A federal district court judge looks at the history and impact of keeping prisoners from the polls

by Jayson Hawkins

In the aftermath of the 2020 election, legislatures across the nation responded to claims of election fraud by proposing a flurry of election laws that seem to be aimed at limiting access to the polls. Opponents insist these laws are not about election security but instead seek to disenfranchise people of color and the economically disadvantaged. Such efforts have a long history in America, and despite progress made against such laws in the twentieth century, one area of voter suppression has remained virtually untouched. Penal disenfranchisement laws bar people who have been convicted of a crime from voting and currently effect over six million Americans, more than any other election restriction.

Prison Legal News has been covering this topic regularly for several decades now, since its very first issue in 1990, providing updates and analysis on ending the practice of penal disenfranchisement. Earlier this year, a federal judge in the Eastern District of Wisconsin weighed in on the subject, off the bench. Lynn Adelman published his report, The Persistence of Penal Disenfranchisement: Suppressing Votes the Old Fashioned Way, in May 2021. Adelman has been a U.S. District Court judge in Wisconsin since December 1997 and prior to that served 20 years in the Wisconsin State Senate. What follows is a summary of his position on the matter.

As America debates the future shape of its elections, it might be time to examine these laws that disproportionately effect communities of color and serve no clearly demonstrable purpose. The laws that create penal disenfranchisement vary across America. This variation touches not only what crimes provide legal justification of disenfranchisement but also such factors as how long the disenfranchisement lasts and what processes must be completed to restore a person’s rights.

Up until 2020, only Iowa permanently disenfranchised all felons, but in that year the state changed its laws to restore voting rights once felons’ sentences were completed for all crimes except homicide. At the other extreme, Maine and Vermont allow prisoners to vote via absentee ballot. Most states fall somewhere between these two extremes, and many permit the restoration of voting rights after the completion of the disenfranchising sentence.

For the most part, restoration of the franchise is neither automatic nor easy. Some states require the payment of financial obligations related to conviction, such as fines, forfeitures, and restitution. A recent law in Florida that restored voting rights to some ex-felons was amended to require such payments, even though state courts have proven unable to identify how much many of these ex-felons owe or even which local jurisdictions they owe.

Court challenges to this part of the law have failed, and so nearly one in ten Floridians and one in five Black males in the state remain disenfranchised. Amendment 4, the ballot initiative that purported to enfranchise felons specifically excluded convicted murderers, sex offenders, felons on probation and parole as well as those who had not paid all fines, fees and restitution related to their sentences. Not surprisingly, vast numbers of convicted felon in Florida remain unable to vote. Other states may not impose such onerous requirements, but few automatically restore voting rights after a prisoner’s sentence is complete.

There are also roughly three quarters of a million prisoners at any given time who remain eligible to vote but are unable to do so for a variety of reasons. These prisoners are in jails and either unable to post bail or in jail for an offense that does not carry disenfranchisement.

For the most part, jail officials are reluctant to set up procedures that would allow prisoners to vote, and in many cases both officials and prisoners alike are unaware of how voting laws operate in that particular jurisdiction.

America’s status as an outlier in incarceration is mirrored when its relative position to other countries in terms of penal disenfranchisement is examined. No other nation on earth disenfranchises such a large portion of its population, and most first-world democracies only disenfranchise prisoners who have been convicted of election related offenses. Outside the U.S., penal disenfranchisement is employed mostly in countries where democracy is questionable or tenuous and instability is heightened by high incarceration rates, armed conflict and economic underdevelopment.

The logic of penal disenfranchisement is tightly bound up with three political ideologies that have strong roots in the American experience—liberalism, civic republicanism, and white supremacy. University of Vermont Professor Alec Ewald elaborated on this in an article for the Wisconsin Law Review, titled Civil Death: The Ideological Paradox of Criminal Disenfranchisement Law In The United States, published in 2002. Inspiration for that report, Ewald noted, came from the 2000 election, where 537 Florida votes decided a president in the state that barred hundreds of thousands from voting because of a felony conviction.

Today, Ewald teaches courses in constitutional law and American politics, and has written extensively on the “collateral consequences” of criminal-justice. He is author of The Way We Vote: The Local Dimension of American Suffrage (Vanderbilt University Press, 2009), and co-editor of Criminal Disenfranchisement in an International Perspective (Cambridge University Press, 2009). 

His “Civic Death” report explained liberalism as the concept of the social contract and the fact that a person’s violation of the terms of that contract automatically voided the right to a voice in the ongoing maintenance of the rule that govern society. Jean-Jacques Rousseau, John Locke, and John Stuart Mill all made arguments to this effect.

Civic republicanism, the political philosophy put forward by French theorist Montesquieu, emphasizes the role of citizens promoting the public good through the development of virtue. This ideology condoned disenfranchisement in order to protect society and political order from citizens who had demonstrated a lack of virtue.

White supremacy has historically been both the most insidious and effective underpinning of penal disenfranchisement. In the late nineteenth century, many states, especially in the former Confederacy, used penal disenfranchisement on top of poll taxes, literacy tests, and a variety of other means to ensure political impotence among the Black population.

These theories seem to ignore the class basis for enfranchisement which for many decades after the founding of the United States allowed only white male property owners to vote. Property ownership was the determining factor in voting, not good citizenship or civic virtue. Women of course did not gain the right to vote until the enactment of the Nineteenth Amendment in 1920, a full 144 years after the founding of the United States.

The place of these ideologies in the foundations of penal disenfranchisement has become philosophically untenable in the modern era. The modern social contract focuses more on the fundamental rights of the individual and the necessity of a compelling governmental interest in abridging those rights. Civic republicanism has shifted toward the idea that virtue is built by social participation instead of requiring that virtue before participation is allowed.

White supremacy has certainly not disappeared from American society, but it is no longer condoned as an overt justification for any public policy.

Despite this erosion of ideologica1 justification, penal disenfranchisement remains firmly entrenched in American law. Legal challenges to it have historically failed in the face of Section 2 of the Fourteenth Amendment to the U.S. Constitution which allows disenfranchisement for “participation in rebellion or other crime,” despite the fact that most constitutional scholars agree this phrase was directed at Confederate participants in the Civil War. Additionally, the popularity of penal disenfranchisement among large sections of the American voting public, especially on the right, creates dim prospects for widespread legislative change.

Yet the political resilience of penal disenfranchisement does not erase the consequences of this practice. Communities of color and the poor disproportionately feel these impacts. One out of every thirteen Black males are disenfranchised nationwide, and so a demographic that accounts for roughly 7% of the total population makes up 40% of the disenfranchised. There are less direct effects as well. Prisoners are counted by the census in the county where they are incarcerated rather than the community where they live yet cannot vote in either location.

The result is greater representation and resource allocation in the mostly white and rural areas that host prisons at the expense of urban communities that desperately need both.

As the nation debates the validity of recently proposed election laws and their potential impact on democracy, perhaps it is time to revisit long-standing practices that warp the availability of the most fundamental civil right in any free society. The concept of one person, one vote, remains as radical and elusive a concept in America today as it was in South Africa under the apartheid regime 30 years ago.

[Editor’s Note: HRDC opposed the Amendment 4 ballot initiative in Florida because of its discriminatory animus.] 

Source: “The Persistence of Penal Disenfranchisement,” by Lynn Adelman, papers.ssrn.com

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