Prisoners and the Ballot: The Last Hurdle of Democracy?

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Voters insert their printed ballots into an automated ballot box that scans and tallies the votes and deposits the printed ballots into a locked container. Division of Agriculture photo by Fred Miller

As more states appear willing to consider granting voting rights to individuals with criminal records, one hurdle still remains: giving America’s huge incarcerated population access to the ballot.

Only a tiny minority of prisoners in the U.S. are allowed to vote. In 48 states, voting from prison—which is legal in most of the European Union and in countries as disparate as Indonesia, South Africa, Canada, and Kenya—is either severely restricted or outlawed altogether, the New Yorker reports. Alabama, Mississippi, and Alaska allow some prisoners to vote, depending on their crimes.

Each state has a list of disqualifying crimes; a state representative in Mississippi has called his state’s list, which includes check-forging but not child molestation, “irrational.” Only Maine and Vermont extend the franchise to all incarcerated people.

With a disproportionate number of African Americans comprising the 2.3 million individuals behind bars, barring the ballot to prisoners has also been raised as a stealth way of continuing historic black disenfranchisement at the polls.

In a paper last year, Washington and Lee University 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, is a “stain on democracy.

It also may make a crucial difference in 2020 electoral races at both the state and local levels. According to The Christian Science Monitor in a 2003 article, if Floridians with criminal records had been allowed to vote in the 2000 elections, Al Gore would have captured the majority of the state’s voters and likely gone on to become president.

Giving the incarcerated voting rights is seen by some as part of the rehabilitation process.

“When a person is incarcerated, the thing that remains is that he’s still a citizen,” Foster Bates, a black Maine inmate, told The New Yorker. “We have to have something to go home for.”

The argument for restricting the voting rights of incarcerated citizens may seem straightforward. “If you’re not willing to follow the law yourself, then you shouldn’t have a right in making the law for everyone else,” says Roger Clegg of the Center for Equal Opportunity, a conservative think tank in Virginia.

The U.S. Supreme Court appears to agree. In 1974, the court ruled in Richardson v. Ramirezthat felon disenfranchisement was constitutional under Section Two of the 14th Amendment.

Activists on the left have built a movement for voting-rights restoration, focusing on the reënfranchisement of people who have already served their time.

The legislatures of Kentucky, New Jersey, and Louisiana have restored voting rights for large numbers of formerly incarcerated people. These efforts seldom aim for universal suffrage. When advocates in Florida proposed a voting-rights-restoration amendment to the state constitution, in 2018, they excluded people on probation or parole and those who were convicted of murder or sexual offenses.

Since the Florida amendment passed, opponents in the state legislature slapped on an added requirement that only returned citizens who have paid the full amount of fines and fees incurred during their incarceration would be entitled to vote—prompting another fight currently heating up in the state court system.

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