Voting is a Fundamental Right: Time For Congress to Legislate Like It Is, by Jordan Walsh

Last week in Philadelphia, President Obama gave a powerful and poignant speech in which he outlined the various horrors of mass incarceration in the United States, and the immediate need for reform. The United States has the highest percentage of incarcerated persons of any developed nation, and, what‘s more, is home to extreme post-felony conviction collateral consequences that serve to prevent many U.S. citizens from assimilating back into society, even decades after they are released from prison. These additional penalties and restrictions include denial of employment, loss of access to public housing and subsidies, bans on education funding and grants, and in many states, loss of civic rights & duties, including juror eligibility and the right to vote. Without the ability to function as full members of society, ex-felons are far more likely to re-offend and punishments for the same crime often increase with each offense; children of incarcerated parents often demonstrate symptoms of trauma, and are exponentially more likely to have criminal records and spend time in prison themselves. The overall economic and moral drain on our nation is undeniable. And, while the incarceration of 1% of our population, with an additional 2% simultaneously in government custody, such as on parole or probation–many of them for non-violent felonies–hurts all American families, the racially disparate impact of mass incarceration, at minimum, cannot be ignored.

While the myriad policies that have contributed to our current state of mass incarceration did not all necessarily have racially-motivated intent, the same cannot be said for the constriction and abridgment of the right to vote as to ex-felons. Felony disenfranchisement as a state legislative practice was largely a response to the Fifteenth Amendment, which guaranteed the right to vote for all male citizens, regardless of race. By 1869, twenty-nine (of thirty-seven) states had enacted felony disenfranchisement statutes in some form. Their original popularity in the U.S. is thought by some to have been tied to elitist desires to limit the electorate for classist reasons, and felony disenfranchisement also served as a de facto replacement for property requirements for voting, the last of which were abolished in 1856.

However, in the post-Reconstruction and twentieth-century Jim Crow eras, felony disenfranchisement became part of a group of strategies tailored at targeting the civil rights and basic human equality of African-Americans. State lawmakers purposely and proudly targeted for disenfranchisement those convicted of crimes thought to be more common in communities of color—such as arson or burglary—while exempting more serious crimes such as murder from their ambit. The protection of the white vote, white legal supremacy and of course, segregation itself, was paramount. Those states with the highest percentage of African-American populations, and specifically prison populations, have also historically been those with the strictest restrictions on ex-felon voting. The result has been that about 8% of black adults in this nation are disenfranchised due to felony convictions. In several Southern states—including swing states Virginia and Florida–that number is approaching 25%. Currently, over 5.8 million Americans are being denied their right to vote in this fashion.

As of 2014, only sixteen of the fifty American states have no restrictions whatsoever on post-prison release ex-felon voting, and only two of those sixteen allow people to vote while in prisons: Maine and Vermont. This is in direct contrast to our allies, Canada and Israel which have no restrictions on voting post-conviction, as well as the European Court on Human Rights, which ruled in 2005 that de facto prisoner voting bans are a rights violation. Felony disenfranchisement comes in various forms in the United States, from total and permanent, to five-year waiting periods, to parole and/or probation; reinstatement procedures vary similarly and can be automatic, only upon notification, or can often require detailed applications and even payment of fines. Eleven states currently still disenfranchise some people for life. Many ex-felons report issues with reinstatement including state-failures in the notification procedures, or denial of applications for voting rights over minor issues such as typographical errors. Worse, ten states even disenfranchise citizens for some misdemeanors.

In the past decade there has been a decided move across states to restore voting rights to some or all ex-felons— this past month Virginia has taken action to restore voting rights via elimination of certain fee requirements for restoration applications. Until recently however, it has been almost entirely one-sided, politically-speaking. For example in Iowa, Democratic Governor Tom Vilsack restored voting rights former felons with an executive order in 2005, but it was reversed by his GOP successor in 2011. Current Florida Governor Rick Scott did likewise when he took office in 2007—reversing his predecessor and instituting a 5 year wait period before a person can even apply for reinstatement. This move, of course, likely benefitted Scott in his own subsequent reelection campaign as, statistically, ex-felons—at least those of color– are thought to support Democrats. It is even thought by some that the outcome of Bush v. Gore in 2000 in Florida was directly influenced by felony disenfranchisement. Notably Jeb Bush has also acted to constrict ex-felon voting rights—purging them form the Florida voter rolls on more than one occasion. That the GOP elite have heretofore been reticent to see the civil rights issue inherent in these policies, is sadly, less than shocking.

Nationally—finally–we’re seeing a different picture emerge. While the GOP ranks have held firm in their refusal to protect voting rights at-large, some of the more Libertarian-leaning members of the party have begun to express interest in working across the aisle to enact federal legislation to protect the voting rights of at least non-violent criminals. Sen. Rand Paul, who represents Kentucky, a state with one of the worst felony disenfranchisement rates in the nation, introduced a bill last session which would have restored federal voting rights to those once convicted of non-violent crimes. Sen. Paul has famously been in favor of restoration of voting rights for several years, and his support draws much media attention to the issue. He is not the only 2016 Presidential candidate in favor of the issue, however, nor is his stance necessarily the strongest. Sen Lindsey Graham (S.C.) has expressed agreement with “second chances” as to restoration of voting rights for former felons, as has former Sen. Rick Santorum. Other GOP hopefuls have as yet been less supportive. Paul’s bill, as noted, however, would only restore voting rights to those convicted of non-violent offenses, and he has stated that he is unsure he would be willing to go further. (It should be noted that Sen. Paul, like his GOP colleagues, has consistently failed to speak out against racially biased voter I.D. and early voting policies which are also at least arguably aimed at voter suppression.) However that there is bi-partisan support on even this one facet of the mass incarceration cycle is truly societal progress, and it is a progress Democrats should jump at the chance to enact into federal law if more movement is to be had legislatively any time soon.

Secretary Hillary Rodham Clinton, as early as 2005, was pushing for unilateral federal restoration of voting rights to former felons upon completion of probation or parole, regardless of offense. As Senator from New York she introduced bills to do so, first in 2005 and again in 2007. They did not advance without bi-partisan support. 2016 Candidate Rodham Clinton has announced her intent to make mass incarceration and its disastrous effects a central piece of her platform, which also includes a focus on expansion of voting rights access broadly. While restoration of voting rights to ex-felons seems to be gaining bipartisan steam, it remains to be seen exactly how Sec. Rodham Clinton intends to effectuate the other major criminal justice-related policy changes that will be needed to stem the tide of mass incarceration if elected, but President Obama’s recent Executive actions could provide a blueprint, should Congress remain reticent. More, her husband’s disavowal of his own role in the creation of the mass incarceration boom seems designed to make sure their policy stances are publicly aligned with each other, as well as with President Obama.

Her main Democratic challenger, Sen. Bernie Sanders, to date, has not expressly discussed felony disenfranchisement on the campaign trail at length, nor are racial justice and mass incarceration issues specifically discussed on the issues page of his website, as his focus is more on economic injustice. However, Sen. Sanders is clearly aware of the issue as he correctly distinguishes between apathetic non-voters and those not permitted to vote in his own discussion of voter turnout. He has also spoken out against institutionalized racism versus law-abiding black citizens. More, he represents one of the two states with no restrictions on post-conviction voting—Vermont—so this is not an issue affecting his current constituency, as with Sen. Paul. It should be noted of course, given the racial history of felon disenfranchisement, that Vermont and Maine are two of the most-majority white states in the nation with 94% white populations to the nation’s 63%, and only 1% black populations on average to the nation’s over 13%–thus the major rationale for many of the restrictions was never as present in those states. The other Democratic candidate, former Maryland Gov. Martin O’Malley was responsible for signing into law a bill with reinstated the voting rights of 50,000 of his constituents in 2007; sadly, his successor vetoed a bill which would have gone even farther in Maryland this year.

Mass incarceration, and the desperate cycle it creates, are a scourge on our nation, and a danger to our children, and to our future. Both parties need to work together to enact policy reforms, and this means choosing to nominate a candidate willing to face and effectuate the changes needed to restore social justice and further the push towards racial equality. The eradication of felony disenfranchisement—at least for those who have been released and/or completed their sentence–is a wonderful and attainable first step. The 2016 electorate should demand such policy reforms of their candidates for office.



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