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May 27, 2021

"The Persistence of Penal Disenfranchisement: Suppressing Votes the Old Fashioned Way"

The title of this post is the this new paper authored by Lynn Adelman now available via SSRN. Here is its abstract:

This article discusses penal disenfranchisement, the practice of prohibiting millions of American citizens who have been convicted of crimes from voting.  Most states have laws providing for penal disenfranchisement.  The article argues that barring individuals from voting by reason of a prior criminal conviction is both unjustified and counterproductive. The public interest is best served by integrating individuals who have offended into society, and this interest is not served by denying such individuals the right to vote.

The article explores the history of penal disenfranchisement and the various reasons that have been offered over the years in support of it, both non-punitive and punitive, and explains why none are persuasive.  Further, the piece argues that the practice of penal disenfranchisement is particularly harmful to the interests of the African-American community.  Finally, the article discusses whether there are any possible means of relief for people disenfranchised because of a prior conviction.  With respect to legal remedies, the article concludes that Supreme Court precedent regarding the issue unfortunately is unhelpful.  The article also finds that at the present time, it is unlikely that a great deal of progress is likely to be made through legislation.

May 27, 2021 at 08:07 PM | Permalink


It's a good short article that summaries the basic concerns.

This issue arose in particular as but one problem with the 2000 elections though of course goes much beyond that. The situation has improved in the next two decades. But, we have a ways to go.

Posted by: Joe | May 28, 2021 10:14:41 AM

The disenfranchisement of former felons has long been an issue in my home state of Kentucky. Notably, about 26% of blacks in Kentucky (who make up 8% of the population) and 33% of black men have a disqualifying felony conviction. Under the Kentucky Constitution, the voting rights of former felons can only be restored by the Governor restoring them thru a kind of partial pardon. Historically, Republican Governors have restored voting rights to relatively few people, and Democratic Governors have been far more liberal in restoring voting rights to former felons. A Bill to amend the Kentucky Constitution to change the law has passed the Kentucky House of Representatives by a huge margin for many years (83 to 17, for example), but was bottled up in the Republican-controlled Kentucky Senate for years, particularly by the Senate President and Senator Damon Thayer (R. Georgetown), the Chair of the State and Local Government Committee to whom the Bill was assigned. During one contentious hearing about 5 years ago, Senator Thayer proposed a "senate Substitute" Bill that would postpone the restoration of voting rights for former felons until 5 years after they complete their sentences. Many people know that about 2/3 of former felons get new criminal charges within 3 years of completing their sentences, so Senator Thayer's substitute would have effectively gutted the legislation. There was a sharp exchange between the head of the Ky. NAACP (from Louisville) and Senator Thayer over whether he would also propose that former felons didn't have to pay any taxes while they were waiting 5 years to have their voting rights restored. Ultimately, Kentucky's current Democratic Governor, Andy Beshear, made it the first Executive Order that he signed after being inaugurated to AUTOMATICALLY restore voting rights to former felons upon completion of their sentences, except where the felon was convicted of a handful of crimes, including rape, murder and sexual abuse of a child. Many believe the if the Republicans re-take the Governor's mansion, the new Governor would revoke the Executive Order restoring the voting rights of former felons. Governor Beshear only narrowly defeated the despised former Republican Governor, Matt Bevin, by 5,080 votes. The Kentucky Republican party does not want Matt Bevin to run as their candidate in the next election, because they believe 1) that he would not win, and 2) they have much better candidates to run against Beshear than Mr. Bevin. While one would think that former felons would come out to vote for Beshear, who signed the Executive Order restoring their voting rights, the truth is that there is a problem getting most former felons to register to vote and to turn out to the polls on election day. Many former felons didn't vote even before they got their felony convictions. Apathy is a major issue. There is a grass-roots movement to work to register former felons and turn them out to the polls on election day.

Posted by: Jim Gormley | May 28, 2021 11:03:58 AM

The idea that states can exclude former felons from voting comes from a U.S. Supreme Court decision, Richardson v. Ramirez, 418 U.S. 24 (1974). The holding is that excluding former felons from registering to vote does not violate the 14th amendment's Due Process clause. This was a 6 to 3 decision, with the opinion authored by Justice William Renquist (before he became Chief Justice). The decision is based upon clause 2 of the 14th Amendment, which indicates that those convicted of "rebellion or other crimes" can be excluded. Also, when the 14th Amendment was passed in 1868, more than half of all states had laws restricting the voting rights of former felons. I have long wondered whether a former felon who pushed such a voting rights case back up to the Supreme Court today might get the current Justices to overturn the Richardson precedent, but I fear he or she would fail. This leaves us with trying to get the U.S. Constitution amended, which could easily take 25 years to accomplish. Another approach is setting up a kind of Federal voter registration, so that otherwise disenfranchised former felons could vote in Federal elections, including voting for POTUS, since there is no legal impediment preventing former felons for voting in Federal (as opposed to state) elections. Traditionally, there has been no separate registration by the Feds for people to vote in Federal elections. Rather, the Feds have always piggy-backed on the registration of voters by state Secretaries of State. To set up a separate Federal voter registration in each state would take an act of Congress.

Posted by: Jim Gormley | May 28, 2021 11:30:04 AM

The Supreme Court's decision in Richardson v. Ramirez, 418 U.S. 24 (1974) has been partly superseded by the Supreme Court's UNANIMOUS decision in Hunter v. Underwood, 471 U.S. 222(1985). In Hunter, the Supreme Court invalidated section 182 of the Alabama Constitution (passed in 1901), which had disenfranchised from voting persons convicted of a specific list of felonies and misdemeanors. The Court found that section 182 was enacted for a racially discriminatory purpose (in violation of the Equal Protection clause), in part based upon the fact that blacks were convicted of the list of misdemeanor crimes far more often than whites, and the misdemeanors that mostly whites were convicted of were excluded from the list. So, maybe there would be home to take a new case up to the U.S. Supreme Court.

Posted by: Jim Gormley | May 28, 2021 11:59:07 AM

The 1970s ruling (Douglas dissented on a procedural issue) was referenced and critiqued in the article.

The later opinion was a special case since there racial intent was found. A "neutral" (though in practice it is not) felony disenfranchisement law would be different. There is a way to narrow the earlier ruling but the current Supreme Court is not likely to.

Rep. Cori Bush offered a failed amendment to the voting rights package to deal with voting in prison. Only two states and Puerto Rico allows convicted people to vote in prisons though as the article notes various nations do so allow. The more realistic, if still a long shot, federal law would be to protect those who are out of prison. Such a law can also apply only to federal elections, if members of Congress are concerned with federalism concerns.

Posted by: Joe | May 28, 2021 1:12:58 PM

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