There’s no shortage of scandal produced by the U.S. voting system. Prohibitively long lines at Arizona primary polling locations, a Republican congressman admitting that Voter ID laws will help their candidates win elections, and Texas defying federal court rulings to keep discriminatory voter ID laws in place are just some of the most recent stories to grace the front pages.
Laws that disenfranchise those convicted of felonies, including after they have been released from prison, present a much quieter scandal. A scandal that deserves significantly more attention.
Current disfranchisement laws have varying levels of severity. In 14 states and Washington D.C., the right to vote is restricted only during the term of the prison sentence. In two states, Maine and Vermont, convicted felons at no point lose their voting rights and can vote via absentee ballot while incarcerated. However, in 11 states it is possible that those convicted of felonies may never be re-enfranchised, and in many others the right vote is not reinstituted until parole is complete.
To some, preventing felons from voting may make intuitive sense. The argument goes: These are people who lived outside the law, after all, so they are people that no longer deserve to be able to make political decisions. Clearly they lack judgment, or are evil. Or, perhaps, they would only be self-serving, voting for people who would loosen crime laws.
However, none of these arguments makes sense.
For one thing, half the country already thinks the other half lacks judgment or is malicious, and to disenfranchise groups based on their members’ potential “irrationality” could cut out pretty much the entire voting population. Second, nearly everyone makes self-serving political decisions, plain and simple.
The idea that people broke the law and therefore “deserve to lose the right to vote” is just as unacceptable a notion as the previous arguments. While it may be “normal” to disenfranchise those convicted of felonies for the duration of the prison sentence, it is unjustifiable to continue that punishment after the prison term has ended. While property rights and speech rights, for example, are limited for prisoners, these rights are reinstituted upon release. Long-term or lifetime disfranchisement is a disproportional punishment not consistent with the treatment of any other right.
An even more powerful critique of disenfranchisement as punishment is one that examines the relationship between voting and citizenship. While voting has certainly not always been a right of citizenship—the Supreme Court, upholding the disenfranchisement of women, ruled in Minor v. Happersett (1895) that voting was not a constitutional right—the notion of voting as a right is now ubiquitous. Voting rights have expanded to be nearly universal, and the language of voting as a right became common with the passage of the Voting Rights Act of 1965. By 1993, the National Voter Registration Act declared, “The right of citizens of the United States to vote is a fundamental right.”
Assuming, then, that voting is a right of citizenship, disenfranchisement strikes at the heart of citizenship. Further, being denied the right to vote is particularly dangerous, for if you lose the ability to vote then you lose the ability to protect all other rights. This type of punishment is peculiarly ideological and fundamental.
Placing these arguments in historical context makes the case against the disfranchisement even more compelling.
Limited research has been done about the intent behind the implementation of disenfranchisement laws in the U.S., but some evidence suggests that these laws were passed with racist intent. A 2003 study concluded, “Our key finding can be summarized concisely and forcefully: the racial composition of state prisons is firmly associated with the adoption of state felon disenfranchisement laws.”
History presents documented instances when disenfranchisement laws were passed seemingly or explicitly with racist intent. For example, the 1901 Alabama constitutional convention expanded the “crimes” that could result in disenfranchisement to those of “moral turpitude.” In the opening address, the president of the convention justified “manipulation of the ballot” as a means of reducing “the menace of negro domination.”
However, as difficult as it may be to prove modern discriminatory intent, there is certainly a racially discriminatory effect, which was made illegal by the 1982 amendment to the Voting Rights Act of 1965.By 2010, on a national level, the felony disenfranchisement rate was 2.4 percent among all Americans of voting age, but 7.7 percent among voting-age African Americans. In some states with even stricter laws, this dichotomy is even more striking. Florida had disenfranchised 10.42 percent of the total voting age population, a figure certainly elevated by the staggering 23.3 percent of the African-American voting-age population that was disenfranchised.
Felony disenfranchisement laws are standing in the way of the United States fully embracing universal voting rights. These laws serve no justifiable function, but instead make second-class citizens out of people who have paid their debts to society. The only way to avoid the discriminatory pitfalls demonstrated time and again over the past 250 years is to strive toward universal voting, one step of which, going forward, is re-enfranchising those across the nation who have finished serving their felony prison sentences.
Zalph is a member of the class of 2016.