This paper considers several modern perspectives on why felony disenfranchisement is detrimental to the country, such as the bad precedent it sets and criminal justice as a tool for rehabilitation, as well as why it continues to be seen in a favorable light. It also highlights the Democratic Party’s renewed interest in fighting disenfranchisement laws nation-wide and further outlines how some states are moving towards an end to the laws with the support of their constituents. Drawing from this information will show the need to completely restore voting rights to felons, even while still imprisoned, except for in exceptional circumstances like treason.
A Brief History
The history of felony disenfranchisement began during the Post-Civil War era after the passage of the Thirteenth Amendment abolished slavery nationwide. However, the Amendment itself introduced an exception that allowed states to require mandatory labor for prison inmates. In order to utilize this exception, many Southern states had begun designing new criminal laws that explicitly targeted citizens of color (Kelley, 2017). After all, if they were just criminals and sentenced to prison, those states could work them as hard as they would like – continuing to force black citizens into labor roles without actually calling them slaves.
Adding insult to injury, states eventually started expanding their existing felony disenfranchisement laws to a broader scope of all felonies instead of just a small selection (such as treason). After realizing that these laws would affect their white citizens as well, some states even began limiting the crimes that would disenfranchise a voter to only crimes they believed black citizens were likely to commit (Kelley, 2017). This resulted in a full system that effectively removed the rights of many black citizens.
The most common argument for maintaining felony disenfranchisement laws is the idea that convicted felons should lose their voting rights as part of their punishment for doing something wrong. This kind of mindset is also known as social contract theory – a philosophical view that every citizen establishes a contract to help form the society in which that person lives. When that person breaks the contract, such as is done by committing a crime against the community, then their political obligations, which help form the community, are revoked as a part of that breach of contract.
However, there are arguments against this mindset. At face value, the act of removing voting rights contradicts one of the core principles the United States was founded on – that colonists thought it unfair not having any representation in England’s government despite having to pay taxes. Despite being in prison, inmates do still need to pay taxes on any income they make while incarcerated, and are still paying taxes to state and federal governments that have chosen not to represent them.
The act also undermines the idea of criminal justice as a system of rehabilitation. Treating prisoners fairly helps to ensure that they will make a positive re-entry into the greater society after their sentence is complete. Allowing them to vote further encourages them to be aware of and participate in the political climate outside of prison. Through voting inmates can voice their support for candidates that might bring changes for them either in prison or after they have left. Staying active within the community that they wronged, even in the smallest of ways, can be extremely valuable despite the view of social contract theory.
An alternate and interesting perspective on felony disenfranchisement is the simple fact that it sets precedent for other forms of disenfranchisement, such as mandatory testing as a requirement to vote. There are many pitfalls with that idea, though. Testing itself does not come with any guarantee of being a good person or voting in a way that is productive and constructive to society. For example, sociopaths are often rather intelligent people despite their ability to manipulate others. Testing is also only a generic measure of one’s competence and does not necessarily measure skills that are more specific, such as their competency regarding foreign and domestic policy issues affecting millions of people (Somin, 2018). Just like with felony disenfranchisement, testing would allow the government to target specific groups of people that would likely fail on specific parts of their arbitrary guidelines in order to remove voting rights from citizens that would vote against them.
Giving an idea of why politicians might want to renew interest in felony disenfranchisement laws takes a little bit of data. Consider that around six million Americans have lost their voting rights (Gonchar, 2014). Further, all but two states have laws that strip voting rights for felony convictions (NCSL, 2018). A politician might see those numbers and think about all the lost opportunity – all the voters that might favor their party and turn the tide of elections.
That is exactly the kind of approach the Democratic Party sees in the issue. While they might argue from the perspectives discussed, it is difficult not to see it all tainted in the light of improving the party’s odds and it is easy to see why. According to the Pew Research Center, about 67% of African American voters identify as Democrats and around 84% say they lean Democrat even if they do not identify as one (2018). Those are astonishing numbers to have as far as demographic support goes.
The numbers do not stop there, though. Those numbers are made even more appealing when you consider the racial disparities of disenfranchisement across the states. It comes as no surprise that African Americans are incarcerated far more in the Southern states. For example, more than 20% of the African American population in Florida, Kentucky, Tennessee, and Virginia are prohibited from voting due to disenfranchisement (Holodny, 2018). That is many potential voters with high chances of voting in favor of the Democrats.
The interest does not stop with potential political gains, though. For example, part of what sparked much debate in the state of Florida was the simple fact that it was being challenged in court by civil rights groups such as the ACLU (Ballotpedia, 2018). A U.S. District Court judge declared that Florida’s process for restoring voting rights was unconstitutional – violating the First and Fourteenth Amendments – though that ruling was later appealed and stayed in a U.S. Court of Appeals (Ballotpedia, 2018). Despite the defeat, the issue had already taken a spotlight and continued onwards to become a new ballot measure for the 2018 election.
Ending Felony Disenfranchisement
The United States remains the only country that strips voting rights from convicted felons on such a wide scale (Kelley, 2017). Most states restore voting rights after being released from jail, after completing parole or probation, or after some waiting period after that – but there are some outliers that require manual restoration such as receiving a pardon from the governor. However, simply having a process that restores voting rights does not always mean that voting rights are restored.
Studies have shown that some states’ disenfranchisement laws are so complex that election officials do not even understand them. These misunderstandings cause officials to spread incorrect information or process applications incorrectly, resulting in eligible voters not getting registered or not even trying to vote (Kelley, 2017). Due to this, even if the state does restore rights, getting them back can still be a long and arduous process that the person should not need to go through at all.
Back in 2014, despite not having any authority to do so, then Attorney General Eric Holder urged all states to revisit their disenfranchisement laws and restore voting rights to felons (Gonchar, 2014). Disenfranchisement laws have generally been upheld by the Supreme Court, citing section two of the Fourteenth Amendment, which broadly mentions “other crime” as an exception to voting rights. This means that states continue to hold the rights to establish and enforce the rules on how and which people can vote.
Even so, most states have reversed direction on the matter – at least to some degree. Losing voting rights has generally returned to an “all felonies” definition in most states, reversing some states’ attempts at targeting specific crimes likely to be committed by black citizens (Kelley, 2017). In fact, the majority of Americans do support restoring voting rights. A recent HuffPost poll shows that “some 63 percent of the public say that individuals who’ve committed a felony should have their right to vote restored after they have entirely completed their sentences” (Levine & Edwards-Levy, 2018). That holds true with the recent example in the state of Florida, where voters approved a new state amendment taking the state from an extreme position of never restoring voting rights to automatically restoring them without delay after completion of the sentence, including probation and parole (Ballotpedia, 2018). While the state amendment certainly faces more battles ahead, it identifies an important step that better represents the people.
Modern felony disenfranchisement laws are mostly based on racist origins – laws from the Jim Crow era that have yet to be reversed. Rather than acknowledging this fact, some people prefer simply to pivot to another perspective that justifies its continuance, such as social contract theory. However, the United States needs to recognize that it as an extreme outlier when it comes to incarceration, with an incarceration rate over double that of the next highest country (Holodny, 2018). These higher incarceration rates coupled with these disenfranchisement laws also mean record numbers of people ineligible to vote.
Regardless of any political motivations each party might have for ridding or not ridding the country of these laws, the core of the problem is that inmates are still citizens. They still pay taxes. They have their own political opinions. They deserve to be represented in our government. Disenfranchisement should be reserved for only serious crimes constituting a true betrayal of the United States, such as with treason or terrorism. No other felonies rise to the level of warranting any loss of voting rights at all. While states are taking steps in the right direction, waiting until these people get out of jail or finish off their parole or probation is just softening the blow without truly fixing the problem altogether.
Given the complexity of disenfranchisement laws and their history of targeting individuals who gained hard fought rights after the Civil War, felony disenfranchisement should be considered a civil rights issue that is long overdue for correction. States have abused their authority for long enough, and the federal government should take responsibility and step in to protect convicted felons from having a fundamental right stripped away for no good reason.
Ballotpedia. (2018). Florida Amendment 4, Voting Rights Restoration for Felons Initiative. Retrieved from https://ballotpedia.org/Florida_Amendment_4,_Voting_Rights_Restoration_for_Felons_Initiative_(2018). Gonchar, M. (2014, February 18). Should Felons Be Allowed to Vote After They Have Served Their Time? Retrieved from https://learning.blogs.nytimes.com/2014/02/18/should-convicted-felons-be-allowed-to-vote-after-theyve-served-their-time. Holodny, E. (2018, January 3). Millions of American adults are not allowed to vote — and they could change history. Retrieved from https://www.businessinsider.com/what-if-felons-could-vote-2017-7. Kelley, E. (2017, May 19). Racism & Felony Disenfranchisement: An Intertwined History. Retrieved from https://www.brennancenter.org/publication/racism-felony-disenfranchisement-intertwined-history. Levine, S., & Edwards-Levy, A. (2018, March 21). Most Americans Favor Restoring Felons’ Voting Rights, But Disagree On How. Retrieved from https://www.huffpost.com/entry/felons-voting-rights-poll_n_5ab2c153e4b008c9e5f3c88a. National Conference of State Legislatures. (2018, December 21). Felon voting rights. Retrieved from http://www.ncsl.org/research/elections-and-campaigns/felon-voting-rights.aspx. Pew Research Center. (2018, March 20). Trends in party affiliation among demographic groups. Retrieved from https://www.people-press.org/2018/03/20/1-trends-in-party-affiliation-among-demographic-groups. Somin, I. (2018, May 10). Can We Help Save Democracy by Requiring Voters to Pass a Test of Political Knowledge? Retrieved from https://reason.com/volokh/2018/05/10/can-we-help-save-democracy-by-requiring.