The disenfranchisement of voters with criminal records disproportionately affects African Americans and removes an important tool for reducing recidivism, said a Washington and Lee University law professor.
In an article for a symposium on voting rights, Prof. Nora V. Demleitner argued that the growth of the “criminal justice-impacted population” over the last three decades, combined with the spread of exclusionary voting laws, potentially affects those with criminal records from entering the polling booths.
In 1974, The United States’ highest judicial body gave disenfranchisement a nod. The U.S. Supreme Court ruled felon disenfranchisement constitutional under Section Two of the 14th Amendment.
However, while pathways to voting have opened up for felons in some states, other ways to deny voting for such individuals continue.
Maine and Vermont permit prison inmates to vote. But Kentucky “has lifelong disenfranchisement provisions, including for misdemeanor convictions,” and Virginia’s constitution still mandates lifelong disenfranchisement, according to Demleitner.
In Virginia, a gubernatorial action “almost automatically re-enfranchises” a person, she said. Yet, she cautioned that feelings of restoring civil rights could vary by governor or political party.
“We can’t allow this ongoing patchwork that serves to disenfranchise people and removes their voting rights because of an often long ago conviction,” the professor said. “It’s a stain on our democracy.”
One reform later had a controversial catch. “Florida overwhelmingly voted for Amendment Four,” Voting Rights Restoration for Felons Initiative (2018) “to abolish almost all post-sentence felon disenfranchisement in the state” (not applying to people convicted of murder or a felony sexual offense) said Demleitner. However, the state’s Republican governor Ron DeSantis signed in a bill in June that requires felons to pay fines, fees, and restitution in connection with their cases, reported The Miami Herald.
Critics responded to the governor’s move. The American Civil Liberties Union of Florida, National Association for the Advancement of Colored People Legal Defense and Education Fund, and Brennan Center of Justice at the New York University School of Law then filed a federal lawsuit to challenge “a new state law that creates wealth-based hurdles to voting and undermines Floridians’ overwhelming support for Amendment Four,” said the ACLU in a statement.
From a sheer population standpoint, Demleitner said that about 19 million Americans have a felony record.
“In addition to convicted prisoners, there are about 550,000 people in jails around the country awaiting trial,” she said. “They have not lost their voting rights because the law deems them innocent.”
Disenfranchisement laws can be confusing to people, Demleitner explained.
“Many do not understand that they retain the right to vote. They may not have the ability to get ballot materials, and often they are concerned that voting may be held against them at trial or in other later proceedings.”
While 17 percent of pre-trial detainees in the Cooke County Jail in Chicago, Illinois voted in the 2016 U.S. presidential election, most jails around the country failed to break one percent in voting participation, said Demleitner.
“Stunningly by 2016, in a fair number of states, over 20 percent of the voting age minority population, largely African Americans, were barred from voting; this also includes the State of Tennessee”—which she said have confusing disenfranchisement rules.
“Lack of a satisfying justification might be less distressing were the excluded group smaller and less racially skewed,” said the law professor
According to Demleitner, opponents of re-enfranchisement claim that convicted felons are too uneducated to vote, or are not “model citizens.” Opponents also claim that the threat of stripping away one’s voting rights can deter people from committing crimes.
She said that arguments against re-enfranchisement are assumptions that convicted felons: are too uneducated to vote, are not model citizens who should vote, are more likely to vote Democrat, and other arguments.
“So, incapacitation is our sole argument. But there’s really no reason to incapacitate an offender from the voting booth, perhaps unless they have committed voting fraud.”
Voting after prison has positives, the law professor said.
“Citizens returning from imprisonment, who can vote, have lower rates of recidivism than those who are barred from voting,” she said. “Re-enfranchisement signals a return to citizenship.”
With the possible exception of people convicted of “crimes that directly attack democracy and the state” and voter fraud, she argued people who has served their sentence should not be denied the privilege of voting.
“We need a national debate about the franchise,” said Demleitner.
The full article can be downloaded here.