What if 5.3 Million More Americans Could Vote?
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This is a big year for American democracy. Hundreds of thousands of new voters are not only registering, but are actually showing up at the polls. States whose primary races have never counted before are suddenly the center of attention. Voters in Wyoming, Mississippi, North Carolina, and Kentucky, who have long gone ignored during primary season, finally find themselves with a voice and a vote. This year they matter.
Despite this, our democracy still falls far short of its promise to be a government that truly represents the will of its citizens. Across the country there are 5.3 million Americans who are denied the right to vote because of a felony conviction in their past. Nearly 4 million of these people are not in prison; they live, work, pay taxes, and raise families in our communities, but remain disenfranchised for years, often for decades, and sometimes for life.
States vary widely on when they restore voting rights to former prisoners. Maine and Vermont do not disenfranchise people with convictions; even prisoners may vote there. Thirteen states and the District of Columbia disenfranchise people only while they are incarcerated; five states disenfranchise those who are incarcerated or on parole, but allow people on probation to vote; 20 states disenfranchise people in prison, on parole, and on probation; and 10 states permanently disenfranchise some categories of people who have completed their correctional supervision. Kentucky and Virginia are the last two remaining states that permanently disenfranchise all people with felony convictions, unless they apply for and receive individual, discretionary clemency from the governor.
Jim Crow Roots
To fully appreciate how these laws compromise our democracy, it is important to understand their deep roots in the troubled history of American race relations. In the late 1800s these laws spread as part of a larger backlash against the adoption of the Reconstruction Amendments -- the Thirteenth, Fourteenth, and Fifteenth Amendments of the U.S. Constitution -- which ended slavery, granted equal citizenship to freed slaves, and prohibited racial discrimination in voting.
Over time, Southern Democrats sought to solidify their hold on the region by modifying voting laws in ways that would exclude African-Americans from the polls. Despite their newfound eligibility to vote, many freed slaves remained effectively disenfranchised.
Violence and intimidation were rampant. The legal barriers employed -- including literacy tests, residency requirements, grandfather clauses, and poll taxes -- while race-neutral on their face, were intentional barriers to African-American voting.
Felony disenfranchisement laws were a key part of this effort. Between 1865 and 1900, 18 states adopted laws restricting the voting rights of criminal offenders. By 1900, 38 states had some type of felon voting restriction, most of which disenfranchised convicted felons until they received a pardon. At the same time, states expanded the criminal codes to punish offenses that they believed targeted freedmen, including vagrancy, petty larceny, miscegenation, bigamy, and receiving stolen goods. Aggressive arrest and conviction efforts followed, motivated by the practice of "convict leasing," whereby former slaves were convicted of crimes and then leased out to work the very plantations and factories from which they had ostensibly been freed. Thus targeted criminalization and felony disenfranchisement combined to produce both practical re-enslavement and the legal loss of voting rights, usually for life, which effectively suppressed the political power of African Americans for decades.
The disproportionate impact of felony disenfranchisement laws on people of color continues to this day. Nationwide, 13 percent of African-American men have lost the right to vote, a rate that is seven times the national average. In eight states, more than 15 percent of African-Americans cannot vote due to a felony conviction, and four of those states -- Arizona, Iowa, Kentucky, and Nebraska -- disenfranchise more than 20 percent of their African-American voting-age population.
These statistics mirror stark racial disparities in the criminal justice system. A recent study by the Pew Center on the States revealed that 1 in 100 Americans is now behind bars. That figure is startling enough, but the study also reports that 1 in 9 African-American men between the ages of 20 and 34 is in prison.
The Ripple Effect of Disenfranchisement
Felony disenfranchisement laws do not only impact those who lose their voting rights. Entire communities lose their political capital when their citizens cannot vote. Denying the vote to one person has a ripple effect, dramatically decreasing the political power of urban and minority communities.
Evidence suggests that disenfranchising the head of a household can discourage his or her entire family from civic participation. Many people's first experience with voting or political engagement comes through their parents -- by joining them at a town meeting, attending a school board hearing, or accompanying them into the voting booth. A parent can provide critical "how-to's" of voting, including such basics as how to register and where to vote. In fact, of the various factors included in the study, the parent's political participation had the greatest effect on the child's initial decision to vote.
Andres Idarraga, who recently had his right to vote restored by a recent change to Rhode Island's law, explained, "coming from a family in which voting had rarely, if ever, been discussed, this was a new beginning."
Throughout the country, minority communities have lost political influence thanks to felony disenfranchisement laws. In the last 25 years, as incarceration rates skyrocketed and African-Americans were sent to prison at a rate seven times that of whites, the political power of minority communities has been decimated. It's a simple equation: communities with high rates of people with felony convictions have fewer votes to cast. Consequently, all residents of these communities, not just those with convictions, lose their political influence.
What's more, even when people with felony convictions are eligible to vote, they are often de facto disenfranchised due to bureaucratic barriers. In 2003, Alabama could not process more than 80 percent of applications within statutory time limits, and completely failed to respond to dozens of applications. And in New York, Brennan Center surveys have repeatedly uncovered widespread confusion and misinformation among elections officials. In 2005, one third of local election boards mistakenly advised that people could not vote while on probation, and many illegally required unnecessary documentation before allowing people to register.
Dispelling Disenfranchisement Myths, Restoring Democracy
Fortunately, there are signs of progress. Advocates, policy-makers, and some unusual allies have made great strides towards restoring voting rights, and have built significant national momentum towards building a more just and inclusive democracy.
Critics of voting restoration argue that disenfranchisement is an appropriate punishment for breaking the law. But in fact, many in law enforcement have come to believe that felony disenfranchisement laws do more harm than good. The American Probation and Parole Association recently released a resolution calling for restoration of voting rights upon completion of prison, finding that "disenfranchisement laws work against the successful reentry of offenders." Many realize that, in terms of public safety, bringing people into the political process makes them stakeholders, helping to steer former offenders away from future crimes. As one Kentucky prosecutor wrote, "Voting shows a commitment to the future of the community." Branding people as political outsiders by barring them from the polls disrupts reentry into the community and does not do anything to keep people from re-offending. There is absolutely no credible evidence showing that continuing to disenfranchise people after release from prison serves any legitimate law enforcement purpose. Disenfranchisement has nothing to do with being "tough on crime."
Since 1997, 16 states have reformed their laws to expand the franchise or ease voting rights restoration procedures. Recent reforms include an executive order signed by then-Governor Tom Vilsack in Iowa which restored voting rights to 80,000 Iowa citizens on Independence Day, 2005. On Election Day 2006, Rhode Island voters were the first in the country to approve a state constitutional amendment authorizing automatic restoration of voting rights to people as soon as they are released from prison. The Rhode Island Department of Corrections became a voter registration agency, and now every individual is handed a voter registration form on the day they leave prison. In April 2007, Florida Governor Charlie Crist issued new clemency rules ending that state's policy of permanent disenfranchisement for all felony offenders. Also in April 2007, Maryland Governor Martin O'Malley signed a law streamlining the state's complicated restoration system by automatically restoring voting rights upon completion of sentence.
This law also eliminated the requirement that people in Maryland pay off any court-imposed fees and fines before being able to register to vote.
And just last month, Kentucky Governor Steve Beshear eliminated some of the burdensome requirements his predecessor imposed on people trying to get their voting rights restored. People with felony convictions are disenfranchised for life in Kentucky and can only regain their right to vote by receiving clemency from the governor.
Beshear's predecessor had required all applicants to provide three character references and write an essay explaining why they should get their right to vote back. While Kentucky still has a long way to go, Beshear's executive action was certainly an important step.
Still, millions of U.S. citizens continue to be denied the right to vote. This year, Congress has decided to address the issue on a national level. Senator Russ Feingold and Representative John Conyers will soon introduce the Democracy Restoration Act, a bill that seeks to restore voting rights in federal elections to all Americans who have been released from prison and are living in the community. In February, Senator Feingold, joined by former Republican Congressman and Bush I cabinet member, Jack Kemp, wrote, "once the criminal justice system has determined that [people] are ready to return to the community, they should receive the rights and responsibilities that come with that status, and should not continue to be relegated to second-class citizenship."
The energy and optimism spreading across our country this election season is palpable. But our democracy stands for nothing if not the fundamental tenet that each citizen is entitled to one vote, and each vote counts the same regardless of who casts it. The promise of our democracy will never be realized if 4 million Americans remain disenfranchised. It is time to end this last blanket barrier to the ballot box.
Erika Wood is deputy director of the Democracy Program at the Brennan Center for Justice at NYU School of Law where she directs the Right to Vote project. Her most recent publication is "Restoring the Right to Vote."