by Bill Barton

During an Iowa event in March 2019, U.S. Senator and presidential hopeful Elizabeth Warren spoke about felon disenfranchisement, saying that while giving former felons the right to vote is the correct thing to do, extending that right to prisoners is “something that we could have more conversation about.”

“Once someone pays their debt to society, they’re out there expected to pay taxes, expected to abide by the law, they’re expected to support themselves and their families,” Warren noted. “I think that means they’ve got a right to vote. While they’re still incarcerated, I think it’s a different question.”

South Bend, Indiana mayor Pete Buttegieg, another Democrat running for president, agreed that “when you are convicted of a crime and you’re incarcerated ... you lose certain rights; you lose your freedom. And I think during that period, it does not make sense to have an exception for the right to vote.”

But in an opinion piece in The New York Times, Jamelle Bouie asked, “Why not let prisoners vote – and give the franchise to the roughly 1.5 million people sitting in federal and state prisons? Why must supposedly universal adult suffrage exclude people convicted of crimes?”

As precedent for the idea, Bouie observed that “California allows voting for those in county jails (with limited exceptions). Colorado does, too. New York recently allowed those on parole or probation to vote. And two states, Maine and Vermont, already let prisoners vote.”

“In my state,” added Bernie Sanders, the U.S. Senator from Vermont who is also running for the Democratic presidential nomination, “what we do is separate. You’re paying a price, you committed a crime, you’re in jail. That’s bad. But you’re still living in American society, and you have a right to vote. I believe in that, yes I do.”

Restoring voting rights to former felons was supported by nearly 68 percent of those who responded to a March 2018 poll by HuffPost and YouGov. But according to the Washington, D.C.-based Sentencing Project, disenfranchisement laws prevented around 6.1 million Americans from voting during the 2016 election cycle.

In Trop v. Dulles, 356 U.S. 86 (1958), the U.S. Supreme Court considered the rights of a military deserter. Chief Justice Earl Warren wrote for the majority that citizenship “is not a right that expires upon misbehavior,” and the Court held it was unconstitutional to revoke citizenship as a punishment for crime.

In other democratic nations, the right to vote is rarely revoked permanently, and even in countries with some form of mandatory disenfranchisement, it exists only for specific crimes and there is almost always judicial discretion.

Felon disenfranchisement laws in America can be traced back to the ancient concept of “civil death” – that some crimes are so severe they effectively snuff out citizenship rights. Such laws in the South were enacted during the Jim Crow era, to limit political involvement by freed slaves during the late 19^th century.

In The New Jim Crow, author Michelle Alexander wrote that “we use our criminal justice system to label people of color ‘criminals’ and then engage in all the practices we supposedly left behind,” making it “perfectly legal to discriminate against criminals in nearly all the ways that it was once legal to discriminate against African Americans.”

But even as restoring voting rights for former felons gains broader support, extending the franchise to those who are still incarcerated has not caught on. Recent polling by The Hill and HarrisX, a market research firm,found opposition to the idea from 69 percent of registered voters, including 61 percent of registered Democrats. Senator Warren’s home state of Massachusetts, which previously allowed prisoners to vote, repealed that right in a 2000 constitutional amendment.

Other than Senator Bernie Sanders, none of the front-runners for the Democratic presidential nomination have been willing to publicly support voting rights for prisoners. Like Buttegieg, U.S. Senator and former prosecutor Kamala D. Harris has staked out a position similar to Warren’s – in favor of re-enfranchising former felons but not for allowing people who are currently incarcerated to vote. Fellow presidential candidate U.S. Senator Cory Booker has also expressed support for restoring ex-felons’ voting rights, including, potentially, for nonviolent offenders while they are incarcerated.

The controversy is further fueled by the fact that “there’s some scholarly debate about whether Congress even has the power to end felony disenfranchisement at the federal level,” German Lopez, writing for Vox.com, pointed out. He added, “65 percent of Americans disagree with Sander’s statement that all prisoners, including ‘terrible people’ like the Boston Marathon bomber should be allowed to vote.”

An email to supporters from the Republican National Committee put it more succinctly: “The Boston Marathon Bomber killed three people and injured 280 more. Bernie’s concern? That he gets his absentee ballot.”

In addition to Maine and Vermont, 13 other states have joined the District of Columbia as of 2018 to automatically restore voting rights to felons upon their release from prison, up from just nine states before new laws were enacted in New York, Louisiana and Nevada, and a Constitutional amendment was approved by Florida voters. [See: PLN, Oct. 2019, p.58].

“We spent years working with folks all over the state on our amendment language,” said Neil Volz, political director of the Florida Rights Restoration Coalition. “It was a reflection of what was supported by the people.”

Iowa, Kentucky and Virginia have made disenfranchisement permanent for ex-felons. Although Democratic governors in all three states rescinded felon voting bans through executive action – Iowa’s Tom Vilsack in 2005, Kentucky’s Steve Beshear in 2015 and Virginia’s Terry McAuliffe in 2016 – they were restored by Republican governors Terry Branstad in Iowa and Matt Bevin in Kentucky. A bill to amend the state constitution to allow former felons to vote in Virginia died in committee in January 2019.

New Mexico’s Democratic-controlled legislature flirted with enfranchising prisoners earlier this year, though the provision never made it to a vote. A similar bill was introduced in New Jersey in 2018 but stalled in committee. And on October 21, 2019, the ACLU filed suit in state court in Minnesota, challenging a law that prohibits felons from voting while they are on probation or parole. The lead plaintiff, Jennifer Schroeder, is serving a 40-year term of probation – which means she is unable to vote until 2053.

The disenfranchisement issue should see renewed interest and debate during the lead-up to the 2020 elections. Notably, Maine and Vermont serve as examples that allowing people to vote while incarcerated does not subvert the democratic process; rather, it ensures that everyone, including prisoners, are allowed to have a political voice. 

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Sources: nytimes.com, vox.com, npr.org, courthousenews.com, themarshallproject.org, commercialappeal.com, washingtonpost.com, huffpost.com

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