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November 20, 2014

"The Racist Origins of Felon Disenfranchisement"

The title of this post is the headline of this recent New York Times commentary by Brent Staples. Here are excerpts:

The state laws that barred nearly six million people with felony convictions from voting in the midterm elections this month date from the late 19th and early 20th centuries, when Southern lawmakers were working feverishly to neutralize the black electorate.  Poll taxes, literacy tests, grandfather clauses and cross burnings were effective weapons in this campaign.  But statutes that allowed correctional systems to arbitrarily and permanently strip large numbers of people of the right to vote were a particularly potent tool in the campaign to undercut African-American political power.

This racially freighted system has normalized disenfranchisement in the United States — at a time when our peers in the democratic world rightly see it as an aberration. It has also stripped one in every 13 black persons of the right to vote — a rate four times that of nonblacks nationally.  At the same time, it has allowed disenfranchisement to move beyond that black population — which makes up 38 percent of those denied the vote — into the body politic as a whole.  One lesson here is that punishments designed for one pariah group can be easily expanded to include others as well....

Maine residents vigorously debated the issue last year, when the Legislature took up — and declined to pass — a bill that would have stripped the vote from some inmates, whose crimes included murder and other major felonies.  Families of murder victims argued that the killers had denied their loved ones the right to vote and therefore should suffer the same fate.

Those who opposed the bill made several arguments:  That the franchise is enshrined in the state Constitution and too important to withdraw on a whim;  that voting rights keep inmates connected to civic life and make it easier for them to rejoin society;  that the notion of restricting rights for people in prison was inconsistent with the values of the state.

A former United States marshal and police chief argued that revoking inmate voting rights would strip imprisoned people of dignity and make rehabilitation that much more difficult. The editorial page of The Bangor Daily News argued against revocation on the grounds that, “Removing the right of some inmates to exercise their legal responsibility as voters in a civilized society would undermine that civilized society.”

The fact that most states view people who have served time in prison as beyond the protection of the bedrock, democratic principle of the right to vote shows how terribly short this country has fallen from achieving its ideals.

November 20, 2014 at 08:42 AM | Permalink


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I'm surprised this piece isn't granted at least an endorsement as an "effective" commentary...

Posted by: SH | Nov 20, 2014 10:24:42 AM

Hello Legislators, Prosecutors, Judges and Lawyers!

Stop making everything besides parking tickets a FELONY.

i.e., don't demonstrate proper respect to a police officer (only their word required), you have a felony for resisting arrest.

Posted by: albeed | Nov 20, 2014 11:16:51 AM

This editorial only scratches the surface of this subject, which is so large and comprehensive that it has its own Wikipedia page. About 6% of the adult population of the United States (about 18 million people) have felony convictions, and about 1/3 of those (6 million) live in states where they cannot register to vote. Notably, there is no provision in the U.S. Constitution or in Federal law that prevents felons from voting in Presidential and Congressional elections. The exclusion of former felons from voting in Federal elections arises out of the historical anachronism that there is no separate Federal voter registration from registration thru the various states' electoral registration processes. In effect, the Feds have always piggy-backed onto state voter registration laws.

The idea that states can refuse to permit those with felony convictions to vote remains viable in the modern world only because of the U.S. Supreme Court's 5-4 decision in "Richardson v. Ramirez", 418 U.S. 24 (1974). Since the "Richardson" case was decided in 1974, at least 10 states that previously refused to restore the voting rights of former felons have changed their laws and now automatically restore voting rights after the felon has completed his/her sentence, including probation and parole. Thus, one must wonder whether the Supreme court would decide this issue the same way today, based upon the Constitutional idea of evolving societal standards. As of 2014, only three states continue to refuse to automatically restore voting rights to former felons: Kentucky, Iowa and Florida. In some states, voting rights are only restored to non-violent former felons.

In 2000, when the outcome of the Presidential election was determined by 525+ votes in Florida, more than 850,000 Florida felons (out of a population of more than 23 million people) were prevented from voting. There is little doubt that Florida's felony disenfranchisement changed the outcome of a Presidential election, and all that followed, including the invasions of Iraq and Afghanistan, where thousands of Americans have died, hundreds of thousands have been wounded and injured and $2 trillion has been expended.

In my home state, Kentucky, there is no automatic restoration of voting rights. Former felons in Kentucky cannot vote unless they obtain a kind of partial pardon from the Governor, called a "Restoration of Civil Rights". As a result, more than 20% of the black men in Kentucky cannot vote. The current Democratic Governor, Steve Beshear, grants about 95% of the applications (which typically also require assent of the prosecutor and that all criminal fines and restitution have been paid). The last Republican Governor, Ernie Fletcher, however, granted only about 45% of the applications. For the last 8 years, Rep. Jessee Crenshaw (D. Lex.)(who is black) has sponsored legislation that would facilitate an Amendment to the Kentucky Constitution, to facilitate the automatic restoration of voting rights to former felons. Each term, the resolution has received overwhelming support in the Democratically-controlled Kentucky House of Representatives, with votes of about 80 to 15. But then the Bill has hit a stone wall in the Republican-controlled Kentucky Senate, where Senate President David Williams would assign the Bill to a Committee chaired by Senator Damon Thayer (R. Georgetown) (a/k/a, "Little Jesus"), who would keep it bottled up in Committee, never permitting hearings or a committee vote (much less a vote of the entire Senate, where they were aware there have always been enough votes to pass it). Two years ago, however, Senator Williams left the Senate, to accept an appointment by the Governor to become a Circuit Court Judge at $124,000 per year (which will dramatically increase his state pension when he retires). Williams was replaced as Senate President by Robert Stivers (R. Manchester), who is slightly more open-minded on the issue than Senator Williams had been. In February 2014, Senator Thayer (who is no longer the committee's chairman) introduced a proposed "Senate Substitute" Bill that would have effectively have gutted the House version. Senator Thayer says that he is "philisophically opposed" to automatic restoration of voting rights to former felons. Kentucky's Republicans seem to have made a political calculation that if voting rights are automatically restored, then the new voters will disproportionately register Democratic and vote for Democratic candidates. To the extent that automatic restoration of voting rights would hurt the Republican party and its candidates, the Senate Republicans simply will not permit the law to be changed. Senator Thayer's Bill would have excluded certain types of violent and sex crimes felons from restoration of rights altogether, and would have imposed a 5-year waiting period after the other felons completed their sentences, including probation an parole, before voting rights would have been restored. During those 5 years, the former felon could not receive any new criminal convictions, not even misdemeanors. The head of the Kentucky NAACP pointedly asked Senator Thayer at the hearing whether former felons would also be exempted from paying taxes during the 5 years they were waiting to have their voting rights restored. After all, "taxation without representation" is a fundamental reason that American colonists fought the Revolutionary War against the English in 1775. Because the recidivism rate for former felons is more than 50% during the 5 years, most felons would never have had their voting rights restored under Senator Thayer's version of the Bill. The Senate approved that version of the Bill, but no Conference Committee ever met to try to work out differences between the House and Senate versions of the Bills, so automatic restoration died at the end of the 2014 legislative session. Rep. Crenshaw (D. Lex.) has now retired and did not stand for re-election in November, so it is not clear who, if anyone, will pick up this mission in the 2015 legislature.

In Kentucky, one might be more likely to change the law in this area by taking a newly-filed case up to the U.S. Supreme Court than by trying to get the state legislature to change the existing felony voter disenfranchisement law. Surely the time has come for the Supreme Court to recognize that society's standards for equal protection of voters have changed since 1974.

Posted by: Jim Gormley | Nov 20, 2014 1:41:53 PM

I have to agree. Absent a conviction for some type of major capital crime against the country itself like treason. The ideal that anyone can strip a CITIZEN of a democratic country of their right to vote is simply treason in it's own rite.

Posted by: rodsmith | Nov 20, 2014 5:15:38 PM

I appreciate the long comment but a small correction: "Richardson v. Ramirez" was a 6-3 ruling and only two of the dissenters did so on the merits though if pressed, the third very well might have (being Justice Douglas). And, I think the main dissent is correct.

In general, a vague phrase in a never used enforcement mechanism should not be used to justify the practice. The actual text holds that a state's congressional delegation can be decreased if voting rights are diminished with certain exceptions including "participation in rebellion, or other crime." This is a step beyond striking down a particular state electoral practice as unconstitutional or not allowing it to be in effect. And, in Hunter v. Underwood, other grounds (racist intent) was left open as a reason to strike down even this sort of regulation.

The fact the disenfranchisement is "racially freighted" is important and is shown by a reasoned analysis of history and practice. It also shows there are 15A implications here. It also can be seen as a cruel and unusual punishment to deny fundamental rights once one's regular sentence is complete. This blog notes that other fundamental rights are blithely threatened here too -- that is gun rights even for the likes of Martha Stewart. And, minorities aren't the only one pulled into the vortex here. Criminal justice is inequitable in other ways and voting rights are fundamental for all.

A few here ridiculed the importance of voting rights, but the idea that denial provides a stigma that burdens and even discourages full re-entry to useful society is clear. This stigma should be deemed as obsolete and at the very least voting rights should be re-established for felons once their sentence is complete. This should also not be some sort of game where "completion" technically only comes years later.

Posted by: Joe | Nov 24, 2014 11:07:11 AM

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