FELON DISENFRANCHISEMENT: A look at the history of Felon Disenfranchisement in the United States

Aleta Dam, November 2016

On February 3rd, 1870 the United States Congress ratified the Fifteenth Amendment to the Constitution. An historic event, this amendment marked a momentous occasion for the country. The Fifteenth Amendment potentially secured all American citizens the right to vote, a coveted ability in our democratic society, making it very significant when it is taken away. Suffrage movements are an important part of our nation’s history and they demonstrate just how significant this freedom is. The Constitution gives the states the power to institute voter qualifications within keeping to the previous conditions stated by the Constitution. Within this lies the power of each state to decide if felons should be allowed the right to vote. Felon disenfranchisement in the United States has a complex and heavily contested history. In recent years this issue has begun to see more light and grab the attention of a larger population of people. The right to vote is such a crucial part of the democratic process that is so championed in America. It has even been shown that the large amount of felon disenfranchisement has greatly affected the outcome of many elections. The important question being posed to the nation is if it is unconstitutional for the right to vote to be taken away from any citizen as a result of a felony charge and what implications this has on the democratic process.

The history of felon disenfranchisement can be traced back to ancient Greece and Rome, where they used the concept of “infamy” to bar criminals from voting and from other political duties [1]. This principal spread throughout Europe, including to England where those who committed crimes lost protection from society and lost all ability to participate in any civil liberties, referred to as “civil death” [2]. As a result the American colonies applied a similar principle in outlawing criminals from voting which extended into state constitutions, twenty four states had portions of their constitutions addressing felon disenfranchisement by 1857 [3]. During the time of reconstruction in the United States the fourteenth and fifteenth amendments were passed, in July of 1868 and February of 1870 respectively, these amendments granted and protected the rights of African Americans to vote. Although both of these amendments opened the vote up to a whole new large population, they did in a way uphold the ability of states to withhold voting from criminals. Section two of the fourteenth amendment “specified that states would lose congressional representation if they denied males the right to vote, “except for participation in rebellion, or other crime”” [4]. This extension of the vote was a radical idea to much of the nation, especially in the South, where as a result, they began to use their ability to limit voting on case of felony charges to do what they called “keep the vote pure”. They accomplished this by making laws that disenfranchised criminals only if they committed specific crimes, crimes that were assumed to be associated with African Americans [5]. Mississippi was the first state to institute such a law in 1890 and many other southern states followed soon after with similar amendments to their constitutions [6]. Jason Schall in a paper regarding felon disenfranchisement in America states that “John Fielding Burns, who wrote Alabama’s disenfranchisement amendment, believed that solely by listing wife-beating as an offence resulting in the loss of suffrage the state could eliminate 60% of Negroes from eligibility” [7]. This was just the beginning of the passage of laws across the nation that denied criminals the right to vote.

Criminal disenfranchisement is currently the largest disenfranchised group in the United States and as well as being one of the only countries that denies voting rights to felons who are not incarcerated [8]. Across the country the specificity and range of criminal disenfranchisement laws vary state to state. Only two states in the country, Maine and Vermont never restrict voting rights to felons, allowing felons to vote while in prison [9]. Fifteen states only bar felons from voting while in prison, these include the District of Columbia, Hawaii, Illinois, Indiana, Maryland, Massachusetts, Michigan, Montana, New Hampshire, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, and Utah [10]. Four states restrict felons from voting in prison or on parole, these include California, Colorado, Connecticut, and New York [11]. Eighteen states; Alaska, Arkansas, Georgia, Idaho, Kansas, Louisiana, Minnesota, Missouri, New Jersey, New Mexico, North Carolina, Oklahoma, South Carolina, South Dakota, Texas, Washington, West Virginia, and Wisconsin all bar felons from voting while in prison, on parole and even when on probation [12]. The twelve most severe states regarding felon disenfranchisement are Alabama, Arizona, Delaware, Florida, Iowa, Kentucky, Mississippi, Nebraska, Nevada, Tennessee, Virginia, and Wyoming where no criminal in prison, on parole, on probation, or post sentence are allowed to vote [13]. The trouble with the states that do allow felons to regain their right to vote after sentence served is that this process can be long and complicated, and many times the information regarding the process is hard to find or not provided. It is estimated that currently about 6.1 million Americans are unable to vote because of felon disenfranchisement laws [14]. This number is disproportionately comprised of minorities, with African Americans being in the greatest number of the disenfranchised due to criminal offenses [15].

The United States prides itself in being a democratic country, a place where every citizen has the right to participate in electing officials, has the freedom to voice their political opinions, and can be confident in their protection of this right. The country is dependent on this system in order for the democratic process to be upheld. Felon disenfranchisement has the potential to impair this process. Many studies have been conducted to determine what type of effect, if any, does this large group of disenfranchised have on the outcomes of elections. One study published in the American Sociological Review Journal by Christopher Uggen and Jeff Manza, calculated that the majority of felons across the country would have voted democratic in national elections and that the data has shown that “felon disenfranchisement has provided a small but clear advantage to Republican candidates in every presidential and senatorial election from 1972 to 2000” [16]. One of the major case studies regarding the impact on felon disenfranchisement on elections is in relation to the 2000 presidential election, with Democratic candidate Al Gore vs. Republican candidate George W. Bush. This historic election is famous for many reasons, even resulting in a Supreme Court case. Al Gore won the popular vote but lost the Electoral College votes by 271 to 266 [17]. The focus of the election dispute was centered on the state of Florida where there was a vote counting controversy. Investigations into this election have shown that had disenfranchised felons been permitted to vote Al Gore’s victory in the popular vote across the country would have been even greater, more importantly it has been shown by Uggen and Manza that “if disenfranchised felons in Florida had been permitted to vote, Democrat Gore would certainly have carried the state and the election” [18]. This is only one example of the impacts that disenfranchising felons can have on the nation’s democratic process. If this one factor could have changed the outcome of a presidential election shouldn’t it be of greater importance to the country?

The important question regarding this issue is if it is unconstitutional for the right to vote to be taken away from any citizen as a result of a felony charge. There are many facets within this question, should the vote ever be taken away due to criminal conviction? Should inmates be allowed to vote? Should felon disenfranchisement be federally regulated? Should a criminal charge permanently bar an individual from their voting rights? Some people believe as Kentucky republican senator Mitch McConnell does, he said in 2002 that “States have a significant interest in reserving the vote for those who abided by the social contract…Those who break laws, should not dilute the vote of law-abiding citizens” [19]. While others take the opposing stance, that it is unconstitutional for any citizen to be barred from voting, and still some fall in between both sides. The Sentencing Project which was founded in 1986 is a non-profit organization dedicated to creating a fair U.S. criminal justice system [20]. They have a section dedicated to criminal disenfranchisement including an article published by Marc Mauer the executive director of the sentencing project, arguing that felon disenfranchisement laws are undemocratic under all circumstances [21]. He makes a strong argument in support of repealing laws that take away voting rights for felons. In one part of his essay he states “While imprisonment clearly represents a loss of liberty, we do not normally impose restrictions on the fundamental rights of citizenship for those who are incarcerated” [22]. In essence Mauer is making the distinction that when an individual goes to prison they don’t relinquish their citizenship even though they are removed from society, thus if voting is a right given to all citizens by the constitution, it should be clear that felon disenfranchisement should be reversed.

Overall the history of felon disenfranchisement in the United States is one marked with controversy, discrimination, and many court cases. Cases have been brought before the courts regarding felon disenfranchisement for decades. A very influential case took place in 1974, Richardson vs Ramirez. This case was brought to the California Supreme Court by three felons who had served their sentences and parole, and been barred from registering to vote [23]. The California Supreme Court ruled in their favor that under the state constitution of 1879 this was a violation of the Fourteenth Amendment. However this case was then brought to the U.S. Supreme Court where a completely different outcome occurred. The U.S. Supreme Court overturned California’s ruling, using section two of the Fourteenth Amendment as reasoning, George Brooks in his essay regarding felon disenfranchisement states that in this case “the court held that the framers of the Amendment intended to exclude felons from the franchise” [24]. This radical ruling has been used as a premise for other similar cases and is an excellent example of the controversy and importance of this subject.

Felon Disenfranchisement is an issue that needs continued support and investigation. The United States is country that prides itself in upholding its finely crafted Constitution and its democracy hence the disenfranchisement of any citizen should not be taken lightly. It is important for all US citizens to take an interest in their nation’s history and current political issues.

Notes

[1] Schall, Jason.”The Consistency of Felon Disenfranchisement with the Citizenship Theory”. Harvard Blackletter Law Journal 22, (Spring2006 2006): 53-93. Academic Search Complete, EBSCOhost (accessed October 22, 2016).
[2] Ibid.
[3] Ibid.
[4] Behrens, Angela, Christopher Uggen, and Jeff Manza. “Ballot Manipulation and the “Menace of Negro Domination”: Racial Threat and Felon Disenfranchisement in the United States, 1850–20021.” American Journal of Sociology 109, no. 3 (2003): 562.
[5] Solomon, Antoinette. “Democracy Unchained: Judicial Review of Felon Disenfranchisement Laws in America and an International Comparison.” (2016).
[6] Schall, Jason. “The Consistency of Felon Disenfranchisement with the Citizenship Theory”. Harvard Blackletter Law Journal 22, (Spring2006 2006): 58 Academic Search Complete, EBSCOhost (accessed October 22, 2016)
[7] Ibid., 59
[8] Uggen, Christopher, and Jeff Manza. “Democratic contraction? Political consequences of felon disenfranchisement in the United States.” American Sociological Review (2002): 778
[9] Chung, Jean. “Felony Disenfranchisement: A Primer | The Sentencing Project.” The Sentencing Project. Accessed October 31, 2016. The Sentencing Project.
[10] Ibid.
[11] Ibid.
[12] Ibid.
[13] Ibid.
[14] Ibid.
[15] Ibid.
[16] Uggen, Christopher, and Jeff Manza. “Democratic contraction? Political consequences of felon disenfranchisement in the United States.” American Sociological Review (2002): 777-803
[17] “U. S. Electoral College.” National Archives and Records Administration. Accessed October 31, 2016. https://www.archives.gov/federal-register/electoral-college/votes/2000.html.
[18] Uggen, Christopher, and Jeff Manza. “Democratic contraction? Political consequences of felon disenfranchisement in the United States.” American Sociological Review (2002): 777-803
[19] Ibid.
[20] Mauer, Marc. “Voting Behind Bars: An Argument for Voting by Prisoners.” Howard Law Journal (2011):549-566 The Sentencing Project Voting Behind Bars
[21] Ibid.
[22] Ibid.
[23] Brooks, George. “Felon Disenfranchisement: Law, History, Policy, and Politics”. Fordham Urban Law Journal(2004) 32: 101-148
[24] Ibid.

Further Reading

Manza, Jeff and Christopher Uggen. Locked Out: Felon Disenfranchisement and American Democracy. New York, New York. Oxford University Press Inc. 2008
“Felon Voting Rights.” NCSL National Conference of State Legislatures. 2016. http://www.ncsl.org/research/elections-and-campaigns/felon-voting-rights.aspx.

“Virginia Court Overturns Order That Restored Voting Rights To Felons.” NPR. July 22, 2016. NPR Virginia Court Overturns Order That Restored Voting Rights to Felons.