Disenfranchisement of Felons and Ex-Felons

One of the difficulties when it comes to the issue of the voting rights of felons is that there is little agreement between Republicans and Democrats on whether or not incarcerated individuals should be allowed to vote.

Some believe that rights should be returned to individuals on a case-by-case basis, or say that disenfranchisement should “be a part of the punitive process.” On the other hand, those who disagree with disenfranchisement argue that voting should not be a part of punishment as it is a matter of citizenship. Advocates further argue that the disenfranchisement of a certain group erodes democracy, a principle that the U.S. prides itself on.

According to the American Civil Liberties Union (ACLU), approximately 5.85 million individuals are disenfranchised due to felony convictions (and in some states, misdemeanors). The ACLU also notes that more individuals are disenfranchised due to confusion over and misapplication of disenfranchisement laws. Of the 50 U.S. states, only Vermont and Maine allow all residents to vote, and three states--Iowa, Kentucky, and Virginia-- permanently disenfranchise people with felony convictions.

The Sentencing Project, a research and advocacy group in Washington, D.C., found that the 5.85 million incarcerated individuals to be the estimated number of disenfranchised people in 2010. A 2016 report conducted by Christopher Uggen, Ryan Larson, and Sarah Shannon, found that there is was an estimated 6.1 million Americans disenfranchised by felony convictions. The three authors noted that this figure "has escalated dramatically in recent decades as the population under criminal justice supervision has increased."

One of the common arguments against allowing felons the right to vote is that public safety is at risk. For example, legislation was introduced in 2019 in the state of New Mexico that would have given the right to vote to all people with felony convictions, incarcerated or free, but the bill didn’t get enough support. Democratic state Representative Daymon Ely said, “I just don’t think the public is read for something like that.”

There is also a fear of the government being changed negatively if individuals convicted of crimes had the ability to vote. There is concern that allowing felons to vote would dramatically change the results of elections, federal, state and local.

According to an NPR article by Nina Totenberg, nearly two-thirds of Floridians voted to “amend the state constitution and allow felons to vote'' in 2018. This amendment would apply to felons who had finished their paroles or probationary periods but would not apply to individuals convicted of murder or sexual offense. This amendment had bi-partisan support outside of legislation and would have enfranchised 1.4 million Floridians.

Despite public support of returning the vote to felons, Floridian Republicans moved to prevent the amendment from taking full effect by passing a law that “conditioned the right to vote on payment of all fees, fines and restitution that were part of the sentence in each felon's case.”

With the passage of this new law, there was no creation of a system to help felons determine “how much, if anything, they owed,” and the state had no listing of the information. Totenburg notes that Florida “ultimately agreed that it would take six years to create such a system.”

Initially, two felons challenged this ruling and won in both the federal district court and the court of appeals. “In a second phase of the litigation, Judge Robert Hinkle held an eight-day trial and found that the "overwhelming majority" of felons would be too poor to pay the amounts owed, if they could find out what they owed. Hinkle said that the pay-to-play law had created "an administrative nightmare" and that it also amounted to an unconstitutional tax on voting.” Hinkle’s ruling “converted what had been a preliminary injunction barring the law from going into effect, into a permanent injunction.”

Yet without explanation, the 11th Circuit of Appeals halted Hinkle’s decision from going into effect, two months after the decision. At the same time, a new case hearing was set for the day of the state primary, August 18th, by the court of appeals (a court that has six of Trump’s appointees).

The felons went to the U.S. Supreme Court, yet again without explanation, upheld the 11 Circuit of Appeals’ temporary block which prevents felons from either registering or voting. Totengberg notes that there are an estimated 85,000 already registered individuals who will face persecution if they vote and it is found that they still have unpaid fees or fines.

“The Supreme Court's failure to reinstate the status quo, said Sotomayor, "continues a trend of condoning disenfranchisement." Ironically," she wrote, the court majority has "wielded Purcell as a reason to forbid courts to make voting safer during a pandemic, overriding two federal courts because any safety related changes supposedly came too close to election day."” Justice Sotomayor concluded that, “faced with an appellate court stay that disrupts a legal status quo and risks immense disenfranchisement — a situation that Purcell sought to avoid — the court balks.”

While judges have the ability to waive court debt, they also face pressure and the possibility of retribution during election cycles if they are criticized as being soft on crime. In 2015, Republicans in North Carolina passed legislation that publicizes judges’ annual waiver rate in an effort to pressure judges to be harsher.

In 2019, voting rights advocates sued the state in order to return voting rights to the disenfranchised individuals under the North Carolina Constitution. In a 2-1 decision, the court found “that North Carolina had imposed an unconstitutional “property qualification” [a Jim Crow law] on the right to vote while unlawfully discriminating against the indigent.” The court granted individuals who had served their probation but still had outstanding court debt would be allowed to vote, and “restored suffrage to any resident denied the ballot solely because they cannot afford to pay court-imposed fines and fees.” The court also announced that the entirety of North Carolina’s statute is open to dispute (whether or not the statute is “tainted by illicit racial bias.”) While judges Lisa Bell and Keith Gregory believe North Carolina’s felon disenfranchisement is unconstitutional, they are set to decide whether or not felon disenfranchisement for all North Carolina residents whether they are on probation or parole should be struck down “after a full trial, not at this preliminary stage, two months out from an election.”

“For now,” Stern writes, “the court’s decision will ensure that as many as 100,000 indigent ex-felons can participate in this year’s election.”

2020 has marked an incredible year that has cracked open America’s white consciousness to the realities of police brutality and racial injustice that sat beneath the surface, masked in different ways. Both of these two issues collide when it comes to disenfranchisement of people with criminal convictions.

Once again, the question to ask is a question posed by George Will in an article for The National Review. To be accurate, it is the title of his article: What Government Interest Is Served by Disenfranchising Felons? And how long will lawmakers use tactics not only like those utilized by big tobacco (using statistics to prove their point) but also tactics that echo the Jim Crow era, to attempt to prevent people from having the right to vote?