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Felony Disenfranchisement:

Social and Legal Implications in 2016

Dennis Ellis

University of Missouri- St. Louis

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Abstract

A review of the relevant literature and opinions on felony disenfranchisement. Social and legal

scholars battle on a topic that effects about six million Americans who fall under disenfranchised

status. Constitutional law and case law are used to build a framework for discussion of the

collateral effects disenfranchisement has on the American electorate especially for minorities.

Finally, some suggestions and opinions on the future are discussed as an attempt to satisfy

multiple parties is considered.

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Introduction

Felony disenfranchisement or the loss of voting rights due to a felonious conviction has significant implications not only for those convicted but for all three tiers of government – municipal, state, and federal. The passing of the Civil Rights Act of 1964 and more importantly The Voting Rights Act of 1965 was the beginning of universal suffrage in the United States as it was at this point that impediments to African-American votes were deemed unconstitutional (Department of Justice, 2015). These acts specifically sought to extend the voting rights guaranteed in the Fourteenth and Fifteenth Amendments that were not being afforded to African-Americans due to state regulations on disenfranchisement and Jim Crow laws from the Reconstruction and Segregation periods (Department of Justice, 2015). Key language of the Fourteenth and Fifteenth Amendments were the basis for this act including (U.S. Const. Amend, XIV, § 2; U.S. Const. Amend. XV, § 1):

“Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,* and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude”

This language written between 1866-1870 allowed for disenfranchisement due to criminal acts but not due to race or ethnicity. States would spend the next 95 years continuing to deny voting rights to African Americans through the use of Jim Crow and vagrancy laws which discriminately focused on offenses for which whites could target blacks (Tonry, 2011). While these laws deemed it illegal to disenfranchise based directly on race, they did not prevent governments from criminalizing various activities and developing sentencing mechanisms that disproportionally effected blacks and by extension have disenfranchised a substantial portion of the black male population (Alexander, 2012; Tonry, 2011). The implications here are vast but most importantly two questions become important: what would America look like if (1) pre-1965 blacks would have been equally protected according to federal law and (2) tough crime control policies and the War on Drugs had not targeted blacks?

Disenfranchisement does not strictly effect blacks of course, but a look at 2010 correctional statistics courtesy of Uggen, Shannon, & Manza (2012) shows that of (1) 30,623 prisoners, 11,969 are African American, (2) of 19,421 parolees, 6,602 are African American, (3) of 54,916 felony probationers, 16,367 are African American, and (4) of 106,024 total persons under correctional management, 35,172 are African American. Missouri’s total disenfranchisement rate is 2.32% while the black population of Missouri is disenfranchised at 6.88% offering another indication of the disproportionate effects on African Americans who make up 11.8% of the total Missouri population (Uggen, Shannon, & Manza 2012; United States Census Bureau, 2015). Felony disenfranchisement of any race limits our political system by removing a substantial

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number of potential votes from the total voting pool and is an infringement Eighth Amendment rights regarding cruel and unusual punishment. Furthermore, the extended absence of these rights after sentence completion is reflective of dictatorial control of the populous and inhibits appropriate democratic procedures.

Literature Review

Arguments in favor of restricting the voting rights (disenfranchising) those under correctional supervision and in some cases those whose actual supervision has ended but who are still recognized as criminal violators seem to fall under conservative ideology regarding social control and punishment. To a degree this is accurate, but disenfranchisement has been the practice of 48 states since 1792 beginning in Kentucky; Maine and Vermont are currently the only states who do not disenfranchise (Hull, 2006). The Fourteenth Amendment explicitly allows for criminal disenfranchisement with the Fifteenth Amendment’s clause regarding race as a factor and some further case law acting as restrictions making it difficult to attribute these laws simply to conservatives; various practices such as the War on Drugs and its effect on the prison population and by extension the voting population are more applicable to the conservative ideology. There are two categories in the disenfranchisement debate: legal and social, and each has five main points of contention. These are interrelated but each looks at the issue from a slightly different angle.

From a legal standpoint those in favor of disenfranchisement refer the constitutionality regarding the Fourteenth Amendment saying that it explicitly allows for disenfranchisement outside of relevant case law (Farrakhan v. State of Washington, 2004). Karlan (2004) argues that the Eighth Amendment does not allow for permanent disenfranchisement due to it excessive punishment clause. Another caveat of constitutionality comes to question in regards to federal elections in which some argue that the Fourteenth Amendment bars the federal government from legislating here due to sovereignty but others argue that Congress does have this right in federal elections (Hansen, 2005; Metzger, 1999). In Hayden v Pataki (2006) the U.S. court of Appeals ruled 8-5 in favor of the Voting Rights Act of 1965 not including felony disenfranchisement. In her dissent Judge Sotomayer (2006) argued that the Section 2 of the Fourteenth Amendment and the Voting Rights Acts of 1965 were contradictory but left that to Congress to review. Voting while incarcerated is another topic with some arguing for the deterrent effects and disenfranchisement as a form of punishment and others arguing that allowing felons to vote in prison may in fact help them to develop a civil social tie which could help upon reentry (Aitken, 2006; Manza & Uggen, 2006). This final legal issue is that of automatic restoration with arguments ranging from being a more individualized process similar to clemency and others arguing that once the debt has been paid to society, the offender should regain certain rights (McDonnell, 2013; Scott, 2011).

Social arguments revolve around the topics of race, mental capacity, restitution, social contracts, and party affiliation and these arguments tend to come more from opinion pieces than legal scholarship or decisions. At a Legal Affairs Debate Club event in 2004 one of the proposed questions pertained to felons losing their voting rights due to societies inability to trust their judgement; Roger Clegg compares felon judgement to that of children and those with mental

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illness noting a lack of trustworthiness in their opinions while Marc Mauer of the Sentencing Project notes that barring felon votes on trustworthiness is no different than barring those with prejudices and that a democratic society is hurt overall by not allowing this vote. The question of race is discussed by both men separately with Clegg (2006) saying that between the Fourteenth Amendment’s explicit language and further state legislation, disenfranchisement laws are not racially motivated and serve the interest of justice; Mauer (2004) argues that the context of restrictions on literacy and poll taxes are inherently racially motivated and that states used these along with the War on Drugs as controls on the black vote. Social contract theory is the third contention here as was initially the works of Locke and Hobbes in the 1600s and is based on the idea that humanity has given up an anarchic nature to form societies which calls for certain levels of respect and responsibility. The argument here relating to felon disenfranchisement is that by virtue of their crimes they have broken the social contract. Brooks (2005) argues in favor of the broken contract citing the nature of crimes being against the state (society) as well as questioning why the loss of voting rights would not act as a deterrent for criminal activity; Ewald (2004) argues the spuriousness of voting rights and incarceration and implies that the state must find more valid reasons to disenfranchise than simply the conviction of a crime. The fourth argument here pertains to restitution with Reed and McKenna (2006) proposing that withholding voting rights until restitution is completed makes sense in terms of keeping all facets of a criminal sentence together; a 2004 lawsuit by the American Civil Liberties Union (ACLU) points out that the impoverished nature of those correctional management and implies that restitution requirements are simply another “poll tax” (LaCorte, 2006) Finally, in regards to party affiliation, Will (2005) argues that Democratic focus on “root causes of crime” attract most felon votes yet Berendt (2005) argues that the blue collar and non-union nature of work available for felons would attract them to the Republican party.

Loss of Voting Rights: Collateral Effects on African Americans and the Electoral Process

Missouri has three voting restrictions for those convicted of crime including: while under confinement, during the duration of probation or parole for a felony, and after a felony of misdemeanor conviction “connected with the right of suffrage” (Missouri Revised Statutes, 2016). This is consistent with 19 other states and only slightly more restrictive than an additional 18 states and Washington D.C. (ProCon.org, 2016). 10 states maintain the right the permanently disenfranchise voters and 2 do not restrict at all; this implies some legitimacy to correctional voting restrictions as 96% of U.S. states disenfranchise at least for a period of time (ProCon.org, 2016). However, this legitimacy has complications and challenges not the least of which is the impact disenfranchisement has on minorities, especially African Americans who are disenfranchised at a rate four times greater than other races (The Sentencing Project, 2016). The same Sentencing Project (2016) report also indicates that in four states – Florida, Kentucky, Tennessee, and Virginia – at least 20% of the African American population is disenfranchised. Three of those states had their electoral votes go to Donald Trump, the Republican nominee, in the recent election – a strong indication of potential bias in those states criminal justice systems (CNN.com, 2016). Had one-fifth of the electorate in those states been able to vote in this election, we might have seen 57 electoral votes switch sides to elect Hillary Clinton (CNN.com, 2016; The Sentencing Project, 2016). The social and legal implications of this alone should place

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felony disenfranchisement as one the top issues for the upcoming administration and should the 6.1 million voters currently disenfranchised be allowed to vote in 2018 or 2020, we may see some interesting changes in the electoral college (The Sentencing Project, 2016). This would seem to need either a Constitutional Amendment or a Supreme Court ruling, each of which would conflict with the Tenth Amendment and its state sovereignty provisions.

Discussion

Voting is a special right in this country that cannot be disrespected or unappreciated and while disenfranchisement has its issues, I find no reason to abolish the practice. I do see room for reform and I see where a Supreme Court decision or more specifically a Constitutional Amendment could remedy the situation by requiring voting rights be reinstated upon release from incarceration. Maine and Vermont could still allow prisoners to vote but the other 48 states could not restrict the vote for probationers and parolees unless they were found to be in violation or convicted of a further crime. Unfortunately, even this provision could and likely would be abused by states looking for some control of the voting population. Abuses such as these are difficult to define and fight in the courts due to our complicated legal codes. State rights are highly valued in this country and they should be but so should human rights and once someone has served their sentence and is at least trying to reintegrate into the community, they should be given the benefit of voting rights. I highly doubt this would satisfy many factions in our country but it would be a step in the right direction and we could continue to study disenfranchisement in terms of its effects on the individual and society as a whole in terms of the electorate.

Conclusions

In studying felony disenfranchisement there seems to be yet another disparity for African Americans in the criminal justice system and one that has had perhaps generational effects. If blacks had not been the victim of Jim Crow laws after the Civil War, we may be looking at a substantially different social landscape. Votes lost at that time could have elected different representatives and leaders and now, 150 years later we are perhaps seeing the long-term effects of such laws. The vote is a sacred type of right much akin to gun possession and to remove that right from minority communities has perhaps left them civilly defenseless to long-term government control both criminally and socially.

The future seems bleak here as the recently gained Republican control of our government likely means stricter measures for the next few years but perhaps the earlier mentioned argument regarding blue-collar worker’s tendencies towards the Republican Party with prompt the branches to review these laws. My speculation is that it will come up considering that 57 electoral votes might have changed sides had one-fifth of the African American population in Florida, Tennessee, and Kentucky not been disenfranchised (The Sentencing Project, 2016). Furthermore, as correctional reform has been deemed as pressing in our society, I would expect re-enfranchisement to evolve as a subsequent movement rather than a concurrent one as there is some risk to automatic restoration in an era of blanket reform.

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References

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American Civil Liberties Union (2004, October 21). ACLU of Washington Lawsuit Challenges Voting Restrictions Based on Financial Debts. Retrieved November 14, 2016, from https://www.aclu.org/news/aclu-washington-lawsuit-challenges-voting-restrictions-based-financial-debts

Aitken, J. (2006, December 14). Prisoners don't care about their right to vote. Retrieved November 14, 2016, from http://www.telegraph.co.uk/news/uknews/1536945/Prisoners-dont-care-about-their-right-to-vote.html

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Ewald, A. (2004). An ‘agenda for demolition’: the fallacy and the danger of the ‘subversive voting’argument for felony disenfranchisement. Columbia Human Rights Law Review, 36.

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Hull, E. (2006). The disenfranchisement of ex-felons. Philadelphia, PA: Temple University Press.

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