Felony Disenfranchisement

Election Day! It’s the day when citizens who want to be engaged in the political process, get the opportunity to have their say.  Unfortunately, for the nearly six million individuals who are disenfranchised due to felony disenfranchisement laws, Election Day is just a reminder of this basic civil right they are denied.[1]  Felony disenfranchisement occurs when an individual’s right to vote is taken away (either temporarily or permanently) because they have been convicted of a felony.  Forty-eight states and the District of Columbia currently have felony disenfranchisement laws in effect.  Only Maine and Vermont do not.   

The practice of restricting a convicted felon’s right to vote dates back to ancient Greece and Rome.  Certain criminals were denied the right to vote and the right to perform other civic duties.[2]  Its practice in the U.S. began during the colonization.  Voting rights were taken away from convicts who had committed crimes that brought their morality into question, such as fornication.  Later in the history of the U.S., the practice became popular again in the 1800’s in the South when white citizens where attempting to suppress the votes of African Americans.  After the passage of the Fifteenth Amendment, racists could not deny Blacks the right to vote without violating the law.  However, felony disenfranchisement provided a loophole.  Since Blacks were disproportionately convicted of crimes, disenfranchising criminals had the effect of restricting the right to vote of Blacks more than any other group. Although it is difficult to prove racist motivation in enacting felony disenfranchisement laws, it has been shown that the more minorities in a state’s prison system, the more likely a state is to enact felony disenfranchisement.[3]

The Supreme Court upheld felony disenfranchisement in the 1974 case, Richardson v. Ramirez.[4]  The Court ruled that disenfranchising convicted felons did not violate the Equal Protection Clause of the Fourteenth Amendment.  The plaintiffs in this case were three ex-felons in California who had served their sentences and paroles.  However, because of a provision in the California Constitution disenfranchising convicted felons, they were not allowed to vote.  They sued the Registrar of Voters in each of their counties, demanding that they be allowed to register to vote.  The Supreme Court ruled that section two of the Fourteenth Amendment differentiates felony disenfranchisement from other voting restrictions, so it is does not need to be “narrowly tailored to serve compelling state interests.”  

In his dissent, Justice Marshall highlighted four important issues with felon disenfranchisement.  First, states cannot provide any compelling or even a rational interest in disenfranchising felons.  Second, felons who have served their time have paid the debt they owe to society, so why continue to punish them?  Third, felons are affected by government action just as much as any other citizens and therefore should be able to participate in the process.  And fourth, disenfranchisement is a hindrance to rehabilitating felons and helping them to become productive law-abiding citizens. 

Among those who are opposed to felony disenfranchisement, there is debate amount the best way to challenge it.[5]  Some advocate for the Supreme Court to address the issue again, while others believe that this is an issue best reserved for state legislatures.  If the Supreme Court were to rule on the issue, it would become law for all states.  However, this would require the Court to overrule itself, which it does not often do.  If the issue is left to the states, as it is now, that will result in different rules all across the country with no uniform practice.  

 Felony Disenfranchisement Laws Nationwide [6]

There are five different types of disenfranchisement laws that exist today: permanent disenfranchisement for all felons, permanent disenfranchisement for some felony convictions, temporary disenfranchisement for the duration of incarceration, voting rights returned after completion of prison sentence and parole, and voting rights returned after completion of sentence, parole, and probation.  The right to vote is such an important facet of American society.  It’s too important to have the lack of uniformity we see in our current system.  Some might say that there are plenty of issues that are left up to states to make their own policy decisions regarding.  But, I would argue that because this felony disenfranchisement has the potential to deny a basic civil right from such a large portion of society, it should be held to a higher standard.  Marriage is a civil right that states were once allowed to deny to people. Each state was able to determine who could get married in that state. However, after it became evident that some states were discriminating against Blacks, the Supreme Court acted and established national law on the issue.[7]  Because Blacks and Hispanics are convicted at higher rates than their white counterparts, denial of voting rights because one is a felony has a heavier burden on them.  They are the groups that will be denied their rights.  Because of the potential for this to become a legalized discrimination on the basis of race, the policy should be outlawed.

International Disenfranchisement Laws

A look at other nation’s laws on felony disenfranchisement shows that the U.S. is not in sync with much of the international community.  The U.S. is a party to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), treaty.  In 2001, the committee that monitors the implementation of the treaty, the Committee on the Elimination of Racial Discrimination, issued a report expressing concerns with the U.S.’s felony disenfranchisement laws.  In reaffirming the importance of the right to vote, the Committee found that the U.S. was violating UN principles of equity and fairness because such a large percentage of minorities are disenfranchised by the laws.  

In many other nations, Canada and South Africa for example, even inmates are are allowed to vote.  Other nations have prohibitions against felons voting, but the crimes for which this is allowed are well defined and narrow.  This is a huge contrast to the overly broad American practice, which prohibits nearly everyone with a felony conviction. 

Arguments against Felony Disenfranchisement

Felony disenfranchisement is unconstitutional and the practice should be outlawed. Although felony disenfranchisement laws appear to be race neutral, they have a discriminatory impact.  Not only is this evident to U.S. citizens, but as shown above, the international community notices as well.  Felony disenfranchisement affects the Black community more than any other in the country.  While around 2% of the entire voting-age population is disenfranchised, the number is nearly 7.5% for the Black voting-age population.  Thirty-six percent of the total disenfranchised population is Black, and 13% of all Black men cannot vote due to disenfranchisement.

Furthermore, disenfranchising felons serves no legitimate interest and it protects no ones rights.  It is an outdated practice that needs to be discontinued.  Citizens are not safer by denying the voting rights of felons.  Like Justice Marshall highlighted in Richardson, disenfranchisement also hinders the ability of felons to become engaged in society in a productive way.  If the Court will not overrule the practice, then it is up to state legislatures to pass legislation allowing felons to vote.

Bethany J. Peak

Blogger, Criminal Law Brief

*I would like to thank my classmate, Justin Clayton, for sharing with me some of his prior research on international felony disenfranchisement laws.

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[1] Felony Disenfranchisement, http://www.sentencingproject.org/template/page.cfm?id=133

[2] Figler, Bailey, A Vote for Democracy: Confronting the Racial Aspects of Felon Disenfranchisement, 61 N.Y.U. Ann. Surv. Am. L. 723.

[3] Figler, Bailey, A Vote for Democracy: Confronting the Racial Aspects of Felon Disenfranchisement, 61 N.Y.U. Ann. Surv. Am. L. 723, 731.

[4] Richardson v. Ramirez, 418 U.S. 24 (1974) http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=418&invol=24. 

[5] Walton Liles, William, Challenges to Felony Disenfranchisement Laws: Past, Present and Future, 58 Ala. L. Rev. 615 (2007).

[6] Link to Disenfranchisement Law Map

[7] See, Loving v. Virginia, 388 U.S. 1 (1967), http://www.law.cornell.edu/supct/html/historics/USSC_CR_0388_0001_ZO.html.