Unconstitutional Disenfranchisement

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In a July 2002 Harris poll, 80 percent of Americans said felons should have their voting rights automatically restored once they have served their sentences. 

Sixty percent would restore the same rights to parolees.  While Americans have little sympathy for incarcerated criminals, there seems to be common agreement among us that, once a person has “paid his debt,â€? he should have another chance to reconnect with, and be a full participant in, civil society.   Even criminals, after all, can turn their lives around; not all felons are murderers, rapists, or violent criminals.  Indeed, two thirds of America's prisoners are in jail for non-violent offenses.

We say that we want ex-convicts to be productive members of society, but in most states we send them a different message by denying them the right to vote.   Thirty-six states prohibit felons from voting while they are on parole. Thirty-one states deny the right to vote to felony offenders on probation who have never been incarcerated.  Ten states --including Alabama, Mississippi, Iowa and Nebraska—permanently disenfranchise many types of offenders, while allowing others to apply for restoration of voting rights after a waiting period.  Three southern states, Florida –the deciding state, infamously, in the 2000 presidential election—Kentucky and Virginia, deny the right to vote to all ex-felons.  In four states convicts can vote from their prison cell.  

Neither permanent disenfranchisement nor the differences among states in their treatment of ex-felons makes sense today in light of public opinion or recent U.S. history.  During the Civil Rights Movement of the 1960s, Southern states were vilified for using ostensibly race-neutral tactics– like poll taxes, property requirements, and reading tests – to prohibit Blacks and other minorities from voting.   A common refrain at the time was that all U.S. citizens should have the same voting rights, and that it was unconstitutional for states to come up with different requirements for voting which had the effect of disenfranchising certain groups.  The federal government stepped in through the Voting Rights Act of 1965 and abolished these tactics, giving the impression that one man, one vote was the law of the land.  But when it comes to ex-felons, it clearly is not. 

Why is this so?  Part of the reason is that the Supreme Court has ruled that it is not unconstitutional to deny felons the right to vote.  In Richardson v. Ramirez, a 1974 case, the Court confirmed that the 14th Amendment to the U.S. Constitution permits states to deny the vote to ex-felons in some states even while other states allow their prisoners to remain enfranchised.  In a case before it 11 years later, the Supreme Court held that only a disenfranchisement law reflecting “purposeful racial discriminationâ€? is unconstitutional. 

Nonetheless, it is widely acknowledged that laws which keep ex-felons from voting derive from a time when states did purposefully seek to discriminate against and prevent Blacks from voting. Many such laws date back to the mid 1800s, when they were created to keep Blacks with even minor criminal records from the polls. At the same time, many statutes applicable to non-criminals (such as the poll taxes and property requirements mentioned above) were also enacted to disenfranchise Blacks.  The inescapable conclusion is that the states’ intention was to deny Blacks the vote through any means necessary. It therefore seems disingenuous to assert, as today's courts do, that these vestigial traces of manifestly discriminatory legislation are constitutionally acceptable because they are racially neutral.

Today an estimated 4.7 million Americans, or one in forty-three adults, have lost their voting rights – some permanently – because of a felony conviction. African Americans are disproportionately impacted: an estimated 1.4 million African American men (or 13%) are disenfranchised, seven times the national average.  In Florida, where ex-felons are permanently disenfranchised, one in four Black men cannot vote.  But until someone can show in a court that this disparate impact is intentionally racially discriminatory, these state laws will remain in place absent legislative action to overturn them.

Some politicians are now trying to take such action.  Earlier this year, Senators Hillary Clinton and John Kerry introduced the Count Every Vote Act.  Among the provisions in the act is a measure to ensure that voting rights are restored to the 4.7 million felons who have completed their prison terms, parole or probation.   The Senators have been accused of playing politics, since felons tend to vote disproportionately for Democrats.  In any event, because few politicians – Democrat or Republican - want to be publicly identified as pro-criminal rights, it is regrettably doubtful that the Count Every Vote Act will ever become law.

Black Star columnist Dorn is an attorney and member of NY and IL bars.

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