In recent years the idea of voting rights has become so tied to the question of racial districting—with its complex jargon, Rorschach-like maps, and inscrutable case law—that it's easy to forget how morally compelling the struggle for universal suffrage once was. Some might say this actually isn't such a bad development, to the degree that it reflects the absence of any remaining outright barriers to voting in the United States. This is the stuff of textbook pride: Constitutional amendments secured the right to vote for blacks, women, and 18-year-olds. Supreme Court rulings and the Voting Rights Act did away with other restrictive provisions such as literacy tests and property qualifications. We've even made registering and voting easier with the federal motor-voter law. So now everyone who wants to can vote.
Or can they? One group of adult citizens is still legally barred from participating in the electoral process: those four million or more people who have been convicted of a crime, usually a felony. All but four states—Maine, Massachusetts, Utah, and Vermont—disenfranchise incarcerated offenders. (It may soon be all but three states: In August, Massachusetts Acting Governor Paul Cellucci proposed a constitutional amendment banning prisoners in his state from voting.) Thirty-five states disqualify parolees and probationers. And, remarkably, 13 states deny felons the vote for life—even after they have been fully released from correctional supervision. Since voting qualifications are generally set by the states, these laws deprive felons of the right to participate in federal as well as state elections.
Not surprisingly, given their disproportionate representation in the criminal justice system, a disparate share of disenfranchised convicts are African-American and Latino. In fact a report released last January by the Sentencing Project noted the disturbing fact that one in seven black men in America cannot vote because of laws that disenfranchise convicts and ex-cons. Whether the impact of these statutes on minorities is accidental or partly deliberate, it is important to note that there is a history in this country of intentional use of such laws to deprive blacks of the vote. Indeed, it's a history that should tell us something about the distinct injustice of permanently disenfranchising ex-felons, whatever their race.
RACIAL EXCLUSION AND THE BALLOT
Laws denying criminals the vote have origins in Roman and English legal code, under which a felon literally could be banished from the body politic. But during the Reconstruction era in the South, disenfranchisement provisions were often tailored so that their effect would be to exclude mostly, or only, blacks. This selective exclusion was part of a larger assault on black suffrage that was codified by state legislators at constitutional conventions during the decades following the Civil War. Looking for ways to disqualify blacks without running afoul of the newly ratified Fifteenth Amendment, which prohibited blatant exclusion on racial grounds, these legislators adopted a host of ostensibly neutral voting barriers to achieve their desired end. In addition to adopting discriminatory literacy tests and poll taxes, they rewrote their felon disenfranchisement laws to subtly disqualify blacks.
Mississippi led the way in 1890 by replacing a constitutional provision disenfranchising citizens convicted of "any crime" with a narrower section barring only those convicted of certain petty crimes that blacks were supposedly more likely than whites to commit. As the Mississippi Supreme Court explained it in 1896, blacks were more prone to "furtive offenses than to the robust crimes of the whites." Thus, "furtive offenses" such as bribery, perjury, and bigamy were disqualifying offenses, while "robust crimes" like rape and murder were not. Only in 1968 did the latter become disqualifying offenses.
Alabama, Louisiana, South Carolina, and Virginia also disenfranchised criminals selectively in order to keep the electorate white. One Alabama legislator claimed that excluding wife beaters alone would get rid of 60 percent of eligible blacks while removing few whites. The U.S. Supreme Court recognized this shameful history in 1985 when it unanimously struck down an Alabama constitutional provision—enacted in 1901 by lawmakers who openly stated that their goal was to "establish white supremacy"—that had permanently taken the vote from two men who had each written a bad check, a crime of "moral turpitude" according to the state's attorney general.
THE VOTE AS A FUNDAMENTAL RIGHT
While the felon disenfranchisement laws on the books today may not have been motivated by racial animus, their effect remains uncomfortably similar to that of the old southern provisions. As the Sentencing Project reported, a black American is almost eight times more likely than a white American to wind up behind bars—and without the vote. This is the result not only of different levels of crime, but of racial disparities in arrest, conviction, and sentencing rates. For example, a 1995 report by New York's Division of Criminal Justice Services conceded that black defendants were more likely to get prison sentences than white defendants convicted of similar crimes. Since felons in New York are knocked off the voting rolls only if they actually go to prison, at least some black inmates wind up losing the vote in part because of the color of their skin.
In fact, the disparate racial impact of felon disenfranchisement laws may make them susceptible to challenge under the federal Voting Rights Act. In 1994, Yale law professor Brett Dignam and I made this argument on behalf of a group of New York State felons. Although we initially won the right to go forward with the case, a 5-5 federal appeals court split resulted in its being dismissed, though without precedential effect. A similar case is now being litigated in Washington State, which has lifetime disenfranchisement, and major civil rights organizations are considering challenges elsewhere.
But race need not be the only justification for striking down laws that take the vote away from non-incarcerated felons, especially in the states where these bans last a lifetime. Simply put, the penalty is too severe. As Mississippi federal judge Henry Wingate reasoned in a ruling that reinstated the rights of a citizen who had been permanently barred from voting and running for office simply because he passed a bad check:
Disenfranchisement is the harshest civil sanction imposed by a democratic society. When brought beneath its axe, the disenfranchised is severed from the body politic and condemned to the lowest form of citizenship, where voiceless at the ballot box . . . the disinherited must sit idly by while others elect his civic leaders and while others choose the fiscal and governmental policies which will govern him and his family. Such a shadowy form of citizenship must not be imposed lightly.
Disenfranchising ex-felons who have served their time and paid their debt to society is indefensible under even the most punitive theories of criminal justice. Though one may believe that an offender who has broken the social contract should be temporarily deprived of its benefits, lifetime disenfranchisement is inconsistent with that principle, not to mention the idea (strained as it may be) that errants can be rehabilitated and reintegrated into society. Moreover, it's not clear what purpose is served by depriving any felon, whether in prison or not, of a fundamental right. We don't deny prisoners freedom of speech or religion, due process, or the right to be free of cruel and unusual punishment. Rather, we narrow those rights only to the extent that they interfere with legitimate objectives of incarceration. It's not at all clear how allowing felons to vote disrupts imprisonment.
The old nonpunitive justification that disenfranchisement laws protect the "purity of the ballot box" is similarly warped (and has its own racial overtones). Electoral integrity is better protected by laws criminalizing voter fraud, and the Supreme Court has rightly ruled that legislatures cannot fence out a class of voters because of how they might vote. (One possible problem with having imprisoned felons vote arises in local elections, where prison inmates in some rural towns could overwhelm the electorate—but state provisions preventing prisoners from voting locally keep this from happening.)
Mainstream groups such as the American Bar Association and the American Law Institute came out against lifetime disenfranchisement decades ago, back when there were still criminologists who bothered to report that the stigma of exclusion might actually deter rehabilitation and increase the likelihood of recidivism. Today, because of the prevalence of juvenile crime and plea bargaining, waves of young people are losing their right to vote before ever getting a chance to exercise it. An 18-year-old first-time offender who trades a guilty plea for a lenient nonprison sentence (as almost all first-timers do, whether or not they are guilty) may unwittingly sacrifice forever his right to vote.
Now some will claim that it makes little difference whether ex-cons regain the vote because they are unlikely to use it. But whether or not citizens exercise their right to vote, they must retain that most fundamental political right in a society even nominally committed to democratic principles. The default should be inclusion in the electorate, not exclusion. Defenders of lifetime disenfranchisement note that ex-cons may be allowed to petition the governor or legislature for a special pardon to restore voting rights—but how many ex-offenders have the practical wherewithal to do that? Virginia, which has more than a hundred thousand disenfranchised ex-cons, restores rights to only about 75 a year.
In February, Representative John Conyers, the Michigan Democrat, introduced legislation that would restore voting rights in federal elections to non-incarcerated offenders. But this bill, which has little chance of passing anyway, would run into the logistical and legal problem of separating the right to vote in state and federal elections. Truly effective legislative reform must occur at the state level. In particular, the 13 states that continue to disenfranchise felons for life should abandon the practice. Once an offender has served his time, he deserves to have his basic rights automatically restored. Otherwise he is being penalized not for his crime, but for who he is—which is just the way the southern racists would have liked it.