The Last Frontier of Disenfranchisement: Felons and Voting Rights in America

Opinion by Samuel Marks

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The history of disenfranchisement in the United States is vast and extensive. Disenfranchisement is defined as “to deprive of a franchise, of a legal right, or of some privilege or immunity, especially to deprive of the right to vote” (“Defranchise”). When the United States was founded, franchise, or the right to vote, was quite restricted. Upon the creation and ratification of the Constitution in 1787, only a sliver of the population was deemed eligible to vote. The first citizens granted franchise consisted of exclusively white, land-owning men who comprised a mere 6% of the country’s population (“Voting Rights Throughout”; “Voting Rights: A Short History” 2019).

Over the course of American history, there have been efforts to ensure all citizens have the right to vote. However, there is still one final group in the United States that has been unfairly disenfranchised: former felons. The history of felon disenfranchisement has its roots in the nascent formation of the country. For example, Kentucky passed criminal disenfranchisement laws as early as 1792. However, following the Civil War, criminal disenfranchisement became a particularly popular method as a deliberate means of unfairly disenfranchising African Americans. These new disenfranchisement efforts were used in tandem with the increase of the significant and spurious number of felony charges that specifically targeted African Americans (Kelly 2017; Ghandnoosh 2021).

Since then, the issue of felon disenfranchisement has been at the forefront of several concerted efforts, beginning as early as the Civil Rights Movement. With the passage of the Voting Rights Act of 1965 and the ratification of the 24th Amendment (banning poll taxes), many disenfranchisement efforts to weaken the African American vote were diminished. This resulted in a re-emphasis on the efforts of felon disenfranchisement of African Americans by many states, particularly in the South and West. This was viewed as the “last” means of preventing African Americans from voting; this has often been referred to as the “New Jim Crow” method/argument for disenfranchising African Americans (Eubank and Fresh 2022).

The right of states to disenfranchise felons was guaranteed by the 1974 Supreme Court case Richardson v. Ramirez. In this case, the Court found that felon disenfranchisement, both during and after time served, was not unconstitutional nor a violation of the 14th Amendment’s Equal Protection Clause (Schrader 2009). This left the decision of whether to grant felons and former felons the right to vote on a state-by-state basis. 

Felon disenfranchisement has resulted in an estimated 6.1 million people being barred from the right to vote. Of that figure, 4.7 million of them are living among us—working, paying taxes, and leading a normal life (Ghandnoosh 2021). The significance of this issue is that it unfairly targets African Americans. This targeting is so pervasive and disproportionate that 1-in-13 African Americans are ineligible to vote due to these disenfranchisement efforts. Furthermore, this issue is so prevalent that, in certain states, the figure increases to 1-in-5 African Americans (Ghandnoosh 2021).

Felon disenfranchisement inherently weakens the overall minority vote. Minority votes become diminished in cases of felon disenfranchisement, due to the fact that felons count toward the population total, resulting in greater representation, despite the inability to select such representation. The resulting effect is that minority votes are undervalued when compared to that of white, non-felon, voters in the same district (Bowers and Preuh 2009). This is similarly reminiscent of the concept of the 3/5ths Compromise (where African American slaves were counted as 3/5ths of a person for the method of determining representation in the House of Representatives), as disenfranchised felons count towards representative means without the right to contribute. Therefore, the minority votes are weakened, devalued, and diminished—specifically, African American votes. 

It is important to note that since 2018, great strides have been made toward felon reenfranchisement. However, in many cases, these efforts are still genuinely poor and/or absent (Felony Disenfranchisement Laws 2022). On the spectrum of felon disenfranchisement, there are four key groupings that roughly categorize the efforts of the individual states. On the most extreme side of the spectrum is full felon disenfranchisement, regardless of the circumstances; this includes release from incarceration, parole, probation, and even full freedom. This set includes states such as Virginia and Kentucky, which enacted permanent disenfranchisement of felons. The next grouping of states maintains semblances of, but not absolute, disenfranchisement for felons, and widely varies state-to-state. This set includes states such as Florida, Alabama, and Arizona. The third grouping of states upholds disenfranchisement only for those currently incarcerated, who become reenfranchised upon release—a system where people currently in prison cannot vote and everyone else can (Felony Disenfranchisement Laws 2022). This set includes states such as California, Pennsylvania, New Jersey, and New York. The final grouping of states (and territories) grants full enfranchisement to all its residents; everyone, including felons currently serving their sentences. This set includes states/territories such as Maine, Vermont, and the District of Columbia (Felony Disenfranchisement Laws 2022).

The overwhelming evidence of the disparities in felon disenfranchisement, which bars citizens from a basic, inalienable right, points to a need for reenfranchisement efforts. Therefore, the soundest recommendation is to ensure that all states, at a minimum, grant the right to vote to anyone currently not incarcerated. The equitable, non-arbitrary deliberation in regaining the right to vote calls for the innovative requirement that all states move towards the aforementioned third grouping of states (disenfranchisement only for felons currently incarcerated) (Felony Disenfranchisement Laws 2022).

The first innovative policy recommendation to ensure reenfranchisement for former felons is via state-wide initiatives. Initiatives, or ballot initiatives, are “a specified number of voters petitioning to invoke a popular vote on a proposed law or an amendment to a Constitution” (“Referendum and Initiative” 2023). There are several benefits associated with this method of reenfranchising former felons. The primary one is that an initiative, such as an amendment to a state’s constitution, can circumvent states led by Republican majorities (Morse 2021). This is a particularly salient caveat, as many Republican-led states have demonstrated that they are not inclined to support felon enfranchisement efforts, given the political reality that a majority of former and current felons are likely to support Democrats (Morse 2021). Furthermore, according to a 2018 Pew Research Center poll, a majority of Americans support reenfranchisement efforts, regardless of political affiliation (Ghandnoosh 2021). 

A second innovative policy recommendation for the reenfranchisement of former felons is through executive orders from state governors. An executive order, in this context, is “a directive issued by a governor that regulates operations of the state government and certain aspects of citizen life” (“Governors’ Powers & Authority”). There are several benefits to this method. The first is its relative simplicity, as it only requires a governor to sign an executive order that reenfranchises former felons. For example, in 2018, former New York Governor Cuomo signed Executive Order 181 to restore the voting rights to all former felons released from prison (initially excluding those on parole, but that provision was eventually rectified with later state government legislation) (“Executive Order #181” 2018). This circumvents the laborious political procedures and administrative processes required by initiatives, which mandate obtaining petition signatures at multiple levels. Additionally, there are also frequent challenges to the specific language of such amendments. Finally, this circumvents the requirement of a supermajority vote by the population for an initiative to be successfully added. 

Another benefit behind this particular recommendation is its relative speed. To pass an executive order is a far more streamlined effort while having the benefit of reducing an expected time horizon. This is in contrast to initiatives, where the political campaigning and the adherence to the administrative procedures/frequently cumbersome bureaucratic processes for initiatives are time-consuming and financially demanding.

In conclusion, the disenfranchisement of former felons, the final significant disenfranchisement in the United States (excluding Puerto Rican disenfranchisement as an entirely different issue), needs to end. The clear and deliberate targeting of African Americans, using felon disenfranchisement efforts, is deplorable and must be eliminated. There are incalculable harms presented through former felon disenfranchisement, but most prominently through their marginalization, specifically as active members of a democratic society. Furthermore, the advantages received by becoming reenfranchised, specifically in lowering recidivism and bolstering positive social norms, are supremely important. 

References

Bowers, Melanie and Robert Preuhs. 2009. “Collateral Consequences of a Collateral Penalty: The Negative Effect of Felon Disenfranchisement Laws on the Political Participation of Nonfelons.” Social Science Quarterly, 90(3): 722–743. www.jstor.org/stable/42940613.

“Disenfranchise.” Merriam-Webster Dictionary. www.merriam-webster.com/dictionary/disenfranchise.

Eubank, Nicholas and Adriane Fresh. 2022. “Enfranchisement and Incarceration after the 1965 Voting Rights Act.” The American Political Science Review, 116(3): 791–806. doi.org/10.1017/S0003055421001337.

“Executive Order #181.” 2018. Office of the Governor of New York. www.governor.ny.gov/sites/default/files/atoms/files/EO_181.pdf.

“Felony Disenfranchisement Laws.” 2022. American Civil Liberties Union. www.aclu.org/issues/voting-rights/voter-restoration/felony-disenfranchisement-laws-map.

Ghandnoosh, Nazgol. 2021. “Voting Rights In The Era of Mass Incarceration: A Primer.” The Sentencing Project, July 28. www.sentencingproject.org/policy-brief/voting-rights-in-the-era-of-mass-incarceration-a-primer/.

“Governors’ Powers & Authority.” National Governors Association. www.nga.org/governors/powers-and-authority/. 

Kelly, Erin. 2017. “Racism & Felony Disenfranchisement: An Intertwined History.” Brennan Center for Justice, May 9. www.brennancenter.org/our-work/research-reports/racism-felony-disenfranchisement-intertwined-history.

Morse, Michael. 2021. “The Future of Felon Disenfranchisement Reform: Evidence from the Campaign to Restore Voting Rights in Florida.” California Law Review, 109(3): 1143–1198. ssrn.com/abstract=3875714.

“Referendum and Initiative.” 2023. Encyclopædia Britannica, March 1. www.britannica.com/topic/referendum.

Schrader, John B. 2009. “Reawakening ‘privileges or immunities’: an originalist blueprint for invalidating state felon disenfranchisement laws.” Vanderbilt Law Review, 62(4): 1285–1314. scholarship.law.vanderbilt.edu/vlr/vol62/iss4/5.

“Voting Rights Throughout United States History.” National Geographic Education. education.nationalgeographic.org/resource/voting-rights-throughout-history.

“Voting Rights: A Short History.” 2019. Carnegie Corporation of New York, November 18. www.carnegie.org/our-work/article/voting-rights-timeline/.