Members Only | October 17, 2021 | Reading Time: 5 minutes

Preventing felons from voting is just how it is, right? Wrong. There’s a history. There were choices. And we can change it.

With our democracy under siege, we should use all legal arguments to restore voting rights to as many people as possible.

Image courtesy of ABC.
Image courtesy of ABC.

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This week Democrats are making a renewed push for passing voting rights legislation. The bill includes reforms to limit partisan gerrymandering and address campaign finance reform. While it is a needed protection for voting rights after the Voting Rights Act was gutted in 2013, there are a number of important issues it doesn’t touch that we should consider at the state level before the 2022 election. 

While criminal justice reform remains an important political issue, felon enfranchisement and incarcerated voting don’t get as much attention. Some states, however, are beginning to address the voting rights of formerly incarcerated people at least. After years of individually restoring voting rights, Virginia Governor Ralph Northam restored voting rights for all formerly incarcerated individuals not currently in jail in March 2021. In 2018, Florida, which had one of the worst felon disenfranchisement laws in the country, passed a ballot measure with 65 percent support to automatically restore the voting rights of 1.4 million formerly incarcerated people. Unfortunately, Republican legislators are still trying to use court fines to prevent them from voting but many were able to vote for the first time in years in 2020. Unfortunately, there has been almost no effort to support voting rights for people who are currently incarcerated.

Disenfranchising those with a felony record has its roots in “civil death” as a criminal punishment dating back to ancient Athens, Rome, and medieval Europe.

While felony disenfranchisement has long been accepted, the legal justifications are far from conclusive. Disenfranchising those with a felony record has its roots in “civil death” as a criminal punishment dating back to ancient Athens, Rome, and medieval Europe. However, since only elites had civil rights, this punishment was only applied to elites historically. This punishment could result in a complete loss of citizenship rights, which could include the loss of the right to serve in the Roman legion, living outside the protection of law in medieval Europe, the loss of all property and of course suffrage.

The concept of civil death carried over to Britain and then the colonies with British common law. Punishment in this period was often physical with the stocks, public whipping and even branding particularly for lower classes. Civil death remained a punishment only for those who were elite enough to participate in civil society.

The 19th-century rise of the penitentiary changed the societal response to crime. Foucault suggested this was a change from enacting punishment on the body to enacting it on the mind. The purpose of imprisonment was to restrain freedom of movement in order to encourage silent religious contemplation and improve a person to become a better, more productive citizen of a democracy. 

The Constitution left specific suffrage rules up to the states and says nothing about criminal or incarcerated voting rights. Kentucky was the first state in 1792 to establish criminal disenfranchisement by excluding those convicted of “bribery, perjury, forgery, or other high crimes and misdemeanors” from voting. Vermont followed in 1793 and Ohio in 1802. Between 1812 and 1821, Louisiana, Indiana, Mississippi, Connecticut, Alabama, Missouri and New York all passed criminal disenfranchisement laws mostly applying to high crimes or “infamous” crimes. Other states continued to pass laws that disallowed criminals from voting until the Civil War. 

The contemporary form of felon disenfranchisement that applies to many more crimes than “infamous ones” was an attempt to disenfranchise Black voters during Jim Crow. Jim Crow laws criminalized Black people, which increased the number who became felons, and the new felony disenfranchisement laws expanded the crimes that would cause one to lose their right to vote. Alabama passed the first such expanded criminal disenfranchisement law in 1901. The Voting Rights Act of 1965 sought to correct the racially discriminatory voting laws that kept Black people from voting, but did little to address felony disenfranchisement. 

Relevant Constitutional case law on felony disenfranchisement began in 1966 with Otsuka v. Hite. The California Supreme Court ruled that the phrase “infamous crimes” should only disenfranchise those “deemed to constitute a threat to the integrity of the elective process.” If followed, this precedent would actually serve to restore voting rights to many formerly incarcerated people.

Usually the state has to prove a “compelling interest” in order to limit voting rights, but the court has generally found criminal disenfranchisement to be an exception. The Ninth Circuit addressed this specifically in Dillenburg v. Kramer in 1972 by acknowledging that Constitutional justifications on this subject have been vague and courts have been hard pressed to specifically define the state’s interest in disenfranchising those who have been convicted of a crime. While the court agreed that historically, felon disenfranchisement had been ruled constitutional, they also left the door open to the law evolving by writing that “the constitutional concepts of equal protection are not immutably frozen like insects trapped in Devonian amber.”

Allowing incarcerated people to vote would also address a phenomenon called “prison gerrymandering,” in which inmates are counted in the census for population purposes where the prison is located but not allowed to vote.

Unfortunately, courts went in a different direction and two years later the Supreme Court ruled that criminals were exempt from Equal Protection Clause protections in Richardson v. Ramirez. They overturned the lower California court which ruled that felon disenfranchisement violated the Equal Protection Clause of the 14th Amendment. Richardson has become the controlling precedent to justify felon disenfranchisement and it was decided in the post Civil Rights backlash against criminal justice reform that fed mass incarceration.

Whatever the legal justification, disenfranchising currently or formerly incarcerated people serves no governmental interest. The initial reasoning for the penitentiary as a form of punishment was explicitly to turn criminals into good citizens, which suggests the need for incarcerated voting rights to achieve this. Additionally, isolation and a strict focus on punishment tends to increase recidivism rates while education and a connection to the outside world decreases them. 

Allowing incarcerated people to vote would also address a phenomenon called “prison gerrymandering,” in which inmates are counted in the census for population purposes where the prison is located but not allowed to vote. Many states house their prisons in rural, predominantly white, areas while the prisons are disproportionately filled with urban people of color. Therefore, this practice gives outsized voting power to rural white areas by counting people who can’t vote in those areas.

Two states, Maine and Vermont, have unrestricted voting rights for felons and even allow incarcerated people to vote from jail, though there is little effort to encourage these people to vote. Twenty-one states reinstate voting rights immediately upon release and 16 more reinstate voting rights after people have completed their prison term as well as parole or probation. In 11 states people risk losing their votes indefinitely or require a governor’s pardon for their rights to be restored. Since the constitutional justifications are similar for incarcerated disenfranchisement, it’s logical to consider real universal suffrage for all citizens, incarcerated or not, with the consideration of felon enfranchisement. Unlike early forms of “civil death,” criminals don’t lose their citizenship upon conviction, and again, penitentiary justifications include rehabilitation through good citizenship.

Previous legal arguments to justified felon enfranchisement have often relied on the Voting Rights Act to argue that felony disenfranchisement is racially motivated (or at least has a racial impact). Many legal scholars also suggest that criminals shouldn’t be exempt from the state needing a “compelling interest” to disenfranchise them. Another fruitful argument could lie in the number of felonies leading to disenfranchisement being too broad. With our democracy under siege we should use all these legal arguments to restore voting rights to as many people as possible at the state level.

Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.

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