Against Felon Disenfranchisement: Historicizing Racist Legacies and Constitutional Issues in U.S. Law
By Maggie Thunselle
Abstract
In several U.S. states a felony conviction can result in an individual’s permanent loss of voting rights. Felon disenfranchisement policies have historically been protected by Supreme Court precedent, despite the fact that racial disparities within the criminal justice system result in the disproportionate disenfranchisement of people of color and Black people in particular. Contextualized by the history of white supremacy in American law and society, this paper analyzes the racist legacy of felon disenfranchisement law, including its role in Black voter suppression. Conclusions support the federal abolishment of felon disenfranchisement and suggest arguments against its constitutionality as asserted in Richardson v. Ramirez.
Keywords
felon disenfranchisement, institutional racism, criminal justice system, Richardson v. Ramirez
Introduction
In March 2019, the U.S. House of Representatives passed the historic For the People Act, a sweeping reform of election policy which contained, among other voting protections and expansions, the restoration of federal voting rights for criminal offenders who have been released from incarceration (Sonmez, 2019). This section of the bill, known as the Democracy Restoration Act, addresses a longstanding debate in United States policy: whether to reform felon disenfranchisement laws that have been historically maintained under state jurisdiction (Democracy Restoration Act, 2019). Ever since Richardson v. Ramirez (1974), in which the Supreme Court construed the Fourteenth Amendment as sanctioning the states’ right to disenfranchise criminals, nearly all U.S. states have felon disenfranchisement laws which restrict, to differing degrees, a felon’s right to vote (House Passes, 2019). In 11 U.S. states, including Iowa, Kentucky, and Alabama, a felony conviction can result in permanent disenfranchisement, or require a governor’s pardon to restore voting rights (Felon voting rights, 2018). Maine and Vermont are the only two states that do not bar felons from voting at all; convicted felons are eligible to vote even throughout their incarceration (Felon voting rights, 2018). Most states fall somewhere in between these two examples: in some states, an individual’s voting rights are automatically restored upon their release from incarceration; in others, felons remain ineligible to vote until total completion of their sentence, including parole and probation, and they are required to pay any unpaid fines before re-enfranchisement (Felon voting rights, 2018).
Against some or all variations of such laws, Democrat-aligned advocates of re-enfranchisement measures, such as non-profits like the Sentencing Project, argue that felon disenfranchisement is inherently undemocratic and racially discriminatory; current laws make over 6 million people in the U.S. ineligible to vote, disproportionately disenfranchise Americans of color generally and Black Americans in particular, and act as a form of voter suppression which affects the outcomes of political elections in favor of Republican candidates (Chung, 2018). In opposition to this view, many Republican-aligned politicians, thinktanks, and organizations stand in favor of maintaining strict criminal disenfranchisement laws, claiming that they are a proper punishment for crime, apply equitably and fairly regardless of race, and should remain, as allocated by the Supreme Court precedent, a state right unimpeded by federal powers.
In an article for the Heritage Foundation, a conservative thinktank, Hans von Spakovsky and Roger Clegg (2015) argued that restriction of voting rights amounts to the criminal offender “[paying] his debt to society” for his wrongdoing. They cited the explicit exclusion of those convicted of a crime from voting rights within Section 2 of the Fourteenth Amendment as the constitutional basis for felon disenfranchisement, as well as evidence for a lack of racial discrimination within felon disenfranchisement laws. Spakovsky and Clegg (2015) suggest that because the law does not explicitly deny voting rights on the basis of race, but instead on the basis of criminal conviction, it cannot be racially biased. They are right in arguing that these laws lack de jure racism, meaning they do not openly and unambiguously discriminate on the basis of race. However, while contemporary laws and policies no longer explicitly claim the purpose of racial discrimination, many laws continue to impact people of color more severely than they do white people—a de facto racism which creates racist results in effect, regardless of the framing of the policy.
However, while contemporary laws and policies no longer explicitly claim the purpose of racial discrimination, many laws continue to impact people of color more severely than they do white people—a de facto racism which creates racist results in effect, regardless of the framing of the policy.
The criminal justice system, carceral system, and felon disenfranchisement laws disproportionately affect all people of color; however, this paper will specifically be discussing felon disenfranchisement as it affects Black Americans and relates to historical and contemporary institutionalized anti-Blackness. Arguing against felon disenfranchisement as a form of criminal punishment and in support of more democratic reforms to electoral policy, this essay historizes the issue of felon disenfranchisement within the legacy of U.S. white supremacy, including its role in Black voter suppression, its relationship to the disproportionate rates of Black American incarceration and criminalization, and the controversy over the constitutionality of these laws as a whole.
Historical Context: Intersections of White Supremacy and the Criminal Justice System
Following the historical analysis of political theorists, white supremacy—as a sociopolitical system of “structural white domination”—must be understood as a key architecture within the United States polity and its associated criminal justice institutions since their inception (Mills, 2015). As articulated by political theorist C.W. Mills (2015), the U.S. Constitution’s exclusive enshrinement of equality, freedom, and natural rights for white men cannot be misconstrued as an accident, “anomaly,” or “inconsistency.” Instead, these principles must be understood as necessary to the construction of liberal personhood, thought, and values: white men become legal “persons” with the associated equality and freedom through the construction of white women and people of color as “sub-persons.” While de jure forms of racism, such as explicitly prejudiced beliefs like biological theories of racial inferiority or the system of chattel slavery, have been either eliminated or become less popular over time, structures of white supremacy continue to be “perpetuated” by increasingly de facto “mechanisms” and institutions (Mills, 2015). Of particular interest to the study of race and felon disenfranchisement, the United States prison and criminal justice systems reveal clear historical ties to racism, continuing to systemically target and incarcerate people of color and especially Black Americans.
In 1865, following the Civil War, chattel slavery was legally abolished with one key exception written into the text of the Thirteenth Amendment: those who were convicted of a crime could still be forced into enslavement or involuntary servitude in the form of prison labor (Browne, 2007). Prior to 1865, the United States did not have a significant prison system, but by the end of the 19th century, an “extensive prison system” had been developed, primarily in the South, as a “mechanism to re-enslave Black workers” in the “interest of maintaining the racial and economic relationship of [enslavement]” (Browne, 2007). After the Civil War, a series of laws, the Black Codes, were introduced in order to target Black people, perpetuate racist stereotypes of criminality, and effectively criminalize Black life (Pollard, 2012). These laws were arbitrary and virtually impossible to avoid, including laws that made it illegal for Black men to walk beside a railroad or speak loudly in front of white women (Pollard, 2012). Violators of these targeted and subjective laws were, often without legal defense or a fair trial, forced back into enslaved labor in the state prisons or, under the system of convict leasing, leased to white plantation owners and forced back into the working conditions of enslavement (Delaney, 2018).
During the post-Civil War Reconstruction Era, felon disenfranchisement laws saw an increase in popularity throughout the United States. “Between 1865 and 1900, 19 states adopted or amended laws restricting the voting rights of criminal offenders,” and throughout the early 20th century, more states followed in introducing disenfranchisement laws (Manza, 2006). As the Black Codes were introduced and felon disenfranchisement laws increased, the rates of the incarceration of Black people increased as well (Manza, 2006).
Even past the civil rights era and the end of segregation, countless policies, laws, and practices have contributed to the incarceration of people of color. This culminated in the Era of Mass Incarceration, as huge spikes in prison population occurred during the second half of the 20th century. One of the most prominent contributors to mass incarceration was the War on Drugs, an ongoing campaign started in 1971 by the Nixon administration, which used “thinly veiled racial rhetoric” to perpetuate the racist ideologies that contribute to the disproportionate incarceration rates of Black Americans (The History of Mass Incarceration, 2018). The War on Drugs began a trend that would only continue into the 21st century; the prison population saw nearly a 600 percent increase between 1974 and 2014 (The History of Mass Incarceration, 2018). Following President Nixon’s introduction of the campaign, the prison population nearly doubled in the eight-year long Reagan administration, increasing from 329,000 to 627,000 (How the War on Drugs, 2016). For drug offenses, the number of people incarcerated has increased “from 40,900 in 1980 to 452,964 in 2017” (The Sentencing Project).
Since 2000, Black Americans are five times more likely to be incarcerated than white people (NAACP). Although white people are “more likely than black people to sell drugs” and “[equally] as likely to consume them,” Black people are “3.6 times more likely . . . to be arrested for selling drugs and 2.5 times more for drug possession” (How the War on Drugs, 2016). As Michelle Alexander (2012) explained in her book The New Jim Crow:
White drug offenders are rarely arrested, and when they are, they are treated more favorably at every stage of the criminal justice process, including plea bargaining and sentencing. [White people] are consistently more likely to avoid prison and felony charges, even when they are repeat offenders. Black offenders, by contract, are routinely labeled felons and released into permanent racial undercaste. (p. 189)
The historical and contemporary racist ideologies embedded in the U.S. prison system and other institutions lead to a higher likelihood that a Black person will be arrested, indicted, and incarcerated than a white person (Delaney, 2018). Considering the historical and ongoing targeting of Black people by the United States criminal justice system, felon disenfranchisement is, at least by de facto means, racially discriminatory and works to continue silencing Black voices and excluding them from democratic processes.
Considering the historical and ongoing targeting of Black people by the United States criminal justice system, felon disenfranchisement is, at least by de facto means, racially discriminatory and works to continue silencing Black voices and excluding them from democratic processes.
Felon Disenfranchisement as Black Voter Suppression
Although the version of felon disenfranchisement that exists in the U.S. today is a product of American culture and politics, disenfranchisement as a concept is not a uniquely American idea. Early notions of disenfranchisement date back to the Greek and Roman civilizations. Historically, the practice has been referred to as a “civil death,” and was considered one of the harshest punishments to be doled out by a democratic society because it deprived the subject of any agency within the political system (Thedford, 2018). Disenfranchisement as a criminal punishment was adopted in the U.S. in the mid-18th century, a time when Black people were not permitted the right to vote because they were legally enslaved (Thedford, 2018). The fact that disenfranchisement laws were first adopted before Black Americans could vote is sometimes utilized to argue that these laws cannot be understood as discriminatory, but this line of thinking ignores later developments in the laws and their use. When the passage of the Thirteenth and Fifteenth Amendments in the 1860s made it legal for Black men to vote, many former Confederate states revised their criminal disenfranchisement provisions with the express objective of limiting Black people’s ability to vote (Thedford, 2018). Crimes that were common among Black communities because of low socio-economic standing or subsequent displacement after emancipation, such as vagrancy, petty larceny, and bigamy, became offenses that led to disenfranchisement (Thedford, 2018).
Interestingly, many early court cases concluded that criminal disenfranchisement provisions had been often manipulated with the specific purpose of disenfranchising Black Americans. In 1896, the Mississippi Supreme Court found that the disenfranchisement provisions established in an 1890 constitutional convention discriminated against offenses more common among Black people, even as those convicted of crimes such as murder were not disenfranchised by the same laws (Chin, 2004). Similarly, in the 1985 case Hunter v. Underwood, an Alabama court concluded that the Alabama Constitutional Convention of 1901 was part of a movement that aimed to disenfranchise those found guilty of offenses primarily seen in Black American communities (Chin, 2004).
Overall, post-Reconstruction marks the period when criminal disenfranchisement shifted to become one of many tools used by white supremacists to maintain political power through the suppression of Black voters. More commonly discussed measures of Black voter suppression from this time include literacy tests, poll taxes, and the grandfather clause. While literacy tests and poll taxes seem like they could have impacted some white Americans in addition to Black Americans, the grandfather clause stipulated that those who had enjoyed the right to vote prior to the 1860s and their descendants were exempt from the educational and tax requirements, thus protecting the rights of poor or uneducated white people while excluding Black Americans descended from enslaved people (Britannica, 2020).
While the more explicitly racist voter suppression laws like the grandfather clause are no longer legal, other forms of voter suppression that continue to disproportionately impact people of color, such as felon disenfranchisement, remain. While these policies may not have explicitly stated that their purpose is to disenfranchise Black Americans, that has historically been and today is still their effect—a fact which is not a coincidence. Voter suppression targeted at Black Americans is rooted in the competition between political parties in addition to white supremacy. Since the 1960s, the Republican party has been courting white southern, rural, and suburban voters as the core of their base while Democrats have made policy choices that appeal more to Black Americans and Americans of color in general. Today, race is a strong indicator of political party affiliation: according to the Pew Research Center’s data on the 2018 midterm elections, 90% of Black Americans vote Democratic (Tyson, 2018). Therefore, there is a distinct conflict of interest for Republican politicians: an increase in Black voters would likely result in a decrease in political power for the Republican Party (Chin, 2004).
Legal scholar Gabriel Chin (2004) put it best when he stated that in the “full contact sport of American politics, both parties will seek any advantage they can.” Political parties, including both the Democrat and Republican, have a primary goal of gaining and maintaining political power, and they will use whatever tools necessary to do so, including undemocratic forms of voter suppression like gerrymandering. Black voters significantly favor the Democratic Party; therefore, Republican Party leaders and Republican politicians are highly incentivized to limit Black voter turnout to preserve political power. In 2018, the Supreme Court struck down the primary formula within the Voting Rights Act (VRA), a key civil rights era legislation, that required states to get approval from the federal government before making changes to their voting laws (Adelman, 2018). Since the deconstruction of the VRA, Republican-dominated state legislatures, such as those of North Carolina, Florida, Georgia, Mississippi, Texas, Arkansas, and Alabama, have passed laws with new voter restrictions that most effect poor people and people of color, including requiring strict photo-IDs, invalidating provisional ballots cast at the wrong polling station, and decreasing the early-voting period (Adelman, 2018). In this way, the preservation of felon disenfranchisement becomes one of many strategies for preserving the political power of the party that has historically benefitted from the suppression of political agency within Black communities. Indeed, all forms of felon disenfranchisement should be illegal because the existence of such laws incentivizes parties to criminalize groups who vote for their political opposition.
Criminalization, Punishment, and Morality
While felon disenfranchisement policies act overtly in the interest of the Republican party, Republican politicians and interest groups often depend on specific moral arguments regarding punishment to defend their position. A common argument for supporting felon disenfranchisement claims that the loss of the voting rights is an acceptable and reasonable punishment for criminal acts. This is not a novel argument; as previously discussed, criminal disenfranchisement was utilized for a similar reason in Greek and Roman societies. As noted by Chin (2004), many people find it difficult to argue against denying franchise to, in particular, convicted murders, rapists, or those who commit treason. In a public statement, Roger Clegg, a former official within the U.S. Department of Justice Civil Rights Division, believed that “people who have committed serious crimes have shown a lack of trustworthiness and loyalty. Someone who has shown they won’t follow the laws should not have a role in making the laws themselves” (cited in Pettus, 2004). In her book Felony Disenfranchisement in America, Katherine Pettus (2004) responds to Roger Clegg’s position:
Clegg’s rhetorical position, using words such as “serious crimes,” “trustworthiness” and “loyalty” belie the actual situation, though, which is that the majority of felons are convicted for petty crimes, largely non-violent drug offenses. The assumption that there is an empirical connection between possession of marijuana and loyalty, which justifies stripping a citizen of voting rights is tenuous at best. (pp. 145–146)
Crimes for which many citizens may agree to warrant disenfranchisement, like murder, rape, or electoral fraud, constitute a “tiny minority” of the felonies for which people are disenfranchised in the U.S.; crimes like drug possession, for which there is often a link to poverty, make up the larger majority (Pettus, 2004). The criminalization of drug crimes has led to the disenfranchisement of a mass of citizens across the U.S., most of whom are Black American, and has been an overall expensive and unsuccessful solution to the drug problem in the U.S. (Chin, 2004). Although a majority of drug offenders are white, Black Americans make up the majority of those imprisoned for a drug offense (Chin, 2004). This disparity is an example of the way in which the justice system targets minority groups, specifically Black Americans.
In 2015, Clegg argued that:
[Black ex-felons had] been denied the right to vote . . . because of their own criminal acts. This is also true of the non-African American class members. Thus, it is not racial discrimination that deprives felons, black or white, of their right to vote but their own decision to commit an act for which they assume the risks of detection and punishment. (Spakovsky & Clegg)
However, this claim assumes that the committing of a criminal act is the same as being convicted for one and, furthermore, that this relationship is constituted by a simple moral judgement that is applied equally to all by the criminal justice system.
Pettus (2004) challenged the central assumption of Clegg’s argument about the connection between morality and crime: in particular, by correctly interpreting disenfranchisement to be “a direct result of conviction for crime, not of the criminal act itself” (p. 129). Pettus understood that the criminal justice system—as “a cumulative process that begins with identification of a suspect, followed by an arrest, processing, [and] conviction” (p. 129)—is a politically-charged process instead of one dependent on or constituted by a pure morality. Here “politically-charged” refers to the fact that, for a variety of reasons—like bias, criminalizing stereotypes, or over-policing—“African-Americans and other minorities are more likely to be subject to [the criminal justice system] than members of the dominant majority, even though they have committed the same crimes” (Pettus, 2004, p. 129). In other words, because white people who have committed the same crimes are less likely to enter or encounter the criminal justice system—that is, are less likely to be arrested, charged, or convicted—simply because they are white, the criminal justice system is not based in a moral judgement of the criminal act itself (Pettus, 2004). Disenfranchisement in America is not a punishment resulting from a fair and equal moral judgement about committing a crime: it is an unjust and deeply political punishment inflicted disproportionately on those who are actively criminalized and more likely to be convicted.
Disenfranchisement in America is not a punishment resulting from a fair and equal moral judgement about committing a crime: it is an unjust and deeply political punishment inflicted disproportionately on those who are actively criminalized and more likely to be convicted.
Questioning Richardson v. Ramirez: On the Constitutionality of Felon Disenfranchisement
Despite the tenuous reasoning behind support for felon disenfranchisement, decisions about felon disenfranchisement provisions have been left largely to the states. This is because the Fourteenth Amendment has been interpreted to protect the state’s right to determine voting disqualifications in the case of a felony conviction. However, multiple legal scholars have questioned the Supreme Court’s opinion, raising concerns about this alleged constitutional protection and developing arguments that might be used in future cases to overturn the precedent.
In 1974, a case was brought to the Supreme Court of California by a group of ex-felons who had completed their sentences and paroles but were still denied registration to vote at several polling stations in California (Richardson v. Ramirez, n.d.). In Richardson v. Ramirez, the plaintiffs argued that their disenfranchisement violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution (Richardson v. Ramirez, n.d.). The Equal Protection Clause refers to a segment in Section 1 of the Fourteenth Amendment that states:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (U.S. Const. amend. XIV)
While the county officials originally named as defendants in the case decided not to contest the action, the case was eventually brought to the U.S. Supreme Court. In their opinion, the justices concluded that California’s disenfranchising of convicted felons, even those who have completed their sentences and parole, does not violate the Equal Protection Clause (Richard v. Ramirez, n.d.).
The reason for this lies in Section 2 of the Fourteenth Amendment. In 1868, a few years following the Civil War, this clause was introduced to encourage southern states to enfranchise emancipated Black men by threatening the loss of congressional representation should they fail to do so (Chin, 2004). Historically, Section 2 of the Fourteenth Amendment is understood as a failed attempt at Black male enfranchisement. Section 2 reads as so:
when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion.
In Richardson v. Ramirez, the case hinged on one small exception clause within Section 2: the fact that voting rights can be abridged by states for those who had “[participated] in rebellion, or other crime” (Chin, 2004; U.S. Const. amend. XIV). Based on the phrase “or other crime,” the Supreme Court extrapolated that the states had the right to disenfranchise any criminal convicted of a felony (Richardson v. Ramirez, n.d.). Ironically, this means that Section 2 now plays a role in suppressing Black voters even though it was originally intended to enfranchise them.
Chin (2004) argued that the Supreme Court was wrong to use Section 2 of the Fourteenth Amendment in their ruling because it has been repealed by implication in the passing of the Fifteenth Amendment: “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude” (U.S. Const. amend. XV). While Chin did not rely on a purely historical argument, it is useful to understand historical context regarding the relationship between Section 2 of the Fourteenth Amendment and the Fifteenth Amendment.
When Congress penned Section 2, they assumed that the threat of reduced representation would be enough to force formerly Confederate states to comply and allow Black men to vote (Chin, 2004). However, even before the Fourteenth Amendment was passed, Congress recognized that indirect repercussions and vague wording—which scrubbed the direct mention of race to gain wider support—would not be enough to assure compliance (Chin, 2004). Furthermore, Congress never attempted to follow through on the threat of reduced representation. Instead, within the next year, Congress drafted and proposed the Fifteenth Amendment while also asserting military reconstruction throughout the South. It is largely accepted that the proposition of the Fifteenth Amendment in 1869 was a response to the failure of Section 2 to enfranchise Black men (Chin, 2004). Instead of allowing states to decide whether they wanted to continue discriminating and take the repercussions, the Fifteenth Amendment eliminated their choice by outright prohibiting racial discrimination in voting rights laws. Although states would continue to find less explicit ways to disenfranchise Black voters, the Fifteenth Amendment stated in no uncertain terms that the right to vote was not to be denied or reduced because of race (U.S. Const. amend. XV).
In his paper, Chin (2004) recounted this history but does not rely exclusively on a historical “intent” to support his conclusion to oppose Richardson v. Ramirez. He drew instead from judicial reasoning and precedent regarding conflicting provisions and the possibility of “repeal by implication” (p. 275). Generally, without the presence of an express repeal of a former law, courts assume that old and new laws function together if possible. However, precedents for “an implied repeal [are] found where provisions in two statutes are in [irreconcilable conflict] or where the latter act covers the whole subject of the earlier one and [is clearly intended as a substitute]” (p. 275). Even in the case of the Constitution, scholars have recognized that “amendments can operate as implied repeals of existing provisions . . . such as when the Nineteenth Amendment repealed . . . the denial of the franchise to women” (p. 276). Chin (2004) argued that both the criteria of conflict and coverage/substitution are met in the relationship between Section 2 of the Fourteenth Amendment and the Fifteenth Amendment; that is, “the Fifteenth Amendment simply eliminated the [discriminatory power] that Section 2 attempted to regulate” (p. 275). The Fifteenth Amendment eliminates the state’s authority to discriminate on the basis of race and, because Black Americans under the Fifteenth Amendment possess the right to vote, the penalty outlined in Section 2 of the Fourteenth Amendment is registered null and a “new and exclusive approach to remedy” replaced it (p. 275). Therefore, the two are in non-concordance, and one can assume that the Fifteenth Amendment implicitly repeals Section 2 of the Fourteenth Amendment.
The decision in the Richardson v. Ramirez case hinged largely on the exceptions in Section 2 of the Fourteenth Amendment concerning those convicted of a crime. Because the Fifteenth Amendment implies a repeal of Section 2, felon disenfranchisement needs to be reexamined under the Equal Protection Clause. Indeed, it is very unlikely that felon disenfranchisement could pass the standard of strict scrutiny. As Chin (2004) wrote:
A disenfranchisement statute for convicted felons is difficult to tailor narrowly. If it disenfranchises too few convicts, letting those with similar convictions vote, it is invalid as underinclusive. Thus, a three-judge U.S. District Court held in 1970 that New Jersey's felon disenfranchisement provision was invalid under equal protection because there was no principled basis for distinction between disenfranchising crimes and nondisenfranchising crimes. On the other hand, if a statute disenfranchises all felons, it may be invalid as overbroad. . . It is also difficult to identify the compelling state interest in disenfranchising felons. The typical justification for felon disenfranchisement is maintaining the ‘purity of the ballot box,’ . . . [yet] box impurity cannot be based simply on the undesirable viewpoint of the voter . . .[It has to argued] that felons will cast their votes corruptly. As Justice Marshall argued, surely there are less restrictive means of achieving that goal, such as enforcement of existing election laws. (pp. 311–312)
If the Supreme Court were to take up a case that challenged Richardson v. Ramirez, then they may have to consider the argument that Section 2 of the Fourteenth Amendment is repealed. Therefore, the disenfranchisement of felons would have to be tested under the strict scrutiny of the Equal Protection Clause. Moreover, further challenges would likely argue that the disproportionate disenfranchisement of people of color under felon disenfranchisement laws violates the Fifteenth Amendment. If Section 2 is no longer part of the evaluation, felon disenfranchisement will, in all likelihood, be ruled unconstitutional.
Conclusion
Arguments in favor of disenfranchisement often claim that it is a just punishment for convicted felons, ignoring the racial targeting which guarantees that all of those who encounter disenfranchisement laws will not be equally affected. Since its inception, the U.S. prison system has systemically targeted people of color, therefore laws that disenfranchise those within that prison system will always disproportionately affect people of color. Counterarguments either do not acknowledge or do not condone the modern effects of America’s white supremacist roots and the ongoing methodology of Black voter suppression. Even in asserting very constitutionality of felon disenfranchisement, one could argue that the Supreme Court stripped the Fourteenth Amendment of its Reconstruction-era context, including its affirmation of Black enfranchisement.
Reform to and even abolition of felon disenfranchisement laws is by no means the most radical of stances in any discussion about the criminal justice system in America. This is exemplified by the growing movement advocating for the total abolition of the prison system as a whole. Abolitionist groups argue that prisons only aid in perpetuating the social factors and inequities that lead to individuals committing crimes (Kushner, 2019). The American Civil Liberties Union (ACLU) voiced its support for the movement in the past noting that “incarceration does not work” (Kushner, 2019). The prison abolition movement seeks to remedy this by and shifting the focus from punishment towards rehabilitation and reinvestment in community resources. The restoration of millions of people’s ability to participate in representational democracy remains only one small but key step towards re-empowering marginalized communities in the fight for systemic change. Democracy thrives on giving a voice to all citizens. The disenfranchisement of felons creates underrepresentation for those who statistically favor more progressive policies and who have opposing interests from those in power.
The restoration of millions of people’s ability to participate in representational democracy remains only one small but key step towards re-empowering marginalized communities in the fight for systemic change.
One way or another, felon disenfranchisement laws must be abolished. As discussed in the introduction, the Democracy Restoration Act would be the minimum first step towards more democratic representation, as it would allow all citizens of voting age to vote in federal elections regardless of state laws, therefore removing the power to influence federal elections from state governments. This Act, and many others, must be passed in order to protect the political power of marginalized groups.
Definitions
Gerrymandering: The process used by political parties in which legislative districts are drawn in such a way that as many seats as possible are available for a party to win. For example, in 2010, Democrats drew an infamously skewed map in Maryland while Republicans did similar in Pennsylvania and North Carolina.
References
Adelman, L. (2018). Laundering Racism Through the Court: The Scandal of States’ Rights. Dissent Magazine. Retrieved from https://www.dissentmagazine.org/article/laundering-racism-through-court-scandal-states-rights-federalism.
Alexander, M. (2012). The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: The New Press.
American Civil Liberties Union (ACLU) (2020). School to Prison Pipeline. Retrieved from https://www.aclu.org/issues/juvenile-justice/school-prison-pipeline.
The Brennan Center for Justice. (2019, March 5). Supplemental written testimony in support of the Democracy Restoration Act. Retrieved from https://www.brennancenter.org/sites/default/files/legal-work/2019.3.5_Supplemental%20Written%20Testimony%20DRA.pdf.
Britannica. (2020, July 22). Grandfather Clause. Encyclopedia Britannica. Retrieved from https://www.britannica.com/topic/grandfather-clause.
Browne, J. (2007). Rooted in Slavery: Prison Labor Exploitation. Race, Poverty, & the Environment. Retrieved from https://urbanhabitat.org/files/RPE14-1_Browne-s.pdf.
Chin, G. (2004, January). Reconstruction, felon disenfranchisement, and the right to vote: Did the fifteenth amendment repeal section 2 of the Fourteenth amendment. Georgetown Law Journal, 92(2), 259–319. Retrieved from https://heinonline-org.ezproxy.library.wwu.edu/HOL/Page?handle=hein.journals/glj92&id=273&collection=journals&index=.
Chung, J. (2018, July 17). Felony disenfranchisement: A primer. Retrieved from https://www.sentencingproject.org/publications/felony-disenfranchisement-a-primer/.
Conn, J. B. (2003). Excerpts from the partisan politics of ex-felon disenfranchisement laws. Cornell University, Ithaca. Retrieved from https://www.prisonpolicy.org/scans/sp/fd_excerptspartisanpolitics.pdf.
Delaney, R. & Subramamian, R. & Shames, A. & Turner, N. (2018, September). American history, race, and prison. Retrieved from https://www.vera.org/reimagining-prison-web-report/american-history-race-and-prison.
Democracy Restoration Act. (2019, March 27). Retrieved from https://www.brennancenter.org/legislation/democracy-restoration-act.
Felony disenfranchisement laws in the United States. (2014, April 28). Retrieved from https://www.sentencingproject.org/publications/felony-disenfranchisement-laws-in-the-united-states/.
Felon voting rights. (2018, December 21). Retrieved from http://www.ncsl.org/research/elections-and-campaigns/felon-voting-rights.aspx.
Frey, W. H. (2019, September 5). Six maps that reveal America’s expanding racial diversity. Brookings. Retrieved from https://www.brookings.edu/research/americas-racial-diversity-in-six-maps/.
Goldstone, L. (2018, October 24). America’s relentless suppression of black voters. The New Republic. Retrieved from https://newrepublic.com/article/151858/americas-relentless-suppression-black-voters.
Gould, E. (2019, February 27). Stark black-white divide in wages is widening further. Economic Policy Institute. Retrieved from https://www.epi.org/blog/stark-black-white-divide-in-wages-is-widening-further/.
Harrell, E. & Langton, L. (2014) Household poverty and nonfatal violent victimization, 2008-2012. Bureau of Justice Statistics. Retrieved from https://www.bjs.gov/index.cfm?ty=pbdetail&iid=5137.
The History of Mass Incarceration. (2018, July 20). Retrieved from https://www.brennancenter.org/our-work/analysis-opinion/history-mass-incarceration.
House Passes Historic Democracy Reform Bill. (2019, March 8). Retrieved from https://www.brennancenter.org/our-work/analysis-opinion/house-passes-historic-democracy-reform-bill.
How the war on drugs affected incarceration rates. (2016, July 10). Retrieved from https://www.politifact.com/factchecks/2016/jul/10/cory-booker/how-war-drugs-affected-incarceration-rates/.
Kushner, R. (2019, April 17). Is prison necessary? Ruth Wilson Gilmore might change your mind. The New York Times. Retrieved from https://www.nytimes.com/2019/04/17/magazine/prison-abolition-ruth-wilson-gilmore.html?searchResultPosition=1.
Manza, Jeff & Uggen, C. (2006). The Racial Origins of Felon Disenfranchisement. Locked Out: Felon Disenfranchisement and American Democracy (pp. 41–68). Oxford University Press. Retrieved from https://www.nypl.org/sites/default/files/manza_uggen_-_chapter_2.pdf.
Mauer, M. (2019, April 9). Letter in support for the Democracy Restoration Act. Retrieved from https://www.sentencingproject.org/publications/letter-support-democracy-restoration-act/.
Mills, C. (2015, May 13). The Racial Contract revisted: still unbroken after all these years. Politics, Groups, and Identities, 3(3), 541–557. Retrieved from https://www.tandfonline.com/doi/abs/10.1080/21565503.2015.1053400.
Mullen, L. (2014, May 15). These maps reveal how slavery expanded across the United States. The Smithsonian Magazine. Retrieved from https://www.smithsonianmag.com/history/maps-reveal-slavery-expanded-across-united-states-180951452/.
NAACP. (n.d.). Criminal Justice Fact Sheet. Retrieved from https://www.naacp.org/criminal-justice-fact-sheet/.
Pettus, K. (2004). Felony disenfranchisement in america: Historical origns, institutional racism, and modern consequences. ProQuest Ebook Central. Retrieved from https://ebookcentral-proquest-com.ezproxy.library.wwu.edu/lib/wwu/detail.action?docID=3016755&pq-origsite=primo#.
Pollard, S. (Producer/Director). (2012). Slavery by another name [Film]. Boston, MA: PBS Distribution.
Richardson v. Ramirez, 418 U.S. 24 (1974). (n.d.). Retrieved from https://supreme.justia.com/cases/federal/us/418/24/.
Sabol, W. J & Johnson, T. L. & Caccavale, A. (2019). Trends in correctional control by race and gender. Council on Criminal Justice. Retrieved from https://cdn.ymaws.com/counciloncj.org/resource/collection/4683B90A-08CF-493F-89ED-A0D7C4BF7551/Trends_in_Correctional_Control_-_FINAL.pdf.
The Sentencing Project. (n.d.). Criminal Justice Facts. Retrieved from https://www.sentencingproject.org/criminal-justice-facts/.
Spakovsky, H. & Clegg, R. (2015, February 11). Felon voting and unconstitutional congressional overreach. Retrieved from https://www.heritage.org/crime-and-justice/report/felon-voting-and-unconstitutional-congressional-overreach#_ftn1.
Speiser, M. (2017, November 27). This map shows the US really has 11 separate 'nations' with entirely different cultures. The Independent. Retrieved from https://www.independent.co.uk/news/world/americas/us-map-11-separate-nations-colin-woodward-yankeedom-new-netherland-midlands-tidewater-greater-appalachia-a8078261.html.
Sonmez, F. (2019, January 30). McConnell says bill that would make Election Day a federal holiday is a ‘power grab’ by Democrats. The Washington Post. Retrieved from https://www.washingtonpost.com/politics/mcconnell-says-bill-that-would-make-election-day-a-federal-holiday-is-a-power-grab-by-democrats/2019/01/30/57421dd6-24bd-11e9-ad53-824486280311_story.html.
Taormina, R. (2003). Defying one-person, one-vote: Prisoners and the "usual residence" principle. University of Pennsylvania Law Review, 152(1). 431–462.
Thedford, R. (2018, March 16). Ex-Felon Disenfranchisement and the Fifteenth Amendment: A Consitutional Challenge to Post-Sentence Disenfranchisement. Indiana Journal of Law and Social Equality, 6(1), 92–110. Retrieved from https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1078&context=ijlse.
Tyson, A. (2018, November 8). The 2018 midterm vote: Divisions by race, gender, education. Retrieved from https://www.pewresearch.org/fact-tank/2018/11/08/the-2018-midterm-vote-divisions-by-race-gender-education/.
U.S. Const. amend. XIV. Retrieved from https://www.law.cornell.edu/constitution/amendmentxiv.
U.S Const. amend. XV. Retrieved from https://www.law.cornell.edu/constitution/amendmentxv.
VII. Constitutionality of Criminal Disenfranchisement (n.d.). Retrieved from https://www.hrw.org/legacy/reports98/vote/usvot98o-05.htm.
Williams, T. & Blinder, A. (2019, May 14). Lawmakers vote to effectively ban abortion in Alabama. The New York Times. Retrieved from https://www.nytimes.com/2019/05/16/learning/learning-with-lawmakers-vote-to-effectively-ban-abortion-in-alabama.html?searchResultPosition=1.
Author
Maggie Thunselle is a 22-year-old writer from Snohomish, Washington. She graduated from Western Washington University in the Spring of 2020 with a degree in Political Science and a minor in Anthropology. She hopes to continue studying and writing about contemporary social issues and their impact on society and culture.