 U.S. 533.

[ix] U.S. Constitution, amend. XIV, section 2 (emphasis added).

[x] Schall, J. (2006). The Consistency Of Felon Disenfranchisement With Citizenship Theory, 22 Harvard Blackletter Law Journal 53.

[xi] The Sentencing Project (2007). Federal Voting Rights for People with Convictions. Washington D.C.: The Sentencing Project. http://www.sentencingproject.org/PublicationDetails.aspx?PublicationID=574

[xii] Richardson v. Ramirez, 418 U.S. 24, 56 (1974).

[xiii] Wesley v. Collins, 791 F.2d 1255, 1261 (6th Cir. 1986).

[xiv] Karlan, P., (2004). Convictions and Doubts: Retribution, Representation, and the Debate over Felon Disenfranchisement. 56 Stanford Law Review 5.

[xv] Johnson v. Bush, 214 F. Supp. 2d 1333, 1339.

[xvi] Farrakhan v. Washington, 338 F.3d at 1011, 1017 n.14.

[xvii] Johnson v. Bush, 214 F. Supp. 2d 1333, 1339.

[xviii] Uggen, C. and Manza, J., (2004). “Democratic Contradiction? Political Consequences of Felon Disenfranchisement in the United States,” American Sociological Review, 67(6), pg. 794.

[xix] Uggen, 794.

[xx] Uggen, 792

[xxi] Palast, G., (2000). “Florida’s flawed ‘voter-cleansing’ program.” salon.com. http://dir.salon.com/story/politics/feature/2000/12/04/voter_file/index.html?pn=1

[xxii] King, R., (2006). A Decade of Reform: Felony Disenfranchisement Policy in the United States. The Sentencing Project. http://www.sentencingproject.org/Admin/Documents/publications/fd_decade_reform.pdf

[xxiii] National Commission on Federal Election Reform (2001). http://www.reformelections.org/ncfer.asp

[xxiv] Manza, J., Brooks, C., and Uggen, C., Public Attitudes Towards Felon Disenfranchisement in the United States. The Sentencing Project. http://www.sentencingproject.org/Admin/Documents/publications/fd_bs_publicattitudes.pdf

[xxv] Manza, F., Brooks, C., and Uggen. C., (2002). “”Civil Death” or Civil Rights? Public Attitudes Towards Felon Disfranchisement in the United States.” Institute for Policy Research Working Papers, WP-02-39, pg, 27.

[xxvi] Manza, (2002). pg. 28. http://www.northwestern.edu/ipr/publications/workingpapers/wpabstracts02/wp0239.html