Three years after serving a bid for robbery, Glenn Martin tried to register to vote in his state. In New York, formerly incarcerated people are allowed to vote once they complete parole. A few weeks later, the Bronx Board of Elections sent him a letter telling him he wasn't eligible.
"After getting out and finding a job and working my way up the career ladder, I purchased property, I was paying property taxes, income taxes, child support, all the things everyone else pays," Martin says. "I wanted to be engaged in the process."
It turned out the Bronx Board of Elections was mistaken, and Martin was eventually able to register. At the time, Martin was working as a policy analyst for a legal advocacy group, and he knew the board had made a mistake, so he was able to correct it.
Different states have different requirements for re-enfranchising ex-felons. Maine and Vermont allow their imprisoned populations to vote. Some states restore voting rights at the moment of release, and some do it after parole or probation. Other states do not restore voting rights to those who have committed certain types of crimes or after more than one conviction. Virginia and Kentucky permanently disenfranchise the formerly incarcerated, except in cases of executive clemency.
Congress is currently considering the Democracy Restoration Act, which would restore federal voting rights to formerly incarcerated people upon release. The bill, which is based on recommendations from a 2008 report by the Brennan Center for Justice, would also require states to notify individuals of their right to vote as soon as they have completed their sentences and ensure that people on probation never lose their right to vote. The bill's proponents argue that it would get rid of the confusion surrounding the voting-restoration process. In New York, a third of local election boards required formerly incarcerated people who wanted to register to vote to offer "improper documentation," including, in some cases, documents the state doesn't actually produce. Nearly a third of Ohio's election workers incorrectly believed people with misdemeanor convictions couldn't vote.
Felony disenfranchisement laws also disproportionately affect African Americans, because African Americans form a disproportionately large part of people convicted of crimes. Though only 13 percent of monthly drug users are black, they make up 56 percent of drug convictions. Eight percent of black Americans are disenfranchised because of prior convictions; 13 percent of black men are ineligible to vote, more than seven times the national average.
The disparate impact on black Americans is by design. "Many of these laws were put in place right at the time of reconstruction ... right along with poll taxes and literacy tests," says Erika Wood, director of the Brennan Center's democracy program and author of the 2008 report. "They were intended to prevent African Americans from voting." This isn't just true of the South, Wood explains. During the 1800s, New York went out of its way to disenfranchise black voters.
If the March 16 subcommittee hearing on the Democracy Restoration Act is any indication, bipartisan agreement on this problem may be hard to reach. Hans von Spakovsky, a former assistant attorney general for civil rights during the Bush administration, dismissed the racial impact of felony disenfranchisement in his testimony.
"Criminals lose their right to vote because of their own conscious actions in breaking the law, not because of their race," von Spakovsky said. He added that proving racially discriminatory intent is required to show a violation of the 14th Amendment's equal-protection clause.
"The racial intent and the racial impact are very clear in these laws, but you don't have to prove the racial discriminatory aspects in order to enact [the Democracy Restoration Act]," says Deborah Vagins of the ACLU.
Opponents of the law are also likely to argue that restoring federal voting rights to ex-felons interferes with states' rights by inhibiting their ability to make their own decisions about elections. But the bill would only re-enfranchise the formerly incarcerated in federal elections, leaving state officials to be as draconian as they want to when it comes to local ones.
"It's the same authority that the federal government used to pass things like the Help America Vote Act or the 'Motor-Voter' bill -- it's a federal standard," Vagins says. "I see no federalism problem with this bill."
Still, the policy impact on the states could be significant. A federal law enfranchising the formerly incarcerated upon release would likely push the states to follow the federal government's lead, if only to avoid the cost and confusion of having to discern in which elections individuals are eligible to vote.
That may be what Republicans are afraid of. The fact that black people, who vote overwhelmingly Democratic, are more likely to be incarcerated, means that re-enfranchising ex-felons is more likely to help Democrats than Republicans. That adds to the already considerable difficulty of getting a voting-rights bill through Congress in an election year, when any attempt to tinker with the laws will be seen as an attempt to rig the system in one side's favor.
Martin says re-enfranchising ex-felons goes beyond politics; it's about reintegrating people back into society. "One of the major factors in terms of reducing recidivism and increasing a person's chance of success is reconnecting them to their community post-release, and what better way to connect someone to their community than voting?" he says.
Conservative critics like von Spakovsky, however, argue that ex-felons shouldn't be reconnected. At the March 15 hearing, he argued that the current penal voting laws are "overwhelmingly supported by the public, a clear sign that they do not want their ability to influence the decisions made by elected officials on controlling crime diluted by convicted felons or individuals on parole."
But Martin, nine years from release and now working as vice president of development and public affairs at the Fortune Society, says disenfranchising the formerly incarcerated simply tells them society doesn't want them back.
"It really sends a message to people coming home. On the one hand we talk about reintegrating, staying at liberty, not committing crimes, and so on," Martin says. "On the other hand we take away the vote, which just further alienates people and marginalizes them."
