Wednesday, December 2, 2020
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Felon Disenfranchisement: How American Voices Go Unheard

By Jessica Dine , in Election Integrity Human Rights Opinions Prison Reform , at November 22, 2020

Can we really call ourselves a democracy if we don’t let everybody participate in the process? The 5.2 million Americans rendered disenfranchised by criminal convictions wouldn’t say so, but their vote doesn’t count. Disenfranchisement is the term used to describe the temporary or permanent loss of voting rights imposed on citizens after a felony conviction. Once released into society, convicted felons face discrimination in almost every area of life, from employment to housing. They must work, pay taxes, and abide by the rules of a society in whose workings they often no longer have a say. 

At five percent of the world’s population, the United States holds a quarter of its prisoners, the vast majority of whom lose the right to vote while in prison and often afterwards as well. Because disenfranchisement policies are governed by state legislatures, they vary wildly among states across the United States. Only three states allow voting from prison, while the rest enact policies ranging from waiting periods, fines and reinstatement applications to permanent disenfranchisement regardless of sentence. Eleven states with the most severe policies account for over half of the disenfranchised population, and 77 percent of disenfranchised citizens are residents of their own communities. 

The policy of criminal disenfranchisement originated in the European common law notion of civil death, in which convicted criminals were essentially removed from society. It was part of a punitive justice approach that stripped felons of most rights, including property, healthcare and education. American colonists elected to continue the policy in the context of a society that conferred voting rights only to an eligible 6 percent of the population, while disenfranchising the rest based on gender, race, literacy and economic status. 

During the post-Reconstruction era, existing disenfranchisement policies were tightened and explicitly used, alongside Jim Crow laws like literacy tests and poll taxes, to decrease black political participation. Today, many of these disenfranchisement policies endure as a relic to an unsavory past, though the United States has evolved to allow universal voting on the basis of equal participation, and our justice system now claims rehabilitative intent.  

With the advent of the war on drugs in 1971 and the following era of mass incarceration, the disenfranchisement rate increased exponentially alongside the rising prison population. Over four decades, the incarceration rate has increased by 500 percent, and the disenfranchisement rate rose from 1.17 million in 1976 to 6.1 million in 2016. This increase is also decidedly not race-neutral; much research has been done on the explicit and implicit bias inherent in the criminal justice system, pervading its laws, the actions of its police, its sentencing guidelines and its outcomes. This systemic racism culminates in and is perpetuated by a process that has left one out of 13 voting-age black men ineligible to vote, a rate that ranges in some states to a frightening one-fifth. Black Americans make up 13.4 percent of the U.S. population, but one third of the disenfranchised population, and are four times more likely to lose their right to vote than other American adults. 

The United States now holds the dubious honor of disenfranchising more citizens per capita than any other democracy. And no other democracy disenfranchises citizens permanently for non election-related offenses. In fact, since 2005, the European Court of Human Rights has consistently ruled that even a ban on voting from prison is a violation of prisoners’ rights and contradictory to free and fair elections. And yet an overwhelming majority of the United States does not allow voting from within prisons, while a significant portion extends that prohibition beyond the sentence itself. 

The impact of this anti-democratic practice is not just felt within prison walls. Prison-based gerrymandering distorts the political power of legislators when prison populations serve to artificially inflate the population of areas in which the prisoners do not vote, live or work. According to a 2002 study, the outcomes of several U.S. Senate races and at least one presidential election might have been different if not for widespread disenfranchisement. 

Moreover, for a system that claims rehabilitative intent, the tough-on-crime approach has proven remarkably pro-crime, as voting power has been linked to lower recidivism rates. Disenfranchisement can promote feelings of alienation and antisocial behavior in past offenders, hindering reintegration into society and increasing the likelihood that they will offend again. 

Of the arguments in favor of disenfranchisement, three are most common: to protect the laws from harmful changes (but the Supreme Court has ruled against denying a vote based on how it might be cast), to prevent voter fraud (but disenfranchisement is not limited to election-related offenses), and to preserve the purity of the ballot box (but some vague moral criterium is not and should not be related to the execution of a fundamental American right). Disenfranchisement serves as no legitimate deterrent when compared to the threat of a sentence itself, and it serves to undermine both our democratic process and our justice system’s rehabilitative goals. 

The Supreme Court has faced a number of cases challenging the constitutionality of disenfranchisement policies. The equal protection clause of the Fourteenth Amendment, which guarantees equal protection under the law and has been interpreted to prohibit discriminatory restrictions on voting, is consistently invoked. But disenfranchisement policies that are race-neutral on their face, if not in their execution, have been able to make their way through. The Voter Protection Act of 1965, designed to prevent racially exclusive voting laws, has been effectively neutered since the 2013 Shelby County vs. Holden decision, which allowed jurisdictions with a history of voting discrimination to enact new laws without federal oversight. 

Nevertheless, state legislatures have made real progress in reducing the impact of disenfranchisement. Since its peak in 2016 at 6.1 million, the disenfranchisement rate has dropped to 2004 levels following a series of state-level restoration efforts. In 2020, Washington, D.C. joined Vermont and Maine in allowing convicted felons to vote while incarcerated. In 2019, Congress introduced the Voter Restoration Act, which would grant a vote to all citizens living in the community, regardless of past criminal conviction or probationary status. 

But the actions of legislatures are inherently subject to changes in the political climate. For example, Florida’s Board of Executive Clemency enacted a policy that automatically restored voting rights to felons upon release in 2005, but it was reversed in favor of a five-year waiting period in 2011. In 2018, Floridians voted to approve an amendment that automatically restored voting rights to 1.4 million felons with a completed sentence. Meanwhile, in Iowa, a 2005 automatic vote-restoration policy was reversed in 2011, though it was restored in 2020. 

Continued denial of the fundamental right to vote renders all other rights theoretical at best. A policy that renders certain demographics disproportionately voiceless is antithetical to any notion of democracy, whatever its alleged justification. The American democracy should work to earn that moniker, and in the court of public opinion, the verdict is clear: a report published in 2012 found a clear majority of respondents in favor of restoring voting rights to former felons after leaving prison, including those on probation or parole. 

Legislatures should unanimously enable the restoration of this fundamental right, for the good of society at large, and those with a political voice must continue to speak loudly for those without. Until then the patchwork of disenfranchisement policies serves to underpin the racial, economic and geographical inequalities that destabilize our democracy every day.