Felony disenfranchisement

In an Ancient Rome and Greece, an offender guilty of a serious offense against society was subject to the forfeiture of property and civil death—the loss of all rights and privileges. In the early common law, certain categories of offenders were subject to banishment and the loss of all property and civil rights. The practice of the “civil death” of offenders in England inspired laws in U.S. states disenfranchising felons from the right to vote. These laws became widespread following the U.S. Civil War when southern governmental officials relied on felony disenfranchisement laws to restrict African Americans’ access to the ballot box. Scholars have found that the larger the African American population, the more likely a state is to adopt a felony disenfranchisement law (Lai and Lee 2016; Sentencing Project 2016, 2018).

In the 2016 and 2018 elections, roughly 6 million individuals were prohibited from voting in various states as a result of states’ felony disenfranchisement laws, which declare convicted felons ineligible to vote. The number of individuals disenfranchised has grown at a rapid rate as a result of drug laws and the enhancement of crimes that formerly were misdemeanors to felonies. In 1976, 1.17 million individuals were disenfranchised, which grew to 3.34 million in 1996, to 5.85 million in 2010, and to 6 million in 2016 and in 2018.

In every state with the exception of Maine and Vermont, incarcerated felons are prohibited from voting. Sixteen states and the District of Columbia automatically restore the right of felons to vote upon their release from prison. Twenty-one states extend this prison disenfranchisement to felony parolees and probationers until the completion of their supervision. There are twelve states that disenfranchise some or all felons following the felons’ release from prisons.

States with felon disenfranchisement provide for an array of requirements for reinstating the voting rights of convicted felons although certain categories of offenders are permanently disenfranchised in various states. The Virginia Constitution prohibits felons from voting although former governor Terry McAuliffe used his clemency powers to restore voting rights on an individual basis. Other states for the most part require a pardon from the governor to restore the right to vote or require a court order, but in one instance the right to vote is restored following a two-year waiting period. A new Louisiana law restores voting rights after five years on parole or probation. The procedural requirements of these laws often effectively bar a felon from voting. Consider the Mississippi statute that specifies that an individual convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement, or bigamy is no longer considered a qualified elector. Individuals convicted of one or more of these offenses require a pardon from the governor or a two-thirds vote of both houses of the state legislature to restore their right to vote.

The twelve states that disenfranchise individuals convicted of a felony account for roughly 50 percent of the felons who are disenfranchised nationally. Twenty-six percent of individuals who are disenfranchised are parolees and probationers, and roughly 22 percent of individuals who are disenfranchised are felons presently incarcerated. In six of the states that disenfranchise former felons following their release, more than 7 percent of the adult population is disenfranchised.

One in thirteen African Americans of voting age are prohibited from voting under felony disenfranchisement laws. In aggregate, 2.2 million African American citizens are banned from voting, although as a result of reform efforts between 1999 and 2016, roughly 840,000 African Americans and citizens of other races have had their voting rights restored.

Felony disenfranchisement is based on the argument that individuals who break the law should not participate by voting for individuals who make the law. In the case of homicide, victim advocates claim that felons should not exercise a right that no longer is available to their victims. Individuals who oppose the disenfranchisement of felons argue that these laws prevent former offenders from being integrated into society and rehabilitated. The constitutionality of felony disenfranchisement remains a point of contention (Richardson v. Ramirez, 418 U.S. 24 [1974]).

According to the Sentencing Project, disenfranchisement policies in states probably affected the results of seven Senate races and the 2000 presidential election. Public opinion polls indicate that eight out of ten Americans support voting rights for individuals who have completed their prison sentences and two-thirds support voting rights for individuals on probation and parole (Sentencing Project 2018).

In Florida in 1980, 2.6 percent of “eligible” voters were prevented from voting based on the policy of felon disenfranchisement. This figure rose to 10.6 percent of the electorate in 2016 (Tsai 2019: 206–213). In November 2018, the Florida electorate overwhelmingly voted by 65 to 35 percent to support a citizen-initiated constitutional amendment that automatically restored voting rights to individuals convicted of a felony following the completion of their sentences, including parole and probation. Individuals convicted of murder or felony sexual offenses are required to apply to the governor for restoration of their voting rights. In the past, restoration of the right to vote for felons required action by the governor. The amendment was thought to restore the right to vote to as many as 1.5 million felons.

The Republican-dominated Florida House of Representatives significantly restricted the impact of the amendment by requiring individuals to fully pay back fines, court costs, and restitution orders before the restoration of their right to vote. These fees in some instances involve tens of thousands of dollars and may bar as many as 80 percent of the individuals covered by the Florida referendum from voting (Mazzei 2019a). The Eleventh Circuit Court of Appeals in the first court test of the Florida law overturned the legislation and held that there is no legitimate state interest in the continued disenfranchisement of felons who are “genuinely unable to pay and who have made a good-faith effort” to pay. The law allows felons with “money in the bank” to vote “but the felon who can’t will continue to be barred” (“Florida Voting Barrier” 2020).

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