Suppressing Votes the Old Fashioned Way
Over six million American citizens are prohibited from voting by state penal disenfranchisement laws, laws that bar individuals who have been convicted of a crime from voting. (I follow the lead of Professor Beth A. Colgan in using the term penal disenfranchisement rather than felon disenfranchisement because some states impose disenfranchisement for certain misdemeanors.) Over four million of these individuals remain disenfranchised even though they are not incarcerated but because they live in one of the 31 states that prohibit voting by people who are on probation or parole or who have completed their sentence entirely. As one commentator put it, penal disenfranchisement “is one of the original sins of our democracy, outlasting its peers such as literacy tests and poll taxes…No other law…disenfranchises so many people.” Further, penal disenfranchisement has a monumental impact on racial minorities, particularly in the South. Almost forty percent of the 6.1 million penally disenfranchised individuals are African-Americans. And some Southern states disenfranchise almost twenty percent of voting age blacks. On a nationwide basis, disenfranchisement laws prohibit one out of every thirteen African-American adults from voting.
The specifics of penal disenfranchisement laws vary from state to state regarding such issues as what crimes provide a basis for disenfranchisement, how long disenfranchisement lasts, and what process people who are disenfranchised must undertake in order to have their voting rights restored. Until 2020, Iowa was the only state to permanently disenfranchise all felons, but the Iowa governor recently signed an executive order restoring the right to vote once offenders, other than those convicted of homicide, complete all terms of their sentence. On the other hand, Maine and Vermont do not disenfranchise any offenders and permit them to vote by absentee ballot even while they are incarcerated. Most states fall somewhere in between. And most permit restoration of voting rights after the completion of incarceration and probation or parole.
States also have a range of policies regarding whether citizens with pending financial obligations relating to their convictions such as unpaid fines, forfeitures and restitution are eligible to vote. Professor Colgan, who recently completed a comprehensive examination of this issue, determined that disenfranchisement based on unpaid financial obligations related to law violations (wealth-based penal disenfranchisement) was far more widespread than commonly assumed. She discovered that people convicted of disenfranchising offenses in forty-eight states and the District of Columbia may be prohibited from regaining their right to vote until they discharge the economic sanctions imposed on them. This requirement can present a very high barrier for individuals. A study in Alabama, for example, indicates that the median amount owed is almost $4,000. This form of disenfranchisement potentially bars up to a million people or more from voting, most of whom are low income or minorities or both.
Further, in some states such as Florida, even if disenfranchised individuals can afford to discharge their financial obligations, no systems exist to determine precisely how much money they owe. And those seeking restoration of their voting rights are required to swear an oath under penalty of perjury that all their debts are paid, information that may literally be impossible for them to discover. This problem was caused by the Florida legislature. In 2018, 65 percent of Floridians voted for Amendment Four, a ballot initiative that restored felons’ right to vote, but the legislature had different ideas and passed a bill requiring these formerly incarcerated individuals to pay off all of the fines and fees they incurred during the criminal process. Florida governor Ron DeSantis promptly signed the legislation. A district court struck the law down holding that it amounted to an unconstitutional poll tax, but the Eleventh Circuit reversed, and the Supreme Court allowed the Eleventh Circuit’s decision to stand with Justices Sotomayor, Kagan and Ginsburg dissenting. The law bars many Florida citizens from voting, disenfranchising one out of ten adults and over 20% of Black males.
Related to penal disenfranchisement is the problem faced by individuals who are incarcerated but remain eligible to vote. These individuals are incarcerated either because they have been arrested and are in a local jail awaiting further proceedings or because they are serving a sentence for a non-disenfranchising misdemeanor. As of 2017, approximately 745,000 people fell into this category. Nearly two-thirds of them were incarcerated because they had been unable to post bail, and almost all of the remaining 263,000 were serving a sentence for a misdemeanor that did not result in disenfranchisement. Although most of these individuals are eligible to vote, few are able to do so. This is so because local elected officials and jail administrators generally do not set up procedures for inmate voting and often lack interest or knowledge or both about voting laws. Of the inmates themselves, many are not aware that they maintain the right to vote while incarcerated. And, it is not easy to acquire voter registration forms or an absentee ballot while incarcerated. And once again, the problems with voting faced by individuals in local jails disproportionately impact people of color. Nationally, almost half of all people in local jails are African American or Latino.
Another important dimension of penal disenfranchisement is that, for offenders who have lost their voting rights, the procedures for restoration of such rights are very complicated. Most of the disenfranchised individuals lack resources and find it difficult to navigate these procedures. The problem is compounded because many state election agencies are under-funded and poorly staffed, and state election officials often are not well-versed in their own state’s laws. The net effect of all this is that in most states a very small percentage of disenfranchised individuals, often less than three percent, ever succeed in having their right to vote restored. Thus, what may have been intended to be a temporary disenfranchisement not uncommonly lasts a lifetime.
Although in the last twenty-five years some states have made their disenfranchisement laws less onerous, penal disenfranchisement is the only major surviving restriction on the voting rights of adult citizens, and offenders continue to constitute the largest single group of American citizens who are prohibited from voting. This, in part, reflects the fact that many offenders are young African-American males who have little political power. It is also unhelpful that laws making it harder to vote have become a weapon of political advantage in an increasingly partisan political landscape. An example is the recent experience in Florida discussed above. As Guy Padraic Hamilton-Smith and Matt Vogel point out in their discussion of disenfranchisement’s impact on recidivism, when it comes to disenfranchisement, the United States is an outlier. No country in the world disenfranchises more of its citizens on a per capita basis. Many other democratic countries no longer automatically disenfranchise felons. And in some, such as Canada, Denmark, Spain and others, incarcerated citizens are permitted to vote. Moreover, first-world democracies that do disenfranchise generally limit its duration and impose it only on individuals who have committed election-related offenses. Except for the United States, disenfranchisement in the modern world is mostly employed by non-democratic regimes that have high rates of incarceration and are economically underdeveloped.
The effects of disenfranchisement on individual offenders are harsh. Disenfranchisement is sometimes referred to as “civil death,” and a federal district judge characterized it as “the harshest civil sanction imposed by a democratic society.” This was so, said the judge, because “the disenfranchised is severed from the body politic and condemned to the lowest form of citizenship, where voiceless at the ballot box…the disinherited must sit idly by while others elect his civil leaders and while others choose the fiscal and governmental policies which will govern him and his family.” Further, prohibiting offenders from participating in the normal activities of citizenship impedes their ability to function as autonomous adults. It interferes, for example, with their capacity to discharge the obligations of a parent and makes it harder to escape the stigma of moral inferiority which is one of the effects of a criminal conviction.
Disenfranchisement has deep roots in western political thought and, as a result, in American law. Professor Alex Ewald argues that it is rooted in three different political ideologies, liberalism, civic republicanism, and white supremacy, each of which has had a profound effect on American policy-making. By liberalism, Ewald refers to the individualist, rights oriented, contractual approach to politics that regards people as having an equal right to pursue their own private interests subject to their agreeing to abide by the rules of conduct that societies impose. Civic republicanism, by contrast, is somewhat more demanding in that it emphasizes the need for citizens to promote the public good through the development of good character, sometimes called virtue. As for white supremacy, Ewald points out the unpleasant truth that it is a political ideology that has been ingrained in many Americans for many years, and that disenfranchisement was among the first tools that southern whites used to remove blacks from politics after Reconstruction.
Liberal ideology justified disenfranchisement based on the notion that an individual who committed a crime violated his contractual obligations to other citizens and thus forfeited the right to participate in making the rules that governed society. Such thinkers as Locke, Rousseau and Mill made arguments in this vein. Civic republicanism, which regarded the polity not merely as a contract between self-interested individuals but as an entity whose nature depended on the virtue of its citizens, considered disenfranchisement warranted because the body politic needed to be protected from individuals whose transgressions demonstrated an absence of virtue. This approach drew heavily on the work of the French philosopher Montesquieu. And in the post-Reconstruction era, white supremacy led to the passage by southern states of numerous laws targeting offenses that law enforcement could use to arrest and convict blacks. Many such offenses did not even call for a prison sentence, but they provided the basis for disenfranchising ten times as many blacks as whites. And this technique for suppressing voters was approved by the country’s highest courts. In 1871, a Virginia court described prisoners as “slaves of the states,” and in 1896, the Mississippi Supreme Court noted that the purpose of the state’s constitutional convention of 1890 was “to obstruct the exercise of the franchise by the negro race” in ways not precluded by the Fifteenth Amendment which barred direct discrimination based on race. And, in 1897, the U.S. Supreme Court endorsed such indirect approaches referring to “the alleged characteristics of the negro race.”
In the modern era, however, in which suffrage has become the birthright of all American citizens, the ideological justifications that were used historically to justify disenfranchisement have become largely vestigial. The heart of liberal ideology today is not the idea of a metaphysical contract between the individual and society but rather a commitment to protecting the fundamental rights of individuals, and the insistence that such rights cannot be infringed in the absence of a specific and important governmental interest. And the Supreme Court has held the right to vote to be fundamental, and that is how it is widely understood. Nor does modern civic republicanism call for disenfranchisement. Civic republicans believe that politics requires virtue, but also that participation in politics contributes to the creation of virtue. Participation in politics, including voting, does this by educating people towards greater civic consciousness. And white supremacy is no longer a publicly acceptable basis for disenfranchisement or any other policy.
As the traditional justifications for disenfranchisement have evaporated, no other compelling rationales have emerged. Advocates of disenfranchisement have always had difficulty explaining what is accomplished by depriving offenders of the right to vote. And now that voting is regarded as a fundamental right, that difficulty has become virtually insurmountable. This is so because the idea that voting is a fundamental right undermines the principal non-punitive justification for penal disenfranchisement, the claim that offenders should not be permitted to vote because they lack the qualities of character or mind that voters ought to possess. We no longer restrict voting to people who are considered to have good character or to possess sufficient intelligence. As a result, as Professor Pamela Karlan explains, “it would be perverse to rely on criminal convictions as evidence that individuals lack qualities that voters are not required to have.” In other words, it is no longer tenable, if it ever was, to justify penal disenfranchisement based on concerns about the effect that offender voting might have on the outcome of elections, i.e., that offenders might vote for undesirable candidates or outcomes.
Thus, the only possible justification for penal disenfranchisement is punitive. And this raises the question of whether disenfranchisement can be justified as a legitimate form of punishment. The four traditional rationales for punishment are rehabilitation, deterrence, incapacitation, and retribution. It is hard to conclude that disenfranchisement promotes any of these goals. Disenfranchisement obviously does not promote rehabilitation. On the contrary, it reinforces the stigma of a criminal conviction and the offender’s sense that he is unwelcome in civil society. Researchers report that many offenders they interviewed made clear that losing the right to vote was a powerful reminder of their status as outsiders.
Nor is disenfranchisement a deterrent. Rather, research discloses that an offender who is able to identify as an active citizen and participate in civic reintegration is more likely to desist from crime and reconnect with social institutions. And courts have acknowledged that disenfranchisement makes recidivism more rather than less likely. This is so because communicating to an ex-offender that he is no longer a member of society can easily become a self-fulfilling prophecy. Incapacitation is also unsatisfying as a justification. Depriving an individual of the right to vote is not going to prevent him or her from offending in the future. Thus, retribution is the only theory of punishment under which disenfranchisement can arguably be justified. But, as Professor Alexander Keyssar explains, disenfranchisement is a particularly “ill-fitting form of retribution” inasmuch as it punishes at the expense of reinforcing the perception of offenders that they are criminals.
Thus, no compelling rationale for disenfranchisement exists, non-punitive or punitive. Nevertheless, the idea persists that moral standing has some place as a qualification for voting, at least as it concerns individuals who have committed crimes. The modern understanding that the franchise is a fundamental right coexists uneasily with the older idea that full membership in the body politic depends on proper behavior, and perhaps even proper beliefs, and that the state can draw a line between the worthy and unworthy. In this connection, Professor Keyssar points out that one of the most important court cases dealing with these issues concerned a Utah law that made it a crime (and therefore a cause for disenfranchisement) for a man to practice or even advocate bigamy. And the New York state legislature once effectively disenfranchised voters whose opinions it disapproved of by refusing to seat five lawfully elected legislators who were Socialists.
Not only have the theoretical bases for disenfranchisement disappeared, but it is indisputable that, beyond its impact on individual offenders, disenfranchisement severely harms the public interest. First, it alienates a group of citizens, numbering in the millions, who we are particularly interested in integrating into society. It is not in the public interest to send a message to people that they are outcasts which is what disenfranchisement does.
Disenfranchisement also inflicts a huge collective harm on the African-American community. It does so by reducing that community’s political power, making it less likely that African-Americans will be able to elect the candidates they believe would best represent them. Possibly, the best example of this is the 2000 presidential election in which George W. Bush defeated Al Gore. In 2000, Florida disenfranchised about 600,000 people including about 10.5% of its adult Black population compared with 4.4% of non-Blacks. If offenders who had completed their sentences had been able to vote, Al Gore likely would have carried Florida by more than 31,000 votes and been elected President. This is not an isolated example. Two scholars, Christopher Uggen and Jeff Manza, concluded that since 1978, the outcomes of seven U.S. Senate races would have been different had offenders been able to vote.
Disenfranchisement also undermines the political power of the Black community in less direct ways. Consider how it interacts with the Census Bureau’s policy of counting incarcerated individuals as residents of the jurisdiction in which they are incarcerated for purposes of the one person/one vote rule, a policy that results in increasing the population of white, rural communities where most prisons are located at the expense of urban minority communities from which most inmates come. Because the prisoners are disenfranchised, legislators representing these districts need not pay attention to their views. Thus, even though Blacks make up a substantial part of the population of their districts, these legislators consistently vote for laws that hurt the Black community, including tough on crime laws designed to keep the prisons in their districts full because of their economic importance. A legislator in rural New York, whose district included eight prisons and 11,000 inmates, once told a reporter that it was good that the inmates couldn’t vote because they would never vote for him.
Thus, the disenfranchised prisoners serve as essentially inert ballast. As a result, scholars compare their inclusion in the population base in the districts in which they are incarcerated to the notorious “three-fifths” clause in the original Constitution which increased the political power of the slave states by including slaves in the population base for calculating congressional seats and electoral votes. In an article entitled “Those People in that Prison Can’t Vote Me Out: The Political Consequences of Racist Felony Disenfranchisement,” Paul Street put it this way: “In a disturbing re-enactment of the notorious three-fifths clause of the U.S. Constitution, whereby 60 percent of the ante-bellum South’s non-voting and un-free (slave) black population counted towards the congressional representation of slave states, 21st century America’s very disproportionately black and urban prisoners count towards the political apportionment (representation) accorded to white and rural communities that tend to host prisons.”
Despite the serious harm that penal disenfranchisement inflicts and the absence of a compelling reason for continuing it, the barriers to its elimination are substantial. Penal disenfranchisement, for example, would appear to be susceptible to a court challenge. As one legal scholar put it, “there are so many arguments against the disenfranchisement of felons that one can only wonder at [its] survival…” But, of course, the matter is not so simple. Consider, for example, an argument that disenfranchisement violates Section 1 of the Fourteenth Amendment which prohibits states from denying any person the equal protection of the laws. Under standard equal protection analysis, courts subject restrictions on suffrage to strict scrutiny, the most exacting level of review. Under strict scrutiny, only a compelling state interest can justify a limitation on the franchise; any proposed restriction must be necessary and narrowly tailored to achieve that interest. And we have already seen that the state interest in maintaining penal disenfranchisement is so weak as to be virtually non-existent. In the early 1970s, three Californians brought an equal protection challenge against California’s permanent disenfranchisement law, and the California Supreme Court agreed that the law was unconstitutional, joining several federal courts that had previously embraced the same analysis. In reaching its decision, the California Supreme Court examined disenfranchisement “[in] the light of [the] evolution of the law of equal protection” and made no mention of Section 2 of the Fourteenth Amendment, which declares that any state which disenfranchises adult males – “except for participation in rebellion or other crime”– will face proportional reduction in its congressional representation.” In 1974, however, in Richardson v. Ramirez, in an opinion by Justice Rehnquist, the Supreme Court reversed, holding that the reference to criminal disenfranchisement in Section 2 “obviated any need to justify it with a compelling state interest.” In dissent, Justice Marshall, joined by Justices Brennan and Douglas, argued simply that penal disenfranchisement “must be measured against the requirements of Section 1 of the Fourteenth Amendment.”
Until Richardson, the Court had essentially disregarded Section 2, and scholars treated it as a Reconstruction-era measure of no lasting significance. The reference to “crime” in Section 2 was thought to relate only to the disenfranchisement of whites who had participated in treasonous acts on behalf of the Confederacy during the Civil War. Scholarly commentary on Richardson has been almost universally critical. Professor Laurence Tribe notes that in important voting rights cases the Court has found that “the reach of the equal protection clause…is not bound to the political theories of a particular era but draws much of its substance from changing social norms and evolving conceptions of equality.” Others have asserted that the 1870 ratification of the Fifteenth Amendment’s prohibitions on restrictions of the franchise based on “race, color, or previous condition of servitude” should be understood to have overridden Section Two. In his book on Justice Rehnquist, Harvard Law Professor David L. Shapiro explains that: “There is not a word in the fourteenth amendment suggesting that the exemptions in section two’s formula are in any way a barrier to the judicial application of section one in voting rights cases whether or not they involve the rights of ex-convicts.” And Professors Manza and Uggen stated that: “The irony of the [Court’s] interpretation…is remarkable. The Fourteenth Amendment was intended to expand voting rights to previously excluded groups, not to allow the states to add new restrictions.”
Regarding Richardson, Professor Ewald asserts that “the Court plucked a phrase from a long-slumbering sentence and breathed new life into it, reading the Fourteenth Amendment in isolation from subsequent Amendments and constitutional jurisprudence. The result was a ruling which cannot be coherently reconciled with a generation of Supreme Court decisions protecting voting rights.” Finally, Professor Keyssar notes that by the early 1970s, penal disenfranchisement was subject to serious logical and judicial challenge and that courts had been hard pressed to define a state interest that it served, but that Justice Rehnquist’s opinion made it unnecessary to find such an interest. Rather, “History had reared its head once again: language drafted during the cauldron of Reconstruction and seemingly aimed at Confederate rebels was invoked to legitimize the disenfranchisement of drug traffickers in the 1980s.”
Thus, the Supreme Court eliminated what was probably the strongest legal argument against penal disenfranchisement. Other potential legal challenges exist, but it is unlikely that any of them could bring about major change. One possible approach is under the Eighth Amendment’s prohibition of cruel and unusual punishment. However, as Professor Bruce E. Cain and Brett Parker note, most courts have relied on non-binding dicta in a 1958 Supreme Court decision and held that penal disenfranchisement is not punitive and, therefore, the Eighth Amendment does not apply. As we have seen, however, it is fairly well understood today that that is no longer the case. In any event, a court faced with an Eighth Amendment challenge would have to address whether the legislative interest behind the particular penal disenfranchisement statute under consideration was punishment. Assuming this was so, the challenger would still face serious obstacles. Eighth Amendment claims generally are of two types (1) “categorical” challenges and (2) “gross disproportionality” challenges. The former asks the Court to impose a categorical rule against a sentencing practice while the latter claims that a particular sentence is “excessive” in the context of a specific crime. Supreme Court jurisprudence and the fact that public opinion is not strongly opposed to all penal disenfranchisement makes clear that a categorical challenge would fail. While there may be a limited set of circumstances in which a gross disproportionality challenge would succeed as, for example, in a case where a minor offense led to permanent disenfranchisement, such a challenge would be of little value in the broader struggle against penal disenfranchisement.
A third possible legal challenge would be based on the discriminatory racial impact of penal disenfranchisement under the Voting Rights Act of 1965 (“VRA”). As discussed, it is undisputed that in most states penal disenfranchisement laws have a differential negative effect on minorities. The overall disparate impact on African-Americans is huge, and because of the policies of the last fifty years that have led to mass incarceration, the number of disenfranchised individuals has grown substantially. Cain and Parker advise that the number of disenfranchised offenders increased from 1.17 million in 1976 to 6.1 million in 2016, and that the latter number includes 7.4 percent of age-eligible Blacks compared to only 1.8 percent of non-Blacks. Given this disproportionate impact, it would appear that a challenge under Section 2 of the VRA, which authorizes claims against qualifications for voting that result in the denial of the right to vote based on race, might be viable. However, three federal courts of appeals have held that Section 2 was not intended to apply to penal disenfranchisement, and a fourth has held that such a claim might be cognizable but only if there was evidence of intentional discrimination in the criminal justice system. Further, the Supreme Court has shown no interest in aggressively supporting voting rights. Thus, the outlook for a Section 2 challenge to penal disenfranchisement is bleak.
Prior to 2013, a challenge under Section 5 of the VRA might have been possible in one of the mostly Southern states that Section 5 covered, states with histories of racial discrimination. “Covered” states were required to “preclear” any changes to their voting rules with the Justice Department or the DC District Court to ensure that they were not discriminatory. However, in 2013, in Holder v. Shelby County, the Supreme Court held that the coverage formula was unconstitutional. And even before Shelby County, Section 5 was an imperfect vehicle for challenging penal disenfranchisement. This was so both because it covered relatively few states and because of the wide variety of ostensibly race-neutral legislative techniques that could be used to prevent individuals who had committed criminal offenses from voting.
Thus, at the present time, for all of the reasons discussed, neither the Fourteenth Amendment, the Eighth Amendment, nor the VRA offers a promising means of challenging penal disenfranchisement in the courts. It would also be misplaced to lodge much hope in the prospect of state legislatures ending or substantially reducing penal disenfranchisement anytime soon. This is so for two reasons. First, as Cain and Parker advise, most of the public is still resistant to abolishing penal disenfranchisement and hesitant even about allowing individuals on probation and parole to vote. Except for individuals who commit very minor offenses, Americans generally do not consider penal disenfranchisement to be overly harsh. And legislators tend not to get too far ahead of their constituents. The second obstacle is the intense partisanship characteristic of modern legislatures and the related perception that granting more voting rights to offenders will benefit one party at the expense of the other. Thus, the likelihood of making substantial legislative progress in the area of penal disenfranchisement in the near future seems slight.
It is worth noting, however, that in 2018 the American Academy of Arts and Sciences created a Commission on the Practice of Democratic Citizenship for the purpose of making recommendations designed to increase citizens’ capacity to engage in their communities, counter rising threats to democratic self-government, and rebuild trust in political institutions. The Commission was chaired by Professor Danielle Allen of Harvard and held 47 listening sessions in cities and towns throughout the country. In 2020, the Commission issued a report entitled “Our Common Purpose: Reinventing American Democracy for the 21st Century” which included 31 recommendations. One of the recommendations was to “restore federal and state voting rights to citizens with felony convictions immediately and automatically upon their release from prison, and ensure that those rights are also restored to those already living in the community.” The Commission’s recommendation is small consolation for the dour state of affairs regarding penal disenfranchisement but, together with the vote of Florida’s citizens supporting Amendment Four, the ballot initiative to restore felons’ voting rights, it indicates that there is support for ending this harmful and anachronistic practice.
