What if 5.3 Million More Americans Could Vote?

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.