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