Budget Woes and Partisan Politics Block Election Reform

By Lisa Rab

Vol. 23, No. 2, 2001 pp. 6-13

Despite the initial scramble to introduce legislation responding to the election chaos in Florida, very few Southern states passed comprehensive election reform measures in 2001.

Stymied by budget constraints and partisan wrangling, well-intended legislation was consistently dropped, voted down, or left languishing in committees. Expecting the federal government to foot at least part of the bill, many states either delayed passing legislation or only passed bills that did not require extra funds.

Those states that did pass comprehensive laws did not allocate enough state funds to fully cover equipment upgrades and voter education, relying instead on county or federal contributions to make up the difference. Measures that have been dubbed the most progressive–like those passed in Georgia and Florida–hinge on funding that has yet to materialize. A state-by-state analysis illustrates how funding and partisan politics, among other factors, prevented most substantive reforms from being passed in the Southern states.

Alabama: Bipartisan Effort to Broaden Franchise and Combat Voter Fraud Fails

Voter identification and the voting rights of ex-felons, the two most important election reform issues for Alabama Republicans and Democrats, respectively, were addressed by two bills that moved jointly through the General Assembly. Both bills, however, died in the Senate on the last day of the legislative session.

Representative Jim Carnes sponsored the Republican bill that would have required voters to show some form of identification at the polls. Representative Yvonne Kennedy sponsored the Democratic bill that would have restored the voting rights of felons who had completed their sentences. The two bills moved jointly through the Alabama House of Delegates in order to garner bipartisan support, but neither bill was brought to a vote in the Senate.

For several years the Alabama Democratic Conference (ADC) and other advocates representing the African-American population of Alabama have introduced legislation to restore the voting rights of felons . Currently, people convicted of a felony in Alabama are disfranchised for life unless they apply to have their voting rights reinstated and submit to a DNA test. In 1998 over 31 percent of black males in Alabama were disfranchised by felony convictions, according to the independent criminal justice policy group The Sentencing Project (Southern Changes, Fall 2000).

In the 2001 legislative session, Secretary of State Jim Bennett was primarily concerned with the expansion of absentee voting and anti-fraud measures, such as voter identification at the polls. Chuck Grainger, general counsel for Bennett, explained that Bennett is waiting for the federal government to set requirements for election equipment before making changes to Alabama’s election machines. “It would be foolish on our part, particularly having the lowest taxes in the country, to spend money on [updating election] systems before the federal government spends money on it themselves,” Grainger said.

Considering the overall political climate in the General Assembly, Jerome Gray, state field director of the ADC, is skeptical that real election reform legislation will pass in the next session. “I think it’s going to be tough to get something through,” he said. The ADC supports measures that will standardize voting equipment throughout the state.

Arkansas: New Laws Make Slight Improvements in Election Procedures

At the urging of Secretary of State Sharon Priest, Arkansas created a commission to study the state’s election system and made several minor changes to its election laws in the last session.

The Arkansas legislature adopted laws that will require two poll workers to be trained in every precinct before the 2002 election, all overseas military absentee ballots to be counted, and each county board of commissioners to tally the number of over-votes and under-votes in its precincts and report its findings to the state board of elections.

Democrats in the House of Representatives also introduced another new law that would require felons to provide the county clerk with evidence that they have

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completed their probation (as well as their sentence) and paid all their fees before they can register to vote. Previously, felons automatically had their rights restored after completing their sentence.

According to Priest, there was no organized opposition to election reform in the General Assembly, but there are some “fiscal issues” that may cause conflict if the election study commission makes funding recommendations as well as policy ones. Priest hopes the federal government will help pay for necessary improvements to the election system. “I think Congress will ultimately have some funding available,” she said.

The Secretary of State also emphasized the importance of expanding the number of early voting sites and their hours of operation. “I’m sick and tired of having to say, ‘I’m from the government and I’m here to help you, but only from 8:00 to 4:30,'” she said.

Florida: Reform Package Falls Short of Funding Equipment Upgrades

Florida’s election reform package–lauded by some as a comprehensive overhaul of the system that broke down last November–is being sharply criticized by others for its failure to fully fund equipment upgrades.

The new law requires that all of Florida’s counties begin using electronic voting equipment by 2002. Precinct-based optical scanners are the only machines that the Secretary of State has certified for that purpose. To install the new scanners, the legislature allocated $7,500 to counties with populations under 75,000, and $3,750 to more populous counties.

Ion Sancho, supervisor of elections in Leon County and a Democrat, says the legislation “is sort of biased against urban counties,” and does not believe $3,750 will be enough to cover the cost. Florida State Senator Bill Posey, a Republican co-sponsor of the election reform bill, explained that his committee decided to give twice as much money to the rural counties because it is more difficult for them to raise revenue. Posey said that some smaller counties have reached the state’s limit on property taxes, and therefore cannot raise taxes to generate funds for election reform. The larger counties have not reached the tax limit, and could raise taxes if they needed to. “[But] they really don’t have to,” he said. “It’s just a matter of priorities. You know, do you want to have new garbage trucks or do you want to have new voting equipment?”

Dan Hendrickson, an advocate with Florida’s Clean Elections Campaign, Sierra Club Florida Chapter, Florida Consumer Action Network, and Florida League of Conservation Voters, disagrees. “For [legislators] to say that they were funding the program is inappropriate,” he said. “They just threw some money at the problem because they had to.” County commissions have held a series of meetings on plans to raise additional revenue, he added.

Clay Roberts, Director of the Elections Division for Florida’s Secretary of State, said that when the legislation was being drafted, the election equipment vendors told him that the optical scan equipment would cost $7,500 per county. Now, however, he says the equipment vendors have increased their estimate of the costs “because there is money to be made.”

Several equipment firms are competing to be the suppliers of Florida’s new voting machines, and are looking to curry favor with the county boards of commissioners who will purchase the equipment. Election Systems Software (ESS), a voting equipment vender, recently agreed to pay the Florida Association of Counties half a percent of the total sales that ESS makes to counties provided the Association endorses the company and its equipment. Some have questioned this agreement. “The state association of election supervisors believes that the contract is unethical,” Sancho said. He explained that election supervisors are responsible for making recommendations to the board of county commissioners about what equipment should be purchased. In Sancho’s eyes, the deal between the Association of Counties and ESS creates a conflict of interest. He says he does not want the commissioners to make decisions to buy election equipment based on whether or not they are going to make a profit. To complicate the matter further, former Florida Secretary of State Sandra Mortham lobbies for both the Association of Counties and ESS.

Georgia: Overhaul of Voting Equipment Will Depend on Federal Funding

Georgia’s election reform package, heralded as one of the first in the country to require statewide uniform electronic voting equipment, may be a false promise unless federal funding becomes available to pay for the new equipment.

Secretary of State Cathy Cox has been pushing for reforms to improve the state’s voting systems for years. Kara Sinkule, a spokesperson for Cox, says that the fact that Georgia’s 94,681-ballot under-vote was higher than Florida’s in the 2000 election gave her a lobbying platform to get legislation passed this session. In addition,

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the Secretary of State’s office is the subject of an on-going lawsuit alleging that Georgia’s “fatally flawed” voting system disproportionately undercounts the votes of African Americans. In fact, a recent Southern Regional Council study found that 46 percent of black registered voters in Georgia live in counties that use punch card ballots, the least reliable voting system, while only 25 percent of white voters live in punch card counties. (Southern Changes, Spring 2001).

Senate Bill 213, enacted in the 2001 legislative session, was crafted by Secretary Cox and sponsored by Senator Jack Hill. The bill creates the Twenty-First Century Voting Commission; sets up a pilot project to test different electronic voting machines; and authorizes the Secretary of State to remove deceased voters from the rolls. It also conditionally requires uniform equipment across the state by 2004 if the General Assembly supplies the funding. The bill, however, fails to appropriate any money beyond $200,000 to fund the pilot project this fall.

This failure to provide funding has drawn sharp criticism from voting rights advocates. “[The bill] essentially made no commitment to do anything,” Neil Bradley, a lawyer with Southern Regional ACLU’s Voting Rights Project, said. “The legislators didn’t promise to appropriate any money so everything is essentially unresolved.”

Sinkule says that during the next legislative session Cox will make an initial request of $5 million to begin studying the results of the project and making equipment changes. Depending on whether the Voting Commission decides to buy or lease the machines, Sinkule estimates that “anywhere from $30 to $100 million” will be needed to provide new equipment for the entire state. Cox is “very confident” that the state will contribute some of that amount, Sinkule says, but is counting on the federal government to make up the difference in matching funds. Since President Bush has not approved any federal funding for election reform though, Bradley doubts that Congress will give Georgia enough funds to cover the equipment costs. “I suspect they won’t get nearly the amount of money that will be needed to purchase a good system,” he said.

Kentucky: Short Session, Tight Budget, and Local Resistance Block Reform

A short legislative session, budget concerns, and strong resistance from local election officials blocked the passage of major election reform legislation in Kentucky, but a new law was passed to simplify the application process for ex-felons trying to regain their voting rights.

The Kentucky constitution provides that an ex-felon’s voting rights can be restored only by gubernatorial action. The process of applying for a gubernatorial pardon is, however, a complicated one. The new law, sponsored by Representative Jesse Crenshaw, is intended to make the process easier. “There certainly are glitches in that process,” bill-supporter Senator Gerald Neal said. “So this is to streamline it.”

Neal says that the rest of the election reform legislation did not pass because it was introduced during a short session (thirty days rather then sixty), and because “there was a tremendous amount of political wrangling that was going on” between the Republican Senate and the Democratic House. The major election reform bill that was proposed by the Secretary of State did not win the backing of the House and Senate leadership.

“During this legislative session, Kentucky was looking at a severe budget shortfall,” said Secretary of State John Brown, whose failed omnibus election bill would have replaced the state’s lever voting machines with electronic ones. “It was decided that no new projects would be funded outside of the areas of education and healthcare.”

Brown also noted that the extremely powerful county clerk lobby opposed the election reform bill, because the clerks in the state’s eight counties with lever machines did not want to upgrade their systems. “They’re comfortable with what they have,” Brown said. Lever machines are still used primarily in small, rural, poorer counties.

Brown believes that legislation he proposed to combat absentee ballot voter fraud will win more support in the next session than other reform proposals because it does not require funding. “Legislation like that has a much better chance of passing in 2002 than the purchase of voting equipment, unless there’s going to be federal money available for that,” he said.

Louisiana: Attempts to Broaden Franchise Stall in Legislature

Although Louisiana passed an omnibus bill making minor changes to its already uniform statewide system of elections, no significant election reform measures passed this session. Attempts were made, however, to enfranchise ex-felons and increase opportunities for absentee voting.

Representative Elcie Guillory and Senator Cleo Fields, both

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Democrats and members of the Legislative Black Caucus, introduced two bills that would have enhanced the voting rights of ex-felons. Guillory’s proposal would have allowed people on probation for a first-time drug offense to vote. Fields’s proposal would have required that felons who had finished serving their prison time be notified in writing that they could register to vote again. Neither bill advanced out of the House.

Meanwhile, Republican Representative Kay Kellogg Katz introduced a bill that would have removed the eligibility requirements for absentee voting and added two more days to the absentee voting period, but would have slightly reduced polling hours on election day. Currently, Louisiana polls are open for fourteen hours on Election Day. The bill would have reduced the number of hours to twelve. Dan Garrett, counsel for the Louisiana House Governmental Affairs Committee, said the extension of no-excuse absentee voting days was the Committee’s way of allowing early voting and compensating for the decrease in polling hours. “We have more hours than anyone,” Garrett said, “And that was creating problems with poll workers.”

That bill, which the state ACLU supported because of the absentee clause but opposed the reduced polling hours provision, came close to passing. According to Michael Malec of the Louisiana ACLU, it died on the Senate floor “because they ran out of time.”

Louisiana has electronic or mechanical voting machines in every district, so upgrading machinery was not a priority for legislators in the last session. “The only thing we currently use paper [punch card ballots] for is absentee ballots and they are being phased out,” Garrett said.

According to Malec, Louisiana has “probably one of the most sophisticated and expensive voting systems in the U.S.,” thanks to Former Election Commissioner Jerry Fowler, who was sent to jail last year for inflating the price of voting machines.

Mississippi: Task Force Plans Reforms Next Session

The Mississippi legislature did not enact any major election reforms during the 2001 session. In late June, Mississippi Secretary of State Eric Clark convened an election reform task force that will make recommendations for changes to the election code. It is intended that the Commission will make recommendations for legislation to be introduced in next year’s General Assembly.

The Task Force on Elections, Procedure, and Technology will look at issues relating to voting machines, voter roll maintenance, ballot design, and the reporting of election returns. “We hope to move toward a more uniform [election] system,” David Blount, the Secretary of State’s Communications Director, said. The Task Force will make its recommendations to the legislature by December 1, 2001.

More than sixty election bills representing Republican and Democratic agendas were introduced in the 2001 session, including a requirement for proof of voter identification at the polls, a ban on punch card ballots, and a proposal for no-excuse absentee voting. All of the substantive bills died in committee and only six of the most modest bills passed.

“Basically you have…a legislature that does not lend itself to much change,” said Representative David Gibbs, a Democrat whose bills allowing no-excuse absentee voting and requiring absentee ballots to be mailed automatically to voters over sixty-five both died in House committees. Blount said more substantive legislation was not proposed or passed because the legislative session began in January, barely a month after the Florida election results were finalized. He says this did not give legislators enough time to draft legislation on the complex issues involved in election reform. While most other states in the South convened their legislative sessions in January as well, Mississippi legislators have only two weeks in which to prepare bills (known as pre-filing), compared to the one to two months of pre-filing in other states.

Of the laws that did pass the General Assembly, the most significant one changes the way county election commissioners are paid and is intended to address the issue of inaccurate voter rolls. “We do have a serious problem in Mississippi with inflated and inaccurate voter rolls,” Blount said. “We’ve got many counties in which there are more registered voters than there are people over the age of eighteen.”

County election commissioners are responsible for maintaining voter registration records. Under previous Mississippi law, commissioners were paid based on the number of names on the voter rolls, which may have been an incentive to inflate the rolls. Under the new law, they will be paid based on the population of their county.

Another new law puts an “Election Integrity Assurance” committee in each congressional district to help ensure that local party executive committees conduct party primaries properly. A bill was also enacted that is designed to enhance voting opportunities for high school

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students by sending registrars to schools and providing students with mail-in voter registration forms.

While the state did not even consider legislation funding new voting equipment, the Jackson Clarion-Ledger reports that DeSoto County is currently seeking U.S. Justice Department approval for a $250,000 optical scanner voting system that officials hope will replace their punch card system by June 2002.

North Carolina: Lack of Funding Weakens Reform

The primary roadblock to significant election reform in North Carolina was the state’s enormous budget deficit, which left the Board of Elections severely under-funded. “Our number one problem is lack of money to update our election system,” Board of Elections General Counsel Don Wright said.

The General Assembly passed a bill, proposed by Democrat G. Wayne Goodwin, outlawing the use of butterfly and punch-card ballots. However, according to Chris Heagarty of the North Carolina Center for Voter Education, North Carolina does not currently use butterfly ballots, and only eight counties use punch card ballots.

Heagarty doubts that those counties will be able to eliminate punch card ballots without financial assistance. “The big issue here,” he said, “was that some of the counties that use them don’t have the funds to switch to updated machinery.”

Since the General Assembly did not want to take responsibility for the cost of new equipment, they wrote a loophole into the bill they passed. “It does outlaw the punch card ballot, except in those counties that currently use them,” added Heagarty.

A bill sponsored by Democratic Representative Marvin Lucas and passed late in the legislative session will require ballot instructions to be printed in Spanish as well as English in counties with a Hispanic population of more than 6 percent.

Senate Republican Robert Rucho proposed the “Fair Election Act” that would shorten the early voting period and require voters to present identification for early voting. This bill was referred to committee and did not come up for a vote. Democrat Wib Gulley introduced two “Election Rewrite” bills that would help standardize election procedures such as recounts, protests, ballot content, and certification. Both bills stalled in committee. Heagarty believes, however, that even if enacted, none of these bills will achieve much systematic reform.

South Carolina: No Major Reforms Pass; New Laws Encourage Participation

The South Carolina General Assembly failed to pass any significant reform of the state’s election laws. The General Assembly did, however, enact laws in the 2001 session that will improve absentee voting methods and allow high school students to assist poll workers. None of these reforms require the state to provide extra funding for equipment or training, but are intended to encourage voter participation.

Absentee balloting is a growing concern for voters in South Carolina, according to John Rouff of the consumer organization South Carolina Fair Share. In some counties, he said, 10 percent of voters are voting absentee, particularly in places where the majority of the population works far away from home. Democratic Senators Robert Ford and Luke Rankin proposed a no-excuse absentee voting bill in the last session that would have removed all restrictions regarding who is allowed to vote using absentee ballots. Currently, there is a list of acceptable legal reasons for why a voter cannot vote at the assigned poll on election day. The bill did not pass and those restrictions on who can vote absentee remain.

While the limitations on who may cast an absentee ballot were not changed, the methods by which such a ballot may be cast were broadened. Republican Senator Larry Martin proposed a successful bill that will allow walk-in absentee voters to use voting machines instead of paper ballots. “We’re hoping that it’ll make voting a little faster,” Deputy Director of the South Carolina Election Commission Donna Royson said. Republicans control both houses of the South Carolina General Assembly.

Other important legislation introduced during the 2001 legislative session would have repealed the voting rights of convicted felons and required them to wait fifteen years after completing their sentence to appeal for a restoration of voting rights. Currently, felons in South Carolina can have their voting rights restored upon completing their sentence. The bill, sponsored by Republicans John Graham Altman, III, and Ronald Fleming, passed the House but has not been adopted by the Senate. According to Rouff, the failed bill could have had devastating effects on minority power and should be watched closely. Although it will not pass into the next session, it may be attached to future bills.

Another piece of legislation that failed to pass would have enacted laws to combine all off-year elections into one general election and set guidelines for hand counts

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of ballots in the case of voting machinery malfunctions. It also would punish losing candidates who protested an election on any ground other than the disparity between the number of ballots cast and the number of votes counted if the board hearing the protest determines that the protest is frivolous and without merit.

Tennessee: Budget Crisis Takes Precedence Over Election Reform

After a budget crisis led to “one of the longest legislative sessions in recent history,” the Tennessee legislature came close to passing a bill that would have set standards for counting punch card ballots and required the state election commission to approve the purchase of all voting machines.

The Democratic election reform bill passed the Senate in May in a vote strictly divided along partisan lines, and was amended and accepted by the Democrat-controlled House, but the Senate did not approve the House amendments before the session ended July 12.

“I don’t think there was any real hesitation to pass the amendments in the Senate that passed the House…it just didn’t get done,” State Coordinator of Elections Brook Thompson said. “I expect that it will pass in January.”

Twenty-one counties in Tennessee use punch card ballots, Thompson said, consequently the legislature did not seriously consider proposals to ban the ballots completely because the state did not have enough money to replace them with new voting systems. The “2000 Presidential Election Debacle Reform Bill of 2001” would have established standards for manual recounts of ballots with hanging chads, but did not outlaw punch card ballots. Legislators were busy trying to reach an agreement on how to solve the state’s budget crisis, and could not afford to consider legislation that would have required additional funding. “We’re having severe budgetary problems in Tennessee so there was not a lot of money floating around for things like voting machines,” Thompson said.

The budget that the General Assembly finally passed “puts lawmakers more than $200 million in the red” for next year, according to the Nashville newspaper, the Tennessean. “Tennessee has almost complete reliance on sales tax for revenue,” explained Erik Cole, Executive Director of the consumer and environmental watchdog group Tennessee Citizen Action (TCA). “We don’t have an income tax. So the last three years have seen a severe budget crisis every year because revenues have not kept up with expenditures.”

TCA was particularly concerned about the “Motor Voter” program, which is the process by which people can register to vote when they apply for a driver’s license. When applicants checked off a box on their driver’s license form indicating they wanted to register to vote, they were supposed to receive a registration form that they could take home and mail in later. Many voters, however, thought they were registering to vote when they checked off the box, and either never received or never mailed in their voter registration form.

According to Cole, at least two-thousand people reported to the state that they thought they had registered through motor voter but were not allowed to vote when they went to the polls. Many voter registration forms were lost and Cole thinks the Department of Safety may have been responsible for not passing the paperwork on to the elections commission. But Thompson and the Safety Department disagree. “I do not think that was the cause of the problems we had last November,” Thompson said.

After holding hearings in the fall, the Safety Department has decided to have voters fill out their registration forms in the driver’s license station. “They’ll be no opportunity for the voter to take that form home with them, so it won’t get lost in the shuffle,” Thompson said. Some registration information will also be transmitted electronically to the election commission.

Another source of voter confusion was polling place, especially for voters who had recently moved to a new precinct. “People would show up at one place,” Cole said “and be told ‘No, you’re supposed to go to another one,’ without good advance notice.”

TCA also received telephone calls from voters in majority-minority districts who said they were asked to show multiple forms of identification at the polls, in violation of state law. Thompson was not aware of those reports. Although Thompson admits that there were problems with the “Motor Voter” program and voters were confused about which precinct they should vote in, no legislation was introduced this session to address those issues. Cole says TCA did not push for it either, because they were concentrating on other issues, but he has “a whole plateful” of things that he is planning to propose next year. “My guess,” Thompson said, “is we will continue to talk about that and see what can be done [in the] next legislative session.”

Texas: New Laws Phase Out Punch Cards, Evenly Distribute New Voting Machines

In the 2001 legislative session, Texas agreed to phase out punch card ballots, distribute new voting equipment equitably among its counties, and update its voter registration rolls more frequently.

According to Will Harrell, Executive Director of the Texas ACLU, Texans were “genuinely humiliated” by

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what happened in Florida, and more substantial legislation may have been passed had election reform not become a partisan issue. “It was so clear that it was a Democratic agenda,” he said. “To accept these reforms in Texas is to admit that there was a problem in Florida, which the [Republican] party did not want to do.”

One of the more positive bills in Harrell’s eyes insures the even distribution of new voting equipment among affluent white districts and poorer communities of color. Currently, Texas has the same equipment disparities that were a problem in Florida, with punch card ballots mainly in poorer counties. According to Secretary of State Henry Cueller’s office, punch card counties had the highest over- and under-votes in the state in the November election.

To fully remedy the problem, Harrell recommends an “equitable distribution of resources at polling places, not just with regards to equipment use but also with regards to the professionalism and training of the people who staff those places.” Harrell was disappointed that punch card ballots were not outlawed as had been originally proposed in Representative Dale Tillery’s bill . Harrell said Tillery withdrew his bill because Tillery thought other legislators would never agree to shoulder the costs associated with the elimination and replacement of the machines. The new law simply states that no new punch card ballot machines may be purchased.

Secretary of State Henry Cueller says his office conservatively estimated that it would cost at least $25 million to eliminate punch card machines. Cueller spoke with legislators about grants and other ways of funding the ban, but “Since money was tight, the legislature decided not to put any money [in]to getting rid of the punch cards.”

Cueller was happy with the bills that passed. “The legislature was pretty responsive to what we wanted here,” he said. The Secretary was primarily concerned with updating the process of maintaining accurate voter registration lists. His office proposed a new law that passed this session requiring the Secretary’s office to be in weekly contact with the counties who are compiling the lists, in order to weed out duplicate voters, deceased voters, and possible felons. Another new law requires the Secretary to verify the voter registration lists that are compiled by private companies.

Virginia: Budget Impasse and Lack of Political Incentive Prevent Reform

A tight budget, an unwilling legislature, and a State Board of Elections reluctant to admit there are flaws in the system combined forces to prevent Virginia from reforming its election system this year.

Thirty-six laws regarding voting and elections were enacted by the General Assembly this year, but the laws dealt primarily with procedures for absentee voting and only a few created notable changes in the election system. The only significant expansion of voting opportunities that the legislature approved this session applies to voters who work long hours and cannot make it to the polls. Virginia law has a provision that allows voters to use an absentee ballot if they work eleven of the thirteen hours that the polls are open. Republican Delegate Michele McQuigg proposed a bill that expanded that provision to include commuting time in the eleven hours of work, thus enabling more voters to qualify for an absentee ballot.

Lawmakers also created a subcommittee to study the state’s election process and voting technology; enacted a law requiring the State Board of Elections to recommend standards for recount procedures by December 1, 2001;

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and outlined standards for recounting only those punch card ballots that are rejected by counting machines. Under the new laws, electronic voting machines are required, if possible, to tabulate under- and over-votes. The law provides that only the ballots on which the voter chose too few or too many candidates may be examined in a recount and, when performing a recount, at least two corners of the chad must be dislodged from the card for the vote to count. Currently, seven of Virginia’s largest voting localities–out of a total of 135 localities–use punch card ballots.

The General Assembly also passed a law stating that presidential electors are now “required” rather than “expected” to vote for the candidates of the political party or petitioners that selected them. Proposals to require uniform voting equipment throughout the state and to simplify the process of restoring voting rights to ex-felons, however, did not even garner enough support to be brought to a floor vote.

“There’s not a significant constituency in the Virginia General Assembly that cares about registration and voting of low-income people and minorities,” Kent Willis, Executive Director of the ACLU of Virginia, said. “Because of that, Virginia is not going to be a leader in election reform law.”

Rosanna Bencoach, Policy Manager for the State Board of Elections, is not advocating major reform. “I don’t think the election system in Virginia needs overhauling,” she said. “I think it works pretty well.”

One of the reasons that legislation requiring state funding to update election equipment did not pass was a budget disagreement between the Senate and Governor James S. Gilmore, III. Gilmore campaigned in 1997 on a promise to repeal Virginia’s car tax, but this year the Senate did not want to continue phasing out the tax, and could not reach an agreement with Gilmore, or the House members that supported him. After what the Washington Post called “an unprecedented budget impasse,” no amendments were made to the budget this year, Bencoach said. “It ended up with a lot of things getting cut in the budget in order for the governor to continue his phase-out,” Willis said.

Lisa Rab is a journalism student at Emory University in Atlanta. This article contains information contributed by Catherine Wall.

Felon Disfranchisement Bars Many from Voting

By Lisa Rab

Vol. 23, No. 2, 2001 pp. 22-25

More than 200,000 people could not vote in Florida’s presidential election last year because of laws barring ex-felons from voting. Similar laws across the country prevented 1.4 million people from casting their ballots, according to data compiled by the Sentencing Project, an independent criminal justice policy group.

Every state in the South prohibits people currently imprisoned for a felony from voting, and all except for Louisiana disfranchise people on probation and parole. Most states make it nearly impossible for felons to regain their voting rights after they have served their time; in Alabama, Florida, and Kentucky they are disfranchised for life unless they receive a pardon from the governor.

Because of the racial make-up of the convicted felon population in the U.S., these laws disproportionately disfranchise African Americans. The result, according to the Sentencing Project, is that 17.5 percent of black males in the South did not have the right to vote in 1998.

Florida has more disfranchised ex-felons than any state in the nation. But activists were concerned about the voting rights of felons long before the November election exposed the disfranchisement of thousands of Floridians. In 1998, the Sentencing Project and Human Rights Watch published a report together on “The Impact of Felony Disfranchisement Laws in the United States.” In September 2000, two months before the election, the Brennan Center for Justice at NYU and the Lawyer’s Committee for Civil Rights Under Law filed a suit in the U.S. District Court of the Southern District of Florida challenging the constitutionality of laws that disfranchise ex-felons.

Florida’s haphazard purging of the voter registration rolls–which disfranchised many people who were listed incorrectly as felons–attracted national media attention to the issue. Taking advantage of the heightened public awareness, legislators all over the South introduced a flurry of bills to restore the voting rights of felons. But their efforts were rarely successful. The bills that did pass achieved only minor procedural changes to the complex process of applying for a restoration of voting rights.

A Complex Process

The process for regaining voting rights varies from state to state, but it is always complicated and seldom explained to former felons. In Florida, for example, ex-felons must apply to the Office of Executive Clemency, which then makes a recommendation to the governor and the partisan cabinet. It is a high level process involving a lot of paperwork that takes “at least six months, if you’re persistent,” according Leon County Supervisor of Elections Ion Sancho.

Florida, like many other states, requires that ex-felons be informed about this application process, but “that’s simply not the case” in reality, Sancho says. Felons are allowed to apply for the restoration of their rights immediately upon completion of their sentence, and the Department of Corrections is supposed to provide them with the necessary paperwork to begin the process, but Sancho says the Department does not do that. The ACLU recently filed a suit contending that the Florida Department of Corrections is not fulfilling its obligation under current law to aid ex-felons in seeking clemency.

Slight Progress

Since the ban on voting rights for ex-felons is written in the constitution of many states, it is a difficult law for legislators to change. Instead of trying to amend the constitution to automatically restore voting rights, they often choose to make smaller changes to the election code that will make the restoration process easier.

Of the Southern states in the last session, only Kentucky passed legislation that is intended to facilitate the process ex-felons go through when applying to have their voting rights restored.

Kentucky’s constitution dictates that felons can only regain their voting rights through gubernatorial action. The General Assembly, however, passed a law this year that is intended to simplify and streamline the process of applying for a gubernatorial pardon.

“It made it easier to get to the governor’s desk so the governor can act,” says State Senator Gerald Neal.

The Arkansas constitution allows felons to regain their voting rights upon completion of their sentence (including jail time, probation, and parole). The legislature, however, passed a law this year that requires applicants to provide the county clerk with evidence that they have completed their sentence, their probation, and paid all their fees before they can register to vote.

Georgia, North Carolina, and South Carolina currently restore the voting rights of felons after they have completed their sentences, without requiring a waiting period. Of the remaining Southern states, four introduced progressive legislation this session that failed to pass. Three states, including South Carolina, introduced legislation that would have further restricted felons’ rights.

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Tennessee did not introduce any legislation in 2001 regarding the voting rights of felons.

Strategies for Restoration

For years without success, African-American activist groups and sympathetic legislators in Alabama have been introducing legislation to help restore the voting rights of felons, . Currently, ex-felons must apply to have their rights restored by the State Board of Pardons and Paroles, and are required to provide a DNA sample to the state Department of Forensics as part of the application process. According to the Sentencing Project, 31 percent of black males in Alabama were disfranchised by felony convictions in 1998.

This year, voting rights advocates developed a different strategy for pushing ex-felon enfranchisement legislation through the Alabama General Assembly. They introduced a bill that would have restored the voting rights of felons who had completed their sentence, and moved it through the House with a Republican bill that would have required voters to show some form of identification at the polls. The two bills moved together in order to gain bipartisan support for two issues that usually split legislators along party lines. Both bills passed the House, but died because the Senate did not act on them before the session ended.

In Virginia, Democrats introduced three bills that would have simplified what Kent Willis, Executive Director of the ACLU of Virginia calls, “One of the most, if not the most, difficult procedures for restoration of voting rights in the nation.”

Virginia, like Kentucky, has a constitutional provision that gives the governor the final say in restoring voting rights. For the last five or six years, Willis says, legislators have been introducing bills to make the process of obtaining the governor’s approval easier, but none of them were given serious consideration until last year. In 2000, the General Assembly passed a law allowing certain ex-felons to apply to the circuit court for the restoration of their voting rights five years after completing their sentence; felony drug offenders must wait seven years to apply. The circuit court option is an alternative for those who would rather go through the courts than the governor’s office, but all court decisions are still subject to the governor’s approval.

That procedural reform indicated an important change in the largely conservative General Assembly’s attitude toward the issue of ex-felons voting. “The fact that last

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year there was a bill that passed was very good news,” says Willis.

Legislators introduced three bills this year that would have further simplified the restoration process, and although none of them passed, they did win substantial support. “Compared to four or five years ago,” observes Willis, “when these bills would get passed by…people are talking about the issue and the bills are garnering some votes.”

Rosanna Bencoach, policy manager for the Virginia State Board of Elections, explains that the process of getting voting rights restored is time consuming. After waiting a certain number of years before applying, the ex-felon must then provide letters of recommendation, a letter from the probation officer, and a copy of the court record to the governor. “But it’s not a difficult process if you understand it.”

Willis, however, says the process is so complicated he does not understand it himself. He thinks the only way to really simplify the process is to restore voting rights automatically, without gubernatorial approval. “The big hump will be when legislators are willing to address the constitutional issue. When that happens there’s a chance for dramatic reform–but that’s probably many years down the road.”

Moving Backwards

Some Southern states considered legislation in the last session that would have worsened the situation for ex-felons.

One of the most extreme examples was in Mississippi, where legislators introduced House and Senate bills that would have denied all felons the right to vote unconditionally for the rest of their lives. Neither bill made it out of committee. In 1998, the Sentencing Project found that 28.6 percent of black males in Mississippi were disfranchised by laws that prohibit anyone ever convicted of crimes such as theft, murder, forgery, and rape from voting. Currently, people who commit those crimes can petition the legislature to have their voting rights restored after they’ve served their time.

A similar bill that would have disfranchised felons for life was introduced in Texas, but stalled in a House subcommittee. Since 1997, Texas law has restored the voting rights of felons after completion of their sentence. Prior to that time, they were required to wait five years after completing their sentence before applying to have their rights restored.

In South Carolina, felons currently regain their voting rights after sentence completion, but a bill was introduced this year that would require them to wait fifteen years after completing their sentence to regain the vote, unless they were pardoned. According to Donna Royson, deputy director of the South Carolina Election Commission, candidates who are ex-felons have to wait fifteen years before they can run for political office. The bill passed the House and was on the contested calendar in the Senate when the session ended.

Political Resistance

According to the Brennan Center, 4.6 percent of Florida’s voting age population cannot vote because of the felon disfranchisement law, and at least one in four black men is unable to vote due to a current or past conviction.

The voting ban for ex-felons is part of Florida’s constitution, as it is in Kentucky and Virginia. In the 2001 session, two separate bills were proposed in the Florida legislature regarding felons’ voting rights. One bill was an amendment to take the ban out of the constitution and allow statutes to be passed restoring the voting rights of felons. The other bill was the actual statute that would have restored the voting rights of felons who had served their time.

A provision that would have restored voting rights

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to felons was also originally included in the Senate version of the major election reform bill that the Florida legislature passed in May. Senator Bill Posey, a Republican sponsor of that bill, explained that the provision could not have been implemented if the constitutional amendment bill failed to pass, because it was only a statute. So, when he saw that the constitutional amendment was not going to pass the House, he saw no reason keep the provision in his bill. It was dropped in conference committee negotiations with the House.

To Sancho, a Democrat, the reason that amendment and the other felon bills did not pass the Florida General Assembly this year is simple. “The Republicans don’t want to broaden the franchise.”

Since nine out of ten African-American voters chose the Democratic candidate on the ballot last November, Sancho thinks Republican resistance to restoring the voting rights of felons is “probably political more than anything else.” Florida’s House, Senate, and Governor’s office are all Republican-controlled.

Florida’s prohibition of voting rights for ex-felons was adopted three years after the Civil War, the Brennan Center says, as “one of many Reconstruction-era tactics to undermine the political power of ex-slaves.” This was the case in other states as well. Mississippi’s provision regarding the voting rights of criminals, from its 1890 Constitution, was intended to discriminate against black felons, as was Alabama’s provision from 1901.

In their lawsuit, the Brennan Center argues that because of its discriminatory intent and effect, Florida’s law violates the Equal Protection Clause of the Fourtheenth Amendment and the Voting Rights Act.

“As much as we want to believe that institutionalized racial discrimination is in our past, that’s not true,” Nancy Northrup, Director of the Brennan Center’s Democracy Program, says. “More work must be done to ensure full democratic rights for all our citizens.

Lisa Rab is a journalism student at Emory University in Atlanta.