Freeing Up the Right to Vote

When a traffic altercation became a fistfight, Joseph Hayden laid a guy out for good and did thirteen years for manslaughter. Two college degrees later, the New York-based activist is now the public face of a movement to reclaim what prison stole from him and 4.7 million Americans just like him: the right to vote.

Thanks to a patchwork of state disfranchisement laws, nearly five million American inmates and parolees, mostly black and Latino, have no voting rights, according to Right to Vote, a national advocacy group. Currently four states (VA, FL, KY and MS) have permanent disfranchisement, two states (ME and VT) have no disfranchisement and most state policies fall somewhere in between, according to the American Civil Liberties Union.

Felon disfranchisement, seen by critics as an extension of historically biased voting restrictions, has languished below public radar for years. But activists say razor-thin election margins, lawsuits and media coverage are changing that.

"I've been raising this issue since the early 1990s but people only started pay attention after the election of 2000," Hayden, director of the New York-based advocacy group Unlock the Block, said in a telephone interview. "It became an issue after people became aware that 800,000 citizens in Florida couldn't vote. And now there's not a major university in the country that doesn't have someone doing some research on the issue."

Organized campaigns to overturn bans are underway in 10 states, and some level of activity is taking place in several others. This year alone three states have loosened or eviscerated bans, and a handful of lawsuits challenging the practice are inching their way through courts.

On Independence Day, Iowa's Democratic Governor Tom Vilsack ignited a political controversy by eliminating his state's permanent disfranchisement policy and ordering automatic restoration as soon as a prison sentence is completed. State Republicans are reportedly mounting legal attacks.

In Nebraska, lawmakers overturned a permanent disfranchisement policy and substituted a two-year waiting period after a sentence is complete. Rhode Island activists successfully lobbied for the question to go on its 2006 ballot. If passed, parolees and probationers will be able to vote once they leave prison rather than waiting for the completion of their sentence. And in Florida, the state with the highest level of disfranchisement, bi-partisan political pressure is mounting for reform, say observers.

Slow Wheels

Advocates are pushing through the courts as well, and eyes are on a handful of pending cases. The heart of the issue is whether the Voting Rights Act of 1965 was meant to cover felon disfranchisement laws, and courts appear deeply split.

Hayden vs. Pataki, a class action suit filed by Hayden and supported in part by the NAACP, is being considered by the Second Circuit Court of Appeals. In the coming months, that court could decide whether the Voting Rights Act applies to New York's felony disfranchisement statute. If so, the case goes back to trail and "the big fight begins," Hayden said.

In another case, Farrakhan v. State of Washington, judges from the Ninth Circuit Court of Appeals have ruled that The Voting Rights Act did apply to felon disfranchisement laws. To win, however, plaintiffs must show that the impact on minorities resulted from the discriminatory operation of the criminal justice system (that minorities, for example, are arrested and prosecuted more often than whites). According to Right To Vote, 1.8 million African-Americans, or one in 13, are disfranchised.

Perhaps the most closely watched case is Johnson v. Bush, a challenge to Florida's disfranchisement policies filed in 2000 and recently rejected by the 11the Circuit Court of Appeals. Plaintiffs are asking the Supreme Court to hear Johnson. But Laleh Ispahani, voting rights fellow at the ACLU, says even if the court takes the case, it would likely support the lower court's rejection, especially since Justice Sandra Day O'Conner is being replaced.

But by simply agreeing to consider the case, the Court could give juice to activists.

"If the Supreme Court does take the Johnson case ... grassroots campaigns may actually be emboldened in their pursuit of other, state-specific strategies," Ispahani wrote in an email. "These successes could mount and lead to a shift in public opinion on the issue and ultimately result in a favorable Supreme Court decision, as happened with sodomy case law."

Jeff Manza, a sociology professor at Northwestern University who has studied the issue, says he is skeptical that current federal court cases will do more than prime public opinion.

Manza also noted that Republicans have the most to lose by adding millions of Democrat-leaning ex-cons to the voter base. "Republicans are particularly worried about Florida, a state with six million ballots, where [changing the policy] would restore voting rights to 1 million people, 800,000 ex-felons and 300,000 current felons."

So it's not surprising that Red politicians will work to keep the Blue Block well-locked.

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