JUSTICE DENIED

How Felony Disenfranchisement
Laws Undermine American
Democracy
Elizabeth Simson
John Kenneth Galbraith Fellow
March 2002

AMERICANS FOR DEMOCRATIC
ACTION EDUCATION FUND
1625 K Street, NW, Suite 210 • Washington, DC 20006
Phone (202 785-5980 • Fax (202) 785 5969
www.adaction.org • adaction@ix.netcom.com

Disenfranchisement is the harshest civil sanction imposed by a democratic society. When
brought beneath the axe, the disenfranchised is severed from the body politic and condemned
to the lowest form of citizenship, where voiceless at the ballot box . . . the disinherited must sit
idly by while others elect his civil leaders and while others choose the fiscal and governmental
policies which govern him and his family.
- Federal Judge Henry Wingate, McLaughlin v. City of Canton, 947 F. Supp. At 971 (S.D.
Miss. 1995)i

Men are so constituted that they derive their conviction of their own possibilities largely from
the estimate formed of them by others. If nothing is expected of a people, that people will find
it difficult to contradict that expectation. By depriving us suffrage, you affirm our incapacity to
form intelligent judgments respecting public measures.
- Frederick Douglassii

The right to vote is not only a sacred testament to the struggles of the past. It is an
indispensable weapon in our current arsenal of efforts to empower those who have
traditionally been left out.
- President William Jefferson Clintoniii

Without a vote, I am a ghost inhabiting a citizen’s space . . .
- Joe Loya, disenfranchised ex-feloniv

JUSTICE DENIED
How Felony Disenfranchisement Laws
Undermine American Democracy

Elizabeth Simson
John Kenneth Galbraith Fellow
March 2002

AMERICANS FOR DEMOCRATIC
ACTION EDUCATION FUND
1625 K Street, NW, Suite 210
Washington, DC 20006
Phone (202) 785-5980, Fax (202) 785-5969
www.adaction.org, adaction@ix.netcom.com

JUSTICE DENIED
How Felony Disenfranchisement Laws
Undermine American Democracy
TABLE OF CONTENTS

Executive Summary

v

I. The American Criminal Justice System and Voting Rights

1

II. A History of Exclusion: The Franchise in the United States

13

III. The Impact of Felony Disenfranchisement Laws

17

IV. Felony Disenfranchisement as a Political Cause

34

V. Current Progress on the Legislative Front

46

VI. Current Progress on the Judicial Front

58

VII. Felony Disenfranchisement’s Place in the American Agenda

66

Bibliography

70

Notes

76

EXECUTIVE SUMMARY
In the United States today, 4.2 million felons and ex-felons are stripped of the vote,
constituting a full 2.1 percent of the American voting-age population.
Felony
disenfranchisement is governed entirely on the state-level, which creates a web of uneven laws
with varying degrees of severity across the nation. In Maine and Vermont, for example, the
state imposes no voting restrictions upon felons, even allowing incarcerated felons to vote. In
the other forty-eight states and the District of Columbia, incarcerated felons cannot vote, with
many of these states further disenfranchising felons during parole or probation sentences. Most
harsh are the thirteen states that impose lifetime disenfranchisement on felons, permanently
denying ex-offenders the full restoration of their civil rights.
Felony disenfranchisement is inconsistent with our modern notions of a punitive system
which prioritizes rehabilitation over retribution. Denying already-marginalized individuals
their political voice undermines the very democratic ideals which the United States strives to
embody. And given the current crisis in our criminal justice system, with its ever-rising
incarceration rates due to conservative “tough on crime” policies, the impact of felony
disenfranchisement laws is profound.
Felony disenfranchisement laws themselves have their roots in the Jim Crow tradition
which produced poll taxes, literacy tests, and other racially-biased schemes for diluting black
voting power in the post-Reconstruction era. The 1965 Voting Rights Act mandated the end to
overtly discriminatory practices. However, without an explicit proclamation of a right to vote
in the United States Constitution, so-called “facially neutral” policies such as
disenfranchisement laws are constitutionally permissible.
Over 6.3 million individuals are enmeshed in our criminal justice system as incarcerated
felons, probationers, or parolees. According to Department of Justice data, black males have a
28.5 percent chance over their lifetimes of being convicted of a felony, much higher than for
any other demographic group. The disparately high number of black felons means that
currently 6.3 percent of the national black population is disenfranchised. Furthermore, in some
states the size of the incarcerated population skyrockets beyond this rate, a politically
significant occurrence given the electoral college system. Florida, for instance, has one of the
nation’s highest felon populations coupled with harsh disenfranchisement laws which penalize
ex-felons along with felons. To date, almost one in three black male Floridians has been
permanently barred from voting.
The repercussions of this large-scale disenfranchisement were felt in Election 2000,
when a mere 537 votes in Florida determined a victory for George W. Bush. Demographic
statistical data show that because of their likely race and socioeconomic statuses, the vast
majority of disenfranchised felons align themselves politically with the Democratic Party.
Among other lessons learned in the wake of the 2000 presidential election was the power of
every vote; this makes the fact that in Florida over 700,000 felons were unable to cast ballots
simply inexcusable.
v

In a nation newly awakened to the delicacy of the democratic system, felony
disenfranchisement laws have begun to fall under the spotlight of policymakers and the
national media. The efforts to abolish disenfranchisement laws, however, have been underway
for years. This issue has been addressed by various advocacy movements, including the prison
reform, social justice, civil rights, and voting reform struggles.
Activists in support of various causes have set out to influence policymakers and
educate the public about the injustice of felony disenfranchisement laws, albeit usually as a
small part of larger political campaigns. Federal legislators have responded in small numbers,
with four House bills introduced in the 107th Congress to date. Yet, questions have surfaced as
to the ability of the federal government to determine felony disenfranchisement policies; except
in cases of blatant discrimination, the states have jurisdiction over elections due to
Constitutional mandate. Law scholars disagree on whether felony disenfranchisement
constitutes a case of blatant discrimination which would trump the state’s right to govern voting
laws.
Active legislative efforts concerning felony disenfranchisement are underway on the
state-level as well. In some states where harsh laws have governed felons’ voting rights, these
laws are being relaxed giving larger numbers of felons and ex-felons the vote. In other states,
however, which have traditionally been lenient on such laws, a tide of conservatism has set into
motion increasing restrictions on felon voting. These conflicting trends on the state level
demonstrate the necessity for federal action if felony disenfranchisement is to ever be
effectively abolished.
In addition to legislative activity on the issue, attorneys have taken state felony
disenfranchisement laws to court. Utilizing evidence of historical discrimination and a
disparate impact, attorneys are challenging these laws under the Fifteenth Amendment and the
1965 Voting Rights Act. The most significant of such cases, which takes on Florida’s felon
disenfranchisement policy, is set to begin trial in March.
The legislative or judicial procedure of ending felony disenfranchisement is unmatched
in both its healing message and political effectiveness, for it can serve as the all-important first
step in forging a renewed relationship of mutual respect between the government and those
who feel oppressed by its policies.
As an issue, felony disenfranchisement stands at the intersection of many of the most
significant causes in the American political landscape. Establishing the right to vote for all
Americans should serve as one of the centerpieces of a new progressive political strategy which
promotes an inclusive egalitarian democracy through social justice initiatives. Felony
disenfranchisement laws are undemocratic and unjust in denying citizens their political voice.
And in doing so, these repugnant laws not only strip these citizens of legitimate selfempowerment, but make a mockery of those of us who have faith that our democratic system
can spawn a just society.
vi

I. THE AMERICAN CRIMINAL JUSTICE SYSTEM AND VOTING RIGHTS

CHAPTER I
The American Criminal Justice System and Voting Rights
For most Americans, felony disenfranchisement does not jump to mind as one of the
most pressing civil rights challenges facing our democracy today. In fact, many Americans do
not even know that the right to vote is stripped from incarcerated convicted felons in 48 states
and the District of Columbia, felons on parole in 32 states, felons on probation in 28 states, and
ex-felons who have completed their sentences in 13 states.v Due to the flourishing of harsh
criminal justice policies, incarceration rates have skyrocketed over the past 20 years,
particularly in communities of color. As a result, felony disenfranchisement rates have reached
a level warranting public alarm. The urgency of this issue was vividly illustrated by our most
recent presidential election, in which a mere 537 votes in the state of Florida decided the
victory for George W. Bush. As a point of reference, Florida’s disenfranchised felon and exfelon population dwarfs this margin of victory: on November 7, 2000, in Florida, 647,100
citizens were unable to cast a ballot due to felony disenfranchisement laws, 436,900 of whom
were ex-felons who had successfully completed their sentences.vi The numbers demonstrate
that this is a problem worth our careful examination before the next major election.
Even more important than the electoral consequences of this mass disenfranchisement is
the disillusionment of the individual felons, their families, and their communities. For these
individuals, America’s grand democratic experiment has failed to deliver its promise of citizen
empowerment. They have lost their most basic right as citizens of a democratic nation. Now is
the time to address this critical issue. It is one which weaves together the modern civil rights
struggle, the movement to strengthen our democracy through social justice initiatives, and the
efforts to promote humanitarian reforms in our criminal justice policies and incarceration
practices.

A. The Development of Felony Disenfranchisement Practices and Punishment
Theory
“Man is born free, and everywhere he is in chains.”vii The bondage to which Rousseau
referred in this oft-quoted line is the social contract of the body politic. In modern American

1

I. THE AMERICAN CRIMINAL JUSTICE SYSTEM AND VOTING RIGHTS

political society, criminal justice theory often stems from a sense of the “broken” social
contract. Invoked within this idea are notions of the perpetrator’s free will and his actions as a
violation of the public good.viii But what does it mean exactly to “break” the social contract?
Does this merely translate into breaking a law? According to social contract theory, every law
must necessarily exist for the express purpose of the public good. Given this, what are
repercussions if and when we determine that our democratic system creates laws which are not
necessarily in the best interest of society as a whole? Is breaking the law equivalent to
breaking the social contract then? As to the notion of free will, this assigns every person the
role of a free agent, putting him on equal footing with all of his fellow citizens in society. Yet,
can we truly declare our society a haven of true equality by each of its members, a place where
each individual has the capacity to act as a free agent? Or do we instead view our society as a
place where the circumstances of an individual’s birth, his race, his regional location, his socioeconomic status, and his gender, restrict the degree to which he can act as a free agent?
All of these, and many other questions, lead us to critically examine a criminal justice
system based upon the social contract. In the tradition of John Locke’s view that natural rights
are a “sanction” on the terms of the social contract, modern liberalism includes the notion that
there exist fundamental rights and liberties which a person cannot ever legitimately give away.
Thus, we must monitor our system of punishment, censoring those practices which violate
fundamental rights as simply too severe for our criminal justice system to legitimately inflict.ix
It is time to reevaluate our modern system of felony disenfranchisement laws, those
regulations which take the voting rights away from individuals who have committed felonies.
This practice has its roots in ancient Greece and Rome, where criminals were given “moral
censure” as part of their punishment.x By the Middle Ages, this practice had spread throughout
Europe, evolving into a physical banishment of criminals from society, in effect a “civil
death.”xi As this tradition traveled from Europe to the North American colonies, and later
became incorporated into the American democratic system, the notion of “civil death” easily
translated into exclusion from participation in the democratic system.xii In this way, today’s
felony disenfranchisement laws are a vestige of archaic justice systems.
The theoretical justifications for this form of criminal punishment begin with the broken
social contract. This necessarily hinges on the free will of the criminal and his choice to defy
the contractual agreement of his citizenship. And once this violation of the social contract is
established, there are various rationales for the ensuing punishment. Criminal justice attorneys
2

I. THE AMERICAN CRIMINAL JUSTICE SYSTEM AND VOTING RIGHTS

Howard Itzkowitz and Lauren Oldak have organized these rationales into four categories:
deterrence, rehabilitation, retribution, and incapacitation.
This first is a rationale based upon deterring further criminal activity in the society as a
whole. In this sense, the punishment is viewed as a preventative measure that promotes the
well-being of the society. The concept of deterrence is oftentimes used to rationalize the need
for harsh penalties for those who engage in illegal activity. Criminal justice studies have
demonstrated, however, that stiff penalties rarely deter future crime. There is no evidence that
felony disenfranchisement acts as an effective deterrent to would-be criminals. The threat of
incarceration or probation, both limitations on one’s physical liberty, constitute much more
plausible deterrents than the non-corporal restriction of disenfranchisement. Those states which
utilize harsh forms of felony disenfranchisement laws often have higher recidivism rates than
those states which utilize more lenient forms of disenfranchisement laws.xiii In this way, the
institution of felony disenfranchisement fails the test of effectively stymieing criminal activity.
Thus the punishment rationale of deterrence does not justify felony disenfranchisement laws.
A second rationale for punishment within the criminal justice system stems from the
desire to rehabilitate the offender. This rationale is based on benefits for both the offender and
his community, as the process of rehabilitating criminals will result in a safer living
environment for everyone. The very label of “correctional,” given to prison facilities and
government departments which coordinate incarceration activities, indicates the central role
that rehabilitation plays in American criminal justice theory.
Ironically, felony
disenfranchisement laws are entirely counterproductive to rehabilitating offenders.xiv
Excluding individuals who are incarcerated from the political society sends a message of
isolation and indifference, indicating the government’s lack of faith in individuals who may
already feel betrayed by the system. Gradually giving offenders increased responsibility and
ensuring that they feel part of a greater community is rehabilitative; taking away their right to
vote clearly is not.
A third rationale for punishment is retribution. The desire to seek revenge upon
criminals clearly defined earlier systems of punishment. In our modern system, however, we
realize the anti-rehabilitative nature of such medieval practices, and we frown upon vengeance
as morally reprehensible. Theories rationalizing retribution range from the desire to restore a
community’s “social equilibrium” to attempts to teach moral responsibility.xv In addition to the
moral questionability of these notions of revenge and the counterproductive nature of such
3

I. THE AMERICAN CRIMINAL JUSTICE SYSTEM AND VOTING RIGHTS

punishment in rehabilitating the offender, retribution as a rationale for punishment leads to
another complication. In the words of criminal theory scholar Michael Tonry:
Whatever the rationale, all retributive theories presume equal opportunities for all to
participate in society.
When some are prevented from full participation by
discrimination, disability, or exclusion, by denial of access to public goods, or by the
burdens of social and economic disadvantage, it is difficult to claim that they enjoy the
benefits of autonomy that produce obligation.xvi
Unlike the punishment theories of deterrence and rehabilitation, which are legitimate rationales
for punishment and are merely ineffective in the case of felony disenfranchisement laws,
retribution as a punishment theory fails our modern-day sensibilities of morality. In terms of
felony disenfranchisement laws, stripping felons of their voting rights for reasons of pure
retribution appears at face value to be immoral, anti-rehabilitative, and even unjust.
A final category of punishment rationales is that of incapacitation. This consists of
stripping from the offender the ability to take part in an aspect of society for the benefit of the
community. Thus, incapacitation seems to be a legitimate rationale for incarcerating felons
who have committed violent crimes, as this serves to protect the community from potential
violence. In terms of removing the ability to vote, however, the legitimacy of incapacitation is
less logical. The rationale rests upon a claim to uphold the “purity of the ballot box.”xvii Usage
of this terminology is explained in a 1972 Ninth Circuit decision, Dillenburg v. Kramer:
Courts have been hard pressed to define the state interest served by laws
disenfranchising persons convicted of crime. . . Search for modern reasons to sustain
old governmental disenfranchisement prerogative has usually ended with a general
pronouncement that a state has an interest in preventing persons who have been
convicted of serious crimes from participating in the electoral process or a quasimetaphysical invocation that the interest is preservation of the “purity of the ballot
box.”
This “purity of the ballot box” encompasses both an attempt to prevent voter fraud and
a desire to exclude from the democratic participatory process those who have “proven their
immorality.” There is a fear that criminals may pollute the outcome of elections. This first
claim of voter fraud might plausibly be applied, if anywhere, to individuals who have been
convicted of the specific crime of voter fraud, only a tiny percentage of those incarcerated. The
second claim of exclusion from the democratic process was declared illegal by the Supreme
Court. In terms of a fear that ex-felons would influence electoral outcomes, particularly
4

I. THE AMERICAN CRIMINAL JUSTICE SYSTEM AND VOTING RIGHTS

effecting lenient criminal justice laws, no evidence exists that ex-offenders would vote for
candidates with such policies. In addition, this theory presupposes that there will be candidates
supporting such policies who would receive a large percentage of the non-ex-felon vote, a
highly unlikely scenario.xviii
In terms of the legal justification for “protecting the purity of the ballot box,” this
rationale exhibits the exclusionary tendency of what political scholars terms “civic
republicanism.” Today, we have moved away from this mentality with its emphasis on moral
competence and civic responsibility, instead embracing notions of equality and inclusiveness.
Ultimately, the question of “purity” in terms of voter qualification and the electoral system
translates to the “fencing out” of citizen groups because they lack civic virtue or because of the
way they may vote.xix This was the very exclusionary argument used against the poor, blacks,
and women at various points in American history.xx And in 1973, the Supreme Court wrote in
Carrington v. Rash: “‘Fencing out’ from the franchise a sector of the population because of the
way they may vote is constitutionally impermissible.”xxi With this background, the
rationalization of felony disenfranchisement laws through incapacitation is as untenable as
those rationalizations through deterrence, rehabilitation, and retribution.

B. Rehabilitation as a Lost Priority
Certainly, a society has the right to punish those who break the social contract. This
follows from an Enlightenment theory, explored by Michel Foucault in Discipline and Punish,
in which society takes on the role of the offended when a criminal violates the trust and insults
the dignity of the community’s civil code.xxii Yet, as Marc Mauer and Jamie Fellner warned in
their 1998 report on felony disenfranchisement laws, each society must be careful to reevaluate
its punishment practices according to the “standards of moral decency or political rights” of the
current time. These scholars condemn the practice of disenfranchisement as “a political
anomaly in the United States. It may not have been so inconsistent with prevailing political
culture when the vote was a privilege from which most Americans were barred on grounds of
property, race, education or sex.”xxiii But since such disenfranchisement laws have been put on
the books, our society has evolved with remarkable speed toward an equitable democracy for
all its citizens. In this current climate, felony disenfranchisement laws are now out of place. In
the words of Supreme Court Justice Thurgood Marshall, disenfranchisement “doubtless has

5

I. THE AMERICAN CRIMINAL JUSTICE SYSTEM AND VOTING RIGHTS

been brought forward into modern statutes without fully realizing the effect of its literal
significance or the extent of its infringement upon the spirit of our system of government.”xxiv
Disenfranchisement laws are out of place in our current punitive system that is focused
on incarceration. Felony disenfranchisement is not conferred by a judge as part of a sentence,
and thus co-opts power from the judicial branch and unfairly penalizes all convicted felons
without regard to the severity of their offenses or any mitigating facts brought out in their
trials.xxv Furthermore, a felon does not relinquish all of his rights upon incarceration. While
incarcerated, prisoners are not denied their freedom of religion, speech, or due process, nor are
they unprotected against cruel and unusual punishment.xxvi And in terms of appropriateness,
the preservation of one’s civil rights seems less potentially destructive to the prison system than
the preservation of such sacred constitutional guarantees as the freedom of speech, right to due
process, and protection from cruel and unusual punishment.xxvii One legal scholar of felony
disenfranchisement laws, Andrew Shapiro, points out, “we narrow these [fundamental] rights
only to the extent that they interfere with legitimate objectives of incarceration. It’s not at all
clear how allowing felons to vote disrupts imprisonment.”xxviii As it is reasonable to restrict
such rights only insomuch as the restriction promotes the safety of the community and the
prison system, the need for felony disenfranchisement laws is particularly unclear.xxix
Felony disenfranchisement’s firm rooting in the American punitive system exemplifies
how far away from its rehabilitative goals it has grown. And yet, throughout the world there
are many prison systems that make wholehearted efforts at rehabilitation. Some prison
employment programs are a particularly productive and proven form of rehabilitation, although
sadly in the United States, there are some prison employment programs that are punitive, and
far more eligible and willing prisoners than constructive jobs to go around. A steady complaint
among prisoners is the lack of access to prison employment. In Denmark, for example, inmates
are given budgets to purchase their own food and often pool their money to work together
cooperatively. Here in the United States, a Utah penitentiary provides money for prisoners to
purchase food from the prison canteen through checks, thus training inmates to spend wisely
and balance their checkbooks. Other simple examples of rehabilitative exercises involve
preparing resumés for post-release employment.xxx However, far too many American prisoners
have a much bleaker existence, lacking these rehabilitative experiences. From the perspective
of one inmate inside the prison’s walls, the current system sponsors sanctioned cruelty with
little effort placed on rehabilitating criminals into humane citizens:

6

I. THE AMERICAN CRIMINAL JUSTICE SYSTEM AND VOTING RIGHTS

Mix in solitary confinement, around-the-clock lock-in, no-contact visits, no prison jobs,
no education programs by which to grow, psychiatric treatment facilities designed only
to drug you into a coma; ladle in hostile, overtly racist prison guards and staff; add the
weight of the falling away of family ties, and you have all the fixings for a stressful
psychic stew designed to deteriorate, to erode one’s humanity. . .xxxi
Felony disenfranchisement laws stand today without the support of either a legitimate
theoretical or practical rationale; for this reason alone, their place within the American punitive
system is highly questionable.

C. “Tough on Crime” Campaigns
The most significant trend in the criminal justice system in recent years has been the
rise in conservative criminal justice policies. Felony disenfranchisement laws fall squarely
within this so-called “tough on crime” policy stance. The first presidential candidate to
campaign heavily on a "tough on crime” platform was arch-conservative Barry Goldwater in
his unsuccessful 1964 presidential bid. In his campaign, Goldwater proposed harsh crime
control measures as a response to the liberalism of the 1960s. His successor in terms of
advocating a harsh brand of criminal justice was Richard Nixon, a proponent of strict crime
control policies and initiator of the now-infamous War on Drugs.
By the 1988 presidential race between Massachusetts Governor Michael Dukakis and
Vice President George H. W. Bush, the partisan nature of the “tough on crime” label was
evident. Republicans had not only successfully marketed themselves as “tough on crime,” but
had cultivated a fear within the American voter of Democratic liberals who were “soft on
crime.”xxxii This Republican strategy was crystallized in the “Willie Horton” advertisement of
the 1988 campaign. The television ad featured the mug shot of incarcerated Massachusetts
felon Willie Horton, who, as a result of Governor Dukakis’ “soft on crime” policy of weekend
release for felons, murdered a white woman. By many political analysts’ assessments, this ad
served as the turning point in the 1988 election, successfully tainting Dukakis’ campaigning
efforts. Since then, most successful Democratic candidates, persuaded by the mantra of the
Democratic Leadership Council (DLC), have internalized the fear of being painted “soft on
crime,” going to great lengths to prove to the voting public their harsher than thou criminal
justice policies.

7

I. THE AMERICAN CRIMINAL JUSTICE SYSTEM AND VOTING RIGHTS

In this way, according to criminologist Steven R. Donziger, member of the National
Criminal Justice Commission, politicians “have measured our obsession [with crime],
capitalized on our fears, campaigned on ‘get tough’ platforms, and won.”xxxiii In the past
twenty-plus years, this has resulted in the election of politicians who have created harsher
penalties, such as stricter disenfranchisement laws, longer sentences, higher bails, and
mandatory minimums for sentencing. Mandatory minimums, which restrict the discretion of
judges in sentencing offenders, have been found to be unsound by ninety percent of federal
judges, seventy-five percent of state judges, and even Supreme Court Justice William
Rehnquist.xxxiv The results of such practices are arresting—although crime rates have stabilized
in recent years, incarceration rates have skyrocketed due to harsh sentencing, three-strikes laws,
truth-in-sentencing laws, and mandatory minimums.xxxv Although on its face this might seem
to be a cause of concern for politicians, most have shied away from the issue, instead playing
on public fears in order to reap the benefits of their own “tough on crime” stances.xxxvi
The resulting climate is one in which even liberal politicians are so terrified of the
pernicious “soft on crime” label that they are paralyzed to address harmful conservative
policies.xxxvii Former President Clinton, a DLC founder, serves as an exemplar of a sociallyprincipled Democrat who was no liberal in his criminal justice policies. Although by 1992 the
nation had undergone a ten-year period of the largest increase in the number of prisoners and
prisons in American history, Clinton’s policies, such as the Violent Crime Control and Law
Enforcement Act of 1994, helped lead to the incarceration of an additional 673,000 prisoners
(compared to the 448,000 prisoners added during Reagan’s eight years in office).xxxviii By
December 31, 2000, the U.S. rate of incarceration in federal and state prisons (excluding local
jails) had risen to 478 inmates for every 100,000 residents (up from 292 in 1990).xxxix In terms
of federal incarceration policies, over which the President has direct control, the statistics are
again staggering. Whereas during the Reagan and H. W. Bush presidencies the federal
incarceration rates per 100,000 were 17 and 26, respectively, during Clinton’s presidency this
rate jumped to 42 per 100,000.xl With over two million men and women in prisons and jails,
the U.S. incarceration rate has now reached the astonishing rate of 690 individuals per 100,000
residents, a rate unsurpassed anywhere in the world, with the possible exception of Rwanda,
according to Human Rights Watch.xli
In examining these and other criminal justice and incarceration statistics, it is
imperative to keep in mind that in our system, not all crimes are created equal. Distinguishing
between violent and non-violent crimes is a crucial part of understanding any criminal justice
8

I. THE AMERICAN CRIMINAL JUSTICE SYSTEM AND VOTING RIGHTS

statistic or trend. Most Americans assume that rising incarceration statistics translate directly
into safer communities; however, this is an incorrect deduction from our current criminal
justice data.
A common myth is that U.S. incarceration rates reflect a violent crime rate higher than
those of comparable Western nations. Not true. In the U.S. 2.2 percent of the population are
victims of the crime of assault with force, whereas in Canada this rate is 2.3 percent, in
Australia, 2.7 percent, and in England, 2.8 percent. These statistics are given not to discount or
demean the concerns of Americans who fear for their safety, nor to undermine the efforts of
those who hope to make our society safer. In light of the vastly greater American incarceration
rate, these comparisons serve to illustrate that the recent U.S. trend of skyrocketing
incarceration rates is overwhelmingly driven by the conviction of nonviolent offenders. With
“three strikes and you’re out” policies, for example, there is no means by which to distinguish
violent from non-violent crimes. The result in California is that only 30 percent of those “cast
out” of society with a third strike in 1994 were violent offenders. Within the federal justice
system, a mere 11 percent of inmates in 1996 had committed violent crimes.xlii Thus, the vast
majority of felons convicted, incarcerated, and subsequently disenfranchised under these laws
do not in fact pose a security threat to their communities, which makes their long-term
incarceration a needless and unproductive safety precaution.

D. The Racial Implications of Criminal Justice Policies
For many criminologists, even more disconcerting than the government’s tendency to
gloss over the difference between violent and non-violent offenders is the way crime
automatically becomes a racialized problem. Criminologist Steven R. Donziger has harsh
words for “tough on crime” campaigns and the politicians who espouse them:
When politicians openly paint crime with an African-American face—as in the Willie
Horton ad—or simply boast of getting ‘tough’ on law-breakers in urban areas, they
exploit latent racial tension for political purposes. They also move our nation one step
closer to a racial abyss that has little to do with the creation of a safe society.xliii
As criminologist Michael Tonry describes these criminal policies, “the text may be crime, the
subtext is race.”xliv Masking public speech about race with a façade of criminal justice became
necessary in the 1960s when political dialogue—although not necessarily personal views—

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I. THE AMERICAN CRIMINAL JUSTICE SYSTEM AND VOTING RIGHTS

began to lose some of its overtly racist tone. In President Nixon’s 1968 acceptance speech, he
avoided blatantly racist remarks, cloaking them in the following criminal justice rhetoric:
As we look at America, we see cities enveloped in smoke and flame. We hear sirens in
the night . . . . For the past five years we have been deluged by government programs
for the unemployed; programs for the cities; programs for the poor. And we have
reaped from these programs an ugly harvest of frustration, violence, and failure across
the land.xlv
By 1969, there was a general recognition that law and order had disintegrated, at least in
urban centers, and the blame for this catastrophe fell squarely on the shoulders of the black
community. Although dramatic civil rights gains had been made by dedicated activists and
liberal politicians throughout the 1960s, a backlash of conservative and moderate political
leaders (such as Barry Goldwater, Richard Nixon, and New York Governor Nelson
Rockefeller), began to advocate harsh criminal justice policies. xlvi With such policies as New
York’s Rockefeller Drug Laws of 1973, the “race to incarcerate” (terminology of The
Sentencing Project’s Marc Mauer) began. This “race” continued at full speed in the 1980s
during President Ronald Reagan’s “tough on crime” campaign. Throughout Reagan’s
presidency, the White House unleashed propaganda to vilify criminals and to create a climate
of panic about violence, thus winning public support for harsher criminal penalties.xlvii
Referencing “tough on crime” policies, renowned criminologist and member of the
National Criminal Justice Commission Norval Morris declared, “the whole law and order
movement that we have heard so much about is, in operation, though not in intent, anti-black
and anti-underclass—not in plan, not in desire, not in intent, but in operation.”xlviii And Morris
is not alone in this opinion. From the Green Party to the United States Commission on Civil
Rights (USCCR), this same sentiment echoes through assessments of many current practices,
from disenfranchisement to capital punishment.xlix For example, in condemning various
practices within the problem-ridden 2000 presidential election, the Draft Staff Report from the
USCCR assesses felony disenfranchisement laws with the following concern: “Advocates of
stricter punishment of particular crimes . . . seldom acknowledge the diverse manner in which
people of color receive more frequent convictions and harsher sentences than their white
counterparts.”l
Certainly this point is hard to dispute. Department of Justice statistics indicate a hugely
disproportionate number of convicted felons to be people of color. In the past ten years, the
10

I. THE AMERICAN CRIMINAL JUSTICE SYSTEM AND VOTING RIGHTS

rate of incarceration of black men has risen ten times as quickly as for of white men, resulting
in an incarceration rate eight times higher for blacks than for whites.li In 2000, white males had
an incarceration rate of 449 sentenced prisoners under state or federal jurisdiction for every
100,000 residents, compared to 3,457 for black males. By the end of 2000, although only 12
percent of the American population was black, 46.2 percent of prisoners under state or federal
jurisdiction were black (35.7 percent were white, 16.4 percent were Hispanic, and 1.7 percent
were classified as “Other”). According to the calculations of The Sentencing Project, if current
incarceration rates remain steady, over 28 percent of all black men will have been incarcerated
at one point in their lifetime. This figure is six times that of the lifetime likelihood of
incarceration for white men.lii
Even more worrisome, however, are the many studies which have shown that
discrimination occurs at all steps of the criminal justice process. For example, although black
populations have been proved to use drugs at approximately the same frequency to white
populations, blacks constitute 38 percent of all drug arrests. This is a cause for concern in and
of itself, but even more appalling are the statistics which show that 59 percent of those
convicted for drug offenses are black, and a full 74 percent of those sentenced to prison for
drug offenses are black. Thus, after starting on an uneven playing field due to racial profiling
or law enforcement’s targeting of low-income inner-city neighborhoods, a black offender is
likely to receive increasingly disparate treatment through his trial and sentencing; black
offenders are often given less favorable plea bargains than their white counterparts.liii And in
inextricably linking the criminal justice system to the electoral system, felony
disenfranchisement laws ensure that any of these discriminatory biases translate into political
disempowerment, thus tainting the democratic system itself.
Citing this and other data, various civil rights and social justice advocates have claimed
that racism lies within the structure of the criminal justice system. For many, the mere fact that
such great numbers of people of color are impoverished and criminalized by our society, and
subsequently tangled in the web of our criminal justice system, proves that racism persists
today in devastating forms. Nonetheless, it is important to carefully examine the exact points
within the criminal justice process, from racial profiling to drug laws, that reveal any
underlying racist tendencies of the system.
The first step is to look at criminalization and the way this process works in our
democratic nation. For the diverse citizenry of this country is governed primarily by
11

I. THE AMERICAN CRIMINAL JUSTICE SYSTEM AND VOTING RIGHTS

Americans who are white, male, and middle to upper class. In our society, with its “us-them”
mentality about power and criminal justice, it is natural for Americans to marginalize criminals
and simultaneously assuage communal guilt and responsibility for the criminal behavior. This,
as with all components of criminal justice, is additionally charged when speaking in a racial
discourse. In our modern society, the “us-them” mentality is tainted by the tendency to paint
“us” as white and “them” as black.
This mentality even affects our shifting notions of criminal behavior. As Marc Mauer
points out, in the first half of the twentieth century, marijuana was highly criminalized when it
was solely associated with “them,” meaning primarily black urban youth. But by the 1960s,
when this criminal substance came to be common on the college campuses of white middleclass youth, the drug shed much of its criminal aura, for “criminal” by definition lies with
“them,” not with “us.” Subsequently a similar phenomenon occurred with the competing forms
of cocaine: “black urban” crack cocaine is highly criminalized while “white suburban” powder
cocaine carries much more lenient penalties. According to New York’s Rockefeller drug laws,
for instance, trafficking 500 grams of powder cocaine yields the same criminal penalty as
trafficking only 5 grams of crack cocaine.liv And due to disenfranchisement laws, these
discriminatory methods of criminalization directly impact the democratic functioning of our
society as well. Creating a simplistic dichotomy of power by placing government officials visà-vis prison inmates, for example, illustrates the ease with which the dualistic categories of
empowered and disempowered translate into those of white and black. In rendering
“criminals” voiceless in our democracy, felony disenfranchisement laws cement the inequitable
distribution of power and justice along racial lines.

12

II. THE HISTORY OF FELONY DISENFRANCHISEMENT LAWS

CHAPTER II
A History of Exclusion: The Franchise in the United States
A. The “Right” to Vote
Most Americans believe that, as citizens, they are endowed with the right to vote. They
are mistaken. Perhaps much of this confusion stems from the frequency with which the
expression “right to vote” is used, even in policy documents. For instance, in Representative
John Conyers, Jr.’s (D-MI) bill H.R. 906, the Civic Participation and Rehabilitation Act of
1999, which would have legislated the end to felony disenfranchisement, the first finding
begins, “The right to vote is the most basic constitutive act of citizenship and . . . . may not be
abridged or denied by the United States or by any State on account of race, color, gender or
previous condition of servitude.”lv While voting may well be “the most basic constitutive act of
citizenship,” it is not a right guaranteed by either the federal government or the states. The
Fifteenth Amendment, as H.R. 906 references, does forbid the government from discriminatory
practices in granting the privilege of the vote, yet the Amendment in no way grants the vote to
all American citizens. The Nineteenth Amendment functions in the same way with regard to
women.
This grave difference between preventing discrimination and establishing a
constitutional right strikes at the heart of many political issues today. For instance, residents of
the District of Columbia are denied congressional representation, and the Supreme Court
recently upheld a federal district court decision based precisely on this discrepancy. As
Constitutional Law Professor Jamin B. Raskin points out in his August 27, 2001 article in The
American Prospect, although the Constitution would prohibit the government from denying the
vote to particular protected groups within the District, because the vote is denied to all residents
of the District, this practice is constitutional. As the federal district court ruled, “the Equal
Protection Clause does not protect the right of all citizens to vote, but rather the right ‘of all
qualified citizens to vote.’”lvi According to recent Supreme Court precedent, so long as the law
that determines “qualification” is not on its face discriminatory, such a law is constitutional.
By this reasoning, the fact that disenfranchising the whole of the District of Columbia
results in a disproportionate denial of the vote to citizens of color is irrelevant constitutionally.

13

II. THE HISTORY OF FELONY DISENFRANCHISEMENT LAWS

Similarly, in Bush v. Gore, a majority of the Supreme Court found constitutional sanction in
dismissing the ballots in question, thus disenfranchising many Florida voters. Because this
decision applied to all irregular and miscounted votes, without regard to the race or ethnicity of
the voters, the majority of Justices found this decision in no way conflicted with protections
against discrimination in voting practices. In the case of ex-felons, while a state cannot choose
to disenfranchise only black ex-felons, there exists no constitutional barrier to disenfranchising
all felons, even if the vast majority of these individuals are people of color.lvii
To put this into international perspective, at least 135 nations guarantee the right to vote
and to governmental representation to all of their citizens. In fact, in not explicitly providing its
citizens with the right to vote, the United States blatantly disregards the United Nations’
International Covenant on Civil and Political Rights, and joins only Azerbaijan, Chechnya,
Indonesia, Iran, Iraq, Jordan, Libya, Pakistan, Singapore, and the United Kingdom in this
practice.lviii
Many Americans, both private citizens and public figures, have long considered the
privilege to vote to have evolved into a basic right of citizenship. In the 1886 ruling Yick Wo v.
Hopkins, 118 U.S. 356 (1886), Supreme Court Justice Stanley Matthews mentioned the
franchise specifically in his opinion, stating that “though not regarded strictly as a natural right,
but as a privilege merely conceded by society according to its will under certain conditions,
nevertheless it is regarded as a fundamental political right, because preservative of all rights.”lix
Today, this topic enters the discourse surrounding voting reform ideas. During the 2001
National Commission on Federal Election Reform chaired by former Presidents Jimmy Carter
and Gerald Ford (Ford/Carter Commission), Professor William Boone of Clark Atlanta
University in Georgia addressed the “disrepair” of the electoral system. Boone based many of
his suggested reforms upon the premise that there must be widespread acceptance that voting
has fully evolved from a privilege to a right. He emphasized that at our nation’s founding, the
privilege to vote was given solely to white, male property owners, as these individuals were
deemed to have a vested interest in the governing process. And although today our democratic
system is more inclusive and egalitarian, Boone maintained that “it is not universally held
among Americans that it is good for all citizens to be extended the privilege to vote.” lx

14

II. THE HISTORY OF FELONY DISENFRANCHISEMENT LAWS

B. Steps Toward Inclusion
Although a nation based on democratic principles, America was founded upon
exclusion—democracy for some, but not for all. Through the years, electoral participation has
been opened slowly to almost every group of Americans. In most cases, these extensions of the
vote have come in the form of popular mandates translated into Constitutional Amendments.
The first of these was the Fifteenth Amendment which, in 1870, prohibited discrimination
against ex-slaves in voting laws. In 1920, the Nineteenth Amendment was ratified, outlawing
voting laws which discriminated against women. And most recently, the Twenty-Sixth
Amendment, added in 1971, extended voting laws to include individuals aged eighteen and
older. Throughout American history, supporters of each of these Amendments fought fiercely
against resolute opposition for years, if not decades, before winning their respective battles for
the extension of the franchise. And, characteristic of the historical opposition to full egalitarian
democracy, even these Constitutional Amendments have not always proven sufficient in
curbing discriminatory voting procedures.
Within the past fifty years, federal mandates have served to further protect historically
disadvantaged groups from being denied the vote, from people with disabilities to non-Englishspeaking citizens. The most far-reaching of these legislative initiatives is the Voting Rights
Act passed in 1965 during Lyndon B. Johnson’s presidency. This Act was aimed specifically
at southern Jim Crow laws, quasi-legal actions and intimidation, which often circumvented the
Fifteenth Amendment. In installing such ostensibly race-neutral devices as poll taxes,
grandfather clauses, and literacy tests, many southern states successfully prevented black
citizens from participating in the democratic process. During Reconstruction, before Jim Crow
restrictions were put into place, over two-thirds of eligible blacks voted, and many black
citizens were to elected to legislative positions at local, state and federal levels. By 1940,
however, only three percent of southern blacks were registered to vote.lxi In Mississippi, where
40 percent of the voting-age population was black in 1965, the black registration rate sank to a
mere 6.7 percent. Thirty-three years since the Voting Rights Act passed, Mississippi’s black
registration rate had jumped to 74.2 percent in the November 1998 election, an astounding
testament to the effectiveness of this federal legislation.lxii

C. Criminal Disenfranchisement as Jim Crow’s Legacy

15

II. THE HISTORY OF FELONY DISENFRANCHISEMENT LAWS

The Voting Rights Act of 1965 is commonly thought to have dismantled the entirety of
Jim Crow voting restrictions, yet many people familiar with felony disenfranchisement laws
would disagree. They argue that laws banning felons from voting are the last remaining strand
of the web of racist laws instituted in the late nineteenth and early twentieth centuries in many
southern states. The Reconstruction-era United States Congress required that in order to be
readmitted into the Union, every Confederate state rewrite its constitution according to the
newly-passed Thirteenth, Fourteenth, and Fifteenth Amendments. But various states carefully
crafted laws which complied with these new Amendments while denying equitable treatment to
ex-slaves. In Florida, for instance, while granting suffrage to black citizens in 1868 with its
rewritten constitution, the state simultaneously disenfranchised many of its new citizens by
restricting all felons from voting for life.lxiii
According to historian Andrew Shapiro, by 1890 other states had begun to realize the
potential impact of such felony disenfranchisement laws with respect to limiting numbers of
“undesirable” voters; in that year, Mississippi became the first state to tailor its pre-existing
laws to target black offenders. At a state convention, it was decided to replace a law
disenfranchising those who had committed “any crime” with one that disenfranchised only
those convicted of certain petty crimes such as bribery, perjury, and bigamy, all considered to
be far more prevalent among black offenders than white.
Through the next twenty years, eleven states followed suit, each fashioning its
qualifying offenses specifically to target black citizens. At Alabama’s state convention in
1901, politicians declared that their expressed goal in changing the disenfranchisement laws
was to “establish white supremacy,” thus leaving little room for speculation as to the intent and
assumed impact of such new laws.lxiv It is true that these disenfranchisement laws were far less
effective and more subtle than their Jim Crow counterparts, which included the poll tax and the
grandfather clause, but to their creators’ credit, felony disenfranchisement laws are the sole
discriminatory voting laws to have survived the test of time.lxv These remnants from the Jim
Crow era exist on the books today without the narrowly-tailored focus on black offenders. lxvi
And yet, even now, these racially-neutral policies have the same impact that southern statesmen
had intended when they enacted them into law one hundred years ago.
Felony
disenfranchisement disproportionately affects black citizens, diluting the power of the
collective black vote in elections, and thus explicitly fulfilling the legacy of the Jim Crow era.

16

II. THE HISTORY OF FELONY DISENFRANCHISEMENT LAWS

CHAPTER III
The Impact of Felony Disenfranchisement Laws

A. An Overview of State Laws
Today, felony disenfranchisement laws are in place in 48 states and the District of
Columbia. In a report collecting and classifying these 49 different state procedures, the
Department of Justice admitted that “the laws governing the same rights and privileges vary
widely from state to state, making something of a crazy-quilt of disqualifications and
restoration procedures.”lxvii According to the U.S. Constitution, all decisions governing voting
rights are made at the state level. Even qualifications for voting in federal elections and voting
rights for felons convicted of federal offenses fall entirely within state jurisdiction.lxviii
Currently, only Maine and Vermont do not impose restrictions upon the voting rights of their
felons, even allowing individuals to vote while incarcerated. Sixteen states and the District of
Columbia disallow felons from voting while incarcerated, but institute no penalties for those
released from prison or jail. Thirty-two states prohibit felons from voting while incarcerated or
on parole, and twenty-eight of these states also disallow voting by felons on probation. Finally,
thirteen states employ the severe penalty of revoking voting rights for felons even after they
have fully served their sentences. In eight states, this penalty is permanent and applies to all
felons, while in the other five states felons are affected for varying lengths of time depending
upon their release dates and number of offenses. The following chart, last updated in April of
2001, shows the felon populations disenfranchised in each state:
Felony Disenfranchisement Laws, by State, April, 2001
STATE

PRISON

PROBATION

PAROLE

EX-FELONS

Alabama

X

X

X

X

Alaska

X

X

X

Arizona

X

X

X

Arkansas

X

X

X

17

X*

III. THE IMPACT OF FELONY DISENFRANCHISEMENT LAWS

STATE

PRISON

PROBATION

PAROLE

California

X

X

Colorado

X

X

Connecticut

X

X

Delaware

X

District of Columbia

X

Florida

EX-FELONS

X

X

X*

X

X

X

X

Georgia

X

X

X

Hawaii

X

Idaho

X

Illinois

X

Indiana

X

Iowa

X

X

X

X

Kansas

X

Kentucky

X

X

X

X

Louisiana

X
X

X

X*

Maine
Maryland

X

Massachusetts

X

Michigan

X

Minnesota

X

X

X

Mississippi

X

X

X

Missouri

X

X

X

Montana

X

Nebraska

X

X

X

Nevada

X

X

X

New Hampshire

X

New Jersey

X

X

X

New Mexico

X

X

X

New York

X

North Carolina

X

North Dakota

X

Ohio

X

Oklahoma

X

X

18

X

X

X

X

X

X

III. THE IMPACT OF FELONY DISENFRANCHISEMENT LAWS

STATE

PRISON

PROBATION

PAROLE

Oregon

X

Pennsylvania

X

Rhode Island

X

X

X

South Carolina

X

X

X

South Dakota

X

Tennessee

X

X

X

Texas

X

X

X

Utah

X

EX-FELONS

X*

Vermont
Virginia

X

X

X

X

Washington

X

X

X

X*

West Virginia

X

X

X

Wisconsin

X

X

X

Wyoming

X

X

X

X

Total

49

28

32

13

* These states selectively disenfranchise ex-felons. In Arizona and Maryland, ex-felons
are only disenfranchised after their second felony. In Tennessee and Washington, ex-felons are
only disenfranchised if their offenses predate 1986 and 1984, respectively. In Delaware, exfelons are disenfranchised for five years after their sentences are complete.
Source: The Sentencing Projectlxix
As is evident, lifetime disenfranchisement for felons is no longer the rule. Over the past
forty years, fifteen states have eliminated disenfranchisement laws for ex-felons.lxx Especially
in the past few years, reform of disenfranchisement policies has often appeared on state
legislative agendas. In New Mexico, for example, the law permanently disenfranchising exfelons has recently been repealed by the state legislature.lxxi And in many other states where
felons are disenfranchised for life, recent attempts to reform these practices have met with more
limited success, oftentimes reaching the floor of the legislative body before ending in a defeat
by a majority vote. Yet in the past few years efforts have been underway on a state level to
enhance voting rights for felons in places as diverse as Alabama, Connecticut, Delaware,
Florida, Maryland, Pennsylvania, Virginia, and Nevada; this serves as a hopeful sign that, in
some places, public opinion and legislative priorities are slowly shifting toward opposition to

19

III. THE IMPACT OF FELONY DISENFRANCHISEMENT LAWS

harsh disenfranchisement penalties.lxxii Optimism must be tempered, however, with concern
over the public sentiment in other states. Until recently, Utah and Massachusetts were among
those states that did not suspend the voting rights of incarcerated felons. These liberal laws
were replaced in 1998 and 2000, respectively, with stricter policies whereby felons must
surrender the franchise upon incarceration.lxxiii
Almost all states that disenfranchise ex-felons in theory allow them to regain their
voting rights through specific legal procedures. The Department of Justice classifies state
procedures in five general categories. In some states, voting rights are either not lost at all or
are restored automatically upon release from incarceration. Other states automatically restore
voting rights once a felon’s sentence is fully complete by either the granting of a certificate or
the passage of a specified amount of time. A third category includes states that allow voting
rights to be restored by a judicial or administrative procedure when an ex-felon can prove his
rehabilitation after a given amount of time. A fourth group of states mandates that a felon can
only regain the privilege to vote upon a formal pardon. And finally, a few states declare voting
rights to be permanently lost with no chance of restoration.
For persons convicted of federal felonies, the restoration process can be particularly
difficult. Many states—at least sixteen as of March 1999—have no regulations in place
specifically for this procedure. Thus, a presidential pardon serves as the only means by which
many federal felons can regain their voting rights.lxxiv Furthermore, the restoration process
even for state felons is, as one clemency office employee put it, “sometimes worse than
breaking a leg.”lxxv For many ex-felons the court costs and other fees necessary for proving
their rehabilitation, or the tedious legal process of submitting an application for a pardon, make
the obstacles for restoration insurmountable.lxxvi For example, according to the 1975 Code of
Alabama, state authorities require a costly DNA sample as part of the application process for
regaining voting rights. This situation is made ludicrous by the fact that as of 2000, only 4 of
Alabama’s 67 counties had correct DNA testing equipment to process the samples.lxxvii
In addition to cumbersome legal procedures, many states do not properly inform felons
upon their release of the correct application procedures, which might be regarded as the states’
bare minimum responsibility in creating civic-minded citizens of ex-felons. In Florida, where
the restoration process was deemed faulty and then readjusted in 2000, less than half of one
percent of the states’ ex-felons have been able to successfully regain their voting rights in the
past year. As the law stands, ex-felons are denied the franchise for reasons such as traffic
offenses or back-owed child support, something almost impossible for many recently released
20

III. THE IMPACT OF FELONY DISENFRANCHISEMENT LAWS

fathers to pay. One state senator revealed that only 9 of the 175 ex-felons whom he helped
through the restoration process were successfully given back their voting rights.lxxviii In
Virginia, a state with 200,000 ex-felons, only 404 regained their voting rights in 1996 and
1997.lxxix

B. Incarceration Statistics
The ramifications of these disenfranchisement laws are enormous once the state laws
are read along with recent incarceration statistics. As of 1997, it is estimated that 5.1 percent of
U.S. residents are likely to be incarcerated in a state or federal prison in his or her lifetime. lxxx
According to the most recent Department of Justice statistics, on June 30, 2000, the inmate
population in U.S. state or federal prisons or local jails, stood at 1,931,859, translating to a U.S.
incarceration rate of 702 inmates for every 100,000 U.S. residents, or 1 inmate for every 142
U.S. residents. These incarceration rates contrast sharply with inmate populations around the
world:
Rate of Incarceration in Selected Nations

702

United States
644

Russia

575

Belarus

495

Kazakhstan

460

Belize
400

South Africa
125

United Kingdom

110

Canada

110

Australia

110

Spain

95

Germany

90

France

90

Italy

90

Netherlands

85

Switzerland

60

Sweden

40

Japan
0

100

200

300

400

500

600

700

Incarceration Rate (number of inmates per 100,000 residents)

Source: The Sentencing Project, using most recent available datalxxxi

21

800

III. THE IMPACT OF FELONY DISENFRANCHISEMENT LAWS

The current American incarceration rate is up from 458 inmates for every 100,000 U.S.
residents in 1990, when the total inmate population was 1,148,702.lxxxii This translates to an
annual average 5.6 percent increase in the American incarcerated population over the past
decade.lxxxiii Breaking this rate of increase down into state prisons, federal prisons, and local
jails is interesting. While over the past ten years local jail populations have grown at an
average annual rate of 4.6 percent, and state prison populations have grown at the somewhat
higher annual average rate of 5.9 percent, the number of prisoners in federal custody has more
than doubled in the same decade, growing at an average annual rate of 8.8 percent. Most
recently, from June 30, 1999 to June 30, 2000, the federal inmate population grew at a rate of
11.4 percent, compared to state prison and local jail rates of 2.4 percent and 2.5 percent,
respectively.lxxxiv
Much of this discrepancy in growth rates is due to the federal government’s War on
Drugs. Although in 2000 the plurality of state prisoners were convicted of violent offenses (48
percent), followed by property and drug offenses (each group comprising 21 percent of state
felons), the composition of federal prisons was dramatically different. Only 11 percent of
federal prisoners were violent offenders, 7 percent were property offenders, but 57 percent were
drug offenders. These drug offenses comprised 60.9 percent of the total growth in the federal
prison system during the period 1990 through 1999.lxxxv According to Department of Justice
statistics for 1991, even at this early date 61.6 percent of first-time federal offenders were
incarcerated for drug offenses, compared to 31.1 percent of first-time state prison
admissions.lxxxvi
Thus far, this statistical overview has consisted only of incarceration statistics in terms
of state prison, federal prison, and local jail inmates. The majority of felons, however, exist not
within prison or jail walls, but under supervised release in the form of probation or parole. In
the context of disenfranchisement laws, this is particularly significant given that the majority of
states disenfranchise felons serving probation and parole sentences. In 1999, while 1,881,379
felons were incarcerated in prisons and jails, 3,773,624 felons were on probation—with an
additional 712,713 felons on parole. These numbers bring the total U.S. population under
correctional supervision up to 6,318,900.lxxxvii
Specifically in terms of felons convicted of federal offenses, matching the 119,185
individuals incarcerated in 1999 (57 percent of whom were drug offenders) were an additional
92,768 felons under community supervision (38.3 percent of whom were drug offenders).
22

III. THE IMPACT OF FELONY DISENFRANCHISEMENT LAWS

Almost two-thirds of these felons under community supervision were on parole, and the
remaining 32,000 federal felons were on probation.lxxxviii As for state felons, 629,218 were on
parole in 1999, with Texas and California each holding over 100,000 felons on parole (both
states disenfranchise parolees). In the South, where only the District of Columbia and
Louisiana allow parolees to vote, 223,922 individuals were on parole in 1999.lxxxix In terms of
state felons on probation, Florida, Georgia, and Texas, three states that disenfranchise
probationers, had a combined total of over one million individuals serving probation sentences
in 1999. The southern region again led the nation in terms of numbers of felons on probation,
comprising over 1.5 million of the nation’s 3.6 million probationers. As with the parole
population, this statistic is important in that the entirety of the southern region, excluding
Louisiana and the District of Columbia, disenfranchise felons on probation.xc
For the black and Hispanic communities, these statistics are even starker. According to
1997 figures, black males have a 28.5 percent chance over their lifetimes of being incarcerated
in state or federal prisons. This same expected lifetime incarceration rate for Hispanic males is
16.0 percent (contrasted to the rate for white males of non-Hispanic origin of 4.4 percent). In
fact, according to these data 15.9 percent of black males are incarcerated in state or federal
prisons by the age of 25. For Hispanic males and white males of non-Hispanic origin aged 25
and under, this rate is 6.3 percent and 1.7 percent, respectively.xci Department of Justice
statistics show that of the 1,237,489 prisoners under state, federal and local jurisdiction, 40.9
percent are white and of non-Hispanic origin, 48.5 percent are black, and 17.5 percent are of
Hispanic origin.xcii Nationwide, the male incarceration rate is 1,297 inmates for every 100,000
American residents, yet for white non-Hispanic males, this rate is only 683 inmates for every
100,000 residents. The Hispanic male incarceration rate is 1,715 inmates for every 100,000
residents, and a black male incarceration rate is 4,777 for every 100,000 residents. The rate is
higher yet for black males 25- to 29-years old; in this subset of the population, there are 13,118
inmates for every 100,000 residents.xciii
In examining total correctional populations, including inmates in state and federal
prisons, local jails, and individuals on both probation and parole, a total of 2,149,900 black
Americans were under correctional supervision in 1997 (37.8 percent of the total American
population under correctional supervision, but only 12 percent of the U.S. population). This
statistic shows that a full 9 percent of all black Americans, regardless of gender or age, were
serving time for offenses. Obviously, this statistic skyrockets when narrowing the focus to
males or to those 20 to 35 years of age.xciv For black males aged 20 to 29, for example, there
are over 27,000 adults in prison, jail, on probation, or on parole for every corresponding
23

III. THE IMPACT OF FELONY DISENFRANCHISEMENT LAWS

100,000 residents of the same race, gender, and age.xcv This is one in four young black men. In
terms of their offenses, many of these black felons are serving time for drug-related crimes.
For state prisoners, whereas only 20.2 percent of white non-Hispanic felons and 20.7 percent of
Hispanic felons are drug offenders, 57.6 percent of black felons have been convicted of drug
offenses.xcvi And for federal prisoners, over 65 percent of black inmates are serving time for
drug offenses. xcvii These statistics attest to the degree to which the War on Drugs has wreaked
havoc on the black community; over 25 percent of black men in their twenties are currently
under correctional supervision, most of these men serving time for drug-related offenses.
These statistics, combined with felony disenfranchisement laws, constitute a democratic crisis.

C. Disenfranchisement Statistics
The incarceration rates described above translate directly into a bleak reality: 2.1
percent of the nationwide voting-age population is disenfranchised due to felon and ex-felon
status.xcviii And at a time of intense voter apathy, when political leaders have begun to openly
discuss ways to remedy the ever-diminishing voter turnout rates, legally preventing over one in
50 citizens from voting makes a travesty of the democratic process. As would be expected by
the varying incarceration rates and disenfranchisement laws among states, some states
disenfranchise far more of their eligible electorate than others. And this is of particular concern
in conjunction with the electoral college system.
Mississippi, Alabama, Nevada, Arizona, and Delaware, all states that disenfranchise exoffenders, constitute half of the list of top ten states that incarcerate the largest percentage of
their populations. Incidentally, Maine and Vermont, the two states that do not employ any
form of felony disenfranchisement laws, are among the ten states that incarcerate at the lowest
rate per resident population.xcix Of the 11 states that permanently disenfranchise felons, the
average state disenfranchisement rate is 5.1 percent, compared to 1.7 percent for the remaining
39 states. This shows the “effectiveness” of the ex-felon disenfranchisement laws, which have
disenfranchised 1,400,000 ex-felons nationwide, persons who have completed their sentences
and are living free in society.c According to the July 2001 report of the National Commission
on Federal Election Reform (Ford/Carter Commission), John Mark Hansen claimed that if
permanent disenfranchisement, parole, and probation disenfranchisement laws were repealed,
the overall disenfranchised population would shrink to 1.2 million Americans. This represents
only 0.6 percent of the voting-age population.ci As Professors Uggen and Manza found in their
statistical analysis of the disenfranchised population, only 29 percent of those without voting

24

III. THE IMPACT OF FELONY DISENFRANCHISEMENT LAWS

rights are prison and jail inmates, while 34 percent are ex-felons, 27 percent are probationers,
and 11 percent are parolees.cii Their complete state-by-state estimates of disenfranchised felon
populations, using Department of Justice reports, are shown below. Those states that
permanently disenfranchise felons are shaded in black.
Inmate, Disenfranchised, and Voting Age Population, by State, December 31, 1998

State

AL
AK
AZ
AR
CA
CO
CT
DE
DC
FL
GA
HI
ID
IL
IN
IA
KS
KT
LA
ME
MD
MA
MI
MN
MS
MO
MT
NE
NV
NH
NJ

Prison and
Felony
Total
Probationers
Ex-Felons
Jail Inmates
Parolees
Disenfranchised

24,468
2,547
26,343
10,638
169,488
15,212
12,200
3,213
10,114
72,332
42,546
3,668
4,364
44,739
20,476
7,694
8,621
16,024
34,790
0
23,667
0
47,442
6,072
17,567
22,668
2,886
3,886
10,141
2,328
32,804

32,725
4,403
48,044
32,141
0
0
32,086
10,015
0
105,247
96,071
0
6,794
0
0
8,155
0
10,741
0
0
21,944
0
0
28,285
11,530
41,275
0
2,390
4,806
0
98,675

6,785
492
3,742
6,371
110,617
5,204
1,185
572
0
7,421
20,482
0
1,274
0
0
2,194
6,025
4,508
0
0
15,528
0
0
2,995
1,489
10,366
0
624
4,055
0
14,557

140,384
0
48,736
0
0
0
0
18,201
0
524,816
0
0
0
0
0
71,277
0
95,506
0
0
61,232
0
0
0
75,676
0
0
0
40,875
0
0

25

204,362
7,442
126,865
49,150
272,521
20,416
45,471
32,001
10,114
709,816
159,099
3,668
4,364
44,739
20,476
89,320
14,646
126,780
34,790
0
122,371
0
47,442
37,353
106,262
74,309
2,886
6,690
59,876
2,328
146,036

Voting Age
Population

Disenfranchisement
Rate

3,293,000
437,000
3,547,000
1,882,000
23,665,000
2,961,000
2,464,000
568,000
414,000
11,383,000
5,678,000
878,000
888,000
8,755,000
4,410,000
2,157,000
1,925,000
2,990,000
3,149,000
957,000
3,824,000
4,731,000
7,266,000
3,483,000
2,014,000
4,042,000
658,000
1,231,000
1,314,000
890,000
6,075,000

6.21%
1.70%
3.58%
2.61%
1.18%
0.69%
1.85%
5.63%
2.44%
6.24%
2.80%
0.42%
0.51%
.51%
0.46%
4.14%
0.76%
4.24%
1.10%
0.00%
3.20%
0.00%
0.65%
1.07%
5.28%
1.84%
0.44%
0.56%
4.56%
0.26%
2.40%

III. THE IMPACT OF FELONY DISENFRANCHISEMENT LAWS

State

NM
NY
NC
ND
OH
OK
OR
PA
RI
SC
SD
TN
TX
UT
VT
VA
WA
WV
WI
WY

Voting Age
Population

Disenfranchisement
Rate

68,980
135,527
74,220
974
50,114
47,425
8,927
36,377
15,702
49,562
2,541
83,784
519,851
8,163
0
275,382
141,611
8,500
51,463
16,102

1,250,000
13,590,000
5,685,000
476,000
8,401,000
2,463,000
2,484,000
9,118,000
751,000
2,886,000
538,000
4,120,000
14,299,000
1,432,000
448,000
5,165,000
4,257,000
1,406,000
3,887,000
354,000

5.52%
1.00%
1.31%
0.20%
0.60%
1.93%
0.38%
0.40%
2.09%
1.72%
0.47%
2.03%
3.64%
0.57%
0.00%
5.33%
3.33%
0.60%
1.32%
4.55%

4,193,245

200,939,000

2.09%

Prison and
Felony
Total
Probationers
Ex-Felons
Jail Inmates
Parolees
Disenfranchised

5,507
75,979
33,139
974
50,114
21,566
9,514
36,377
2,174
22,993
2,541
19,701
150,303
4,391
0
30,384
15,215
3,727
19,707
1,672

TOTAL 1,204,916

7,088
0
35,341
0
0
24,327
0
0
13,059
22,210
0
26,440
257,526
0
0
29,838
91,727
3,798
22,830
2,717

1,773
59,548
5,740
0
0
1,532
0
0
469
4,359
0
7,605
112,022
3,772
0
6,700
375
975
8,927
448

54,612
0
0
0
0
0
0
0
0
0
0
30,038
0
0
0
208,461
34,294
0
0
11,265

1,132,227 440,731 1,415,373

Source: Manza, Uggen, and Britton, “The Truly Disenfranchised” ciii
The state-by-state comparisons within this chart are particularly interesting. With the
exceptions of Tennessee, Washington, Maryland, and Arizona, all of which have permanent
disenfranchisement laws but utilize them selectively, the lowest disenfranchisement rate among
states that penalize ex-felons is 4.14 percent of the voting public. Even this lowest figure
surpasses the disenfranchisement rate of every state that automatically re-enfranchises their
felons upon completion of their sentences. The chart also makes clear which states are the
grossest offenders in terms of violating a large number of citizens’ voting rights. Florida and
Texas combine to disenfranchise over 1.2 million individuals, 29 percent of the total 4.2
million disenfranchised Americans. And the top five disenfranchisers, Florida, Texas, Virginia,
California, and Alabama, together disenfranchise over half of the nation’s 4.2 million total. In
contrast, the 20 lowest disenfranchisers together deny only 229,532 individuals the vote, a mere

26

III. THE IMPACT OF FELONY DISENFRANCHISEMENT LAWS

5 percent of the total disenfranchised population. Thus, although high incarceration rates
nationwide have brought this problem of disenfranchisement to national attention, the gravest
problem lies in certain states. In these states, growing felon populations coupled with harsh
laws are adversely affecting huge numbers of citizens and the overall functioning of
democracy.
Furthermore, these statistics, high as they seem, are misleadingly low in that they
describe the adult population as a whole. In fact, when socioeconomic and especially racial
divisions are factored in, it becomes evident that for certain populations, disenfranchisement
rates are much higher than the national average of 2.09 percent. As with the total number of
disenfranchised, these black felons and ex-felons are largely localized in particular states. With
its final report, the Ford/Carter Commission published a chart listing the racial breakdown of
Uggen and Manza’s state-by-state findings as percentages of state voting-age populations. The
following is a recreation of the Ford/Carter Commission’s chart using data from January 1,
1999. Here, again, those states that disenfranchise ex-felons are shaded in black.
Disenfranchised Population as a Percentage of the Voting-Age Population, by State
State

National Total
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
D.C.
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas

Disenfranchisement Rate
All

Disenfranchisement Rate
Black

Disenfranchisement Rate
White, Latino, and Other

2.09%

6.57%

2.09%

6.24%
1.70%
3.58%
2.61%
1.18%
0.69%
1.85%
5.63%
2.44%
6.24%
2.80%
0.42%
1.40%
0.51%
0.46%
4.14%
0.76%

12.41%
5.65%
11.75%
7.60%
4.84%
4.07%
6.42%
15.60%
4.18%
13.77%
6.08%
0.26%
4.05%
2.39%
5.24%
22.52%
5.22%

4.26%
1.55%
3.29%
1.78%
0.87%
0.55%
1.73%
3.45%
0.58%
5.07%
1.62%
0.42%
0.47%
0.21%
0.07%
3.81%
0.50%

27

III. THE IMPACT OF FELONY DISENFRANCHISEMENT LAWS

State

Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming

Disenfranchisement Rate
All

Disenfranchisement Rate
Black

4.24%
1.10%
0.00%
3.20%
0.00%
0.65%
1.07%
5.28%
1.84%
0.44%
0.56%
4.56%
0.26%
2.40%
5.52%
1.00%
1.31%
20.00%
0.60%
1.93%
0.38%
0.40%
2.09%
1.72%
0.47%
2.03%
3.64%
0.57%
0.00%
5.33%
3.33%
0.60%
1.32%
4.55%

14.96%
2.87%
0.00%
7.57%
0.00%
2.72%
7.54%
9.71%
6.56%
3.33%
3.83%
16.53%
1.91%
9.73%
24.78%
3.11%
3.72%
1.04%
3.10%
8.00%
2.74%
2.56%
11.68%
3.90%
2.64%
5.86%
8.77%
5.01%
0.00%
13.82%
12.32%
2.70%
10.61%
14.94%

Disenfranchisement Rate
White, Latino, and Other

4.60%
0.36%
0.00%
1.62%
0.00%
0.34%
0.91%
3.06%
1.31%
0.43%
0.42%
3.66%
0.25%
1.25%
5.00%
0.57%
0.68%
0.20%
0.30%
1.47%
0.32%
0.19%
1.65%
0.88%
0.46%
1.36%
2.95%
0.53%
0.00%
3.35%
3.01%
0.54%
0.86%
4.46%

Source: The Ford/Carter Commissionciv
As is evident from these statistics, in many places black citizens face significantly
higher chances of disenfranchisement than the American average of 1 in 50. Even more

28

III. THE IMPACT OF FELONY DISENFRANCHISEMENT LAWS

striking is the statistical chance that a black man is unable to vote due to his felony status.
Across the country, 13 percent of all black men are currently disenfranchised. This is 36
percent of all of those disenfranchised, translating into 1.4 million adult black males
nationwide.cv In 7 states, over 25 percent of black men are permanently disenfranchised, and in
Florida and Alabama, this percentage climbs to 31 percent, almost 1 in 3 adult black men. cvi
These are the statistics which prompt commentators to invoke Jim Crow imagery and the preCivil Rights Era status of black would-be voters.

D. Repercussions of Disenfranchisement for Ex-Felons and Their Communities
As should be expected, these disenfranchisement laws, which impact an increasing
number of Americans every year, have damaging emotional and social consequences for those
felons and ex-felons who fall under their jurisdiction. For not only are disenfranchisement laws
fundamentally anti-rehabilitative in nature, but they cultivate a sense of inferiority,
powerlessness, and exclusion in individuals at the very moment they are attempting to re-enter
society. Perhaps the most obvious effect is the palpable social stigma that these laws create for
ex-felons. As Itzkowitz and Oldak point out in The American Criminal Law Review, “The
offender finds himself released from prison, ready to start life anew and yet at election time still
subject to the humiliating implications of disenfranchisement . . . [Denying him the vote] is
likely to reaffirm his feelings of alienation and isolation, both detrimental to the reformation
process.”cvii Ohio ex-felon Carl Upchurch calls disenfranchisement “emotionally scarring,”
explaining the practice as denying the felon his very “right to citizenship.”cviii
In their exclusion from the democratic process, ex-felons find a constant reminder of
their alienation from society. This is particularly frustrating because of the potential good that
could come of re-enfranchisement. While disenfranchisement has never proven to be a
deterrent to criminal behavior, restoring voting rights for felons could be a powerful
rehabilitative procedure. As Representative John Conyers (D-MI) declares, “if we want former
felons to become good citizens, we must give them rights as well as responsibilities, and there
is no greater responsibility than voting.”cix Instead, our system cultivates disillusionment at a
time when ex-felons are particularly vulnerable, reinforcing the feelings of estrangement and
exclusion from society which are intrinsic to the incarceration process, according to Upchurch.
In his experience, ironically many felons “never considered [themselves] citizens anyway,” and
always felt themselves to be outside a system seemingly rigged against them.cx According to a
study commissioned by the Department of Justice on the various social challenges facing

29

III. THE IMPACT OF FELONY DISENFRANCHISEMENT LAWS

released prisoners upon their return to society, Joan Petersilia reported that among ex-felons
“disillusionment with the political process also erodes citizens’ feelings of engagement and
makes them less willing to participate in local political activities and to exert informal social
control in their community.”cxi Put bluntly by Upchurch, if an ex-felon is permanently outside
of the law, he may be prone to think, “what desire do I have to remain inside the law?”cxii
Thus, disenfranchisement may even indirectly contribute to high rates of recidivism.
In terms of the black community as a whole, and the greater American society of which
it is an integral part, the phenomenon of an increasing number of individuals being incarcerated
and disenfranchised is cause for widespread social instability. Almost 600,000 prisoners from
state, federal, and local correctional facilities are being released into society each year, and until
Petersilia’s report in November 2000, the federal government had yet to undertake a
comprehensive examination of the repercussions of this massive “prisoner reentry.” In this
report, sociologist Elijah Anderson described a “breakdown of cohesion” and “socially
disorganized communities” in which released felons become pop culture heroes, especially to
youth. According to this sociological theory, ex-felons transmit their “criminal” behavior, as
reinforced by their fellow inmates in prison, to the younger generation.cxiii
To disenfranchise these released inmates creates not only a personal sense of alienation
within these ex-felons individually, but also fosters disrespect and resentment for the
authorities who repeatedly arrest, incarcerate, and then silence the political voices of large
sections of the community. Politically speaking, this mentality translates into mass
disillusionment in the governing system, which, come election time, manifests itself as political
apathy, an oft-diagnosed malady of modern American society.cxiv In a study undertaken by
Marika Litras of the Department of Justice, state voter turnout rates for black citizens were
lower in states that disenfranchised parolees and ex-felons than in states that automatically
restored voting rights upon release from prison.cxv In the 1996 election, black males of 18 to 24
years held the lowest voter turnout percentages in the American population as a whole.
According to the U.S. Census, only 22.1 percent of black males aged 18 to 20 years voted, and
for black males 20 to 24 years of age, this percentage was only slightly greater, 28.4 percent.
These percentages fall well below the national average of 54.2 percent, and it is hardly
surprising that this particular demographic group, which ranks the most likely to be
incarcerated, is also the most politically apathetic.cxvi
This apathy affects not only those most likely to be arrested, however, but also all
people with personal ties to disenfranchised ex-felons. As Carl Upchurch described,
30

III. THE IMPACT OF FELONY DISENFRANCHISEMENT LAWS

disenfranchisement creates a ripple effect throughout the black community, especially affecting
the peripheral family and the children of ex-felons. In Upchurch’s words, “For children, their
civics lesson is watching how the system affects their family.” Thus, if children feel the system
has mistreated their family, they are likely to lose faith in the system.cxvii Studies show that
persons most likely to vote had parents who voted. Conversely, each generation of
disenfranchised ex-felons cultivates greater voter apathy.cxviii

E. The Electoral Cost of Disenfranchisement – A Partisan Perspective
In addition to the emotional and social effects of disenfranchisement laws, there are
political consequences for denying the vote to a large portion of the population. As pointed out
by John Mark Hansen in a Ford/Carter Commission report, in the past fifty years the American
electoral college system has had to many incredibly close elections. Since 1948, in fact, in the
14 presidential elections combined, 22 states have been decided by less than one percentage
point. During this same time period, the outcome in 40 states has been decided by less than two
percentages points. When looking at senatorial elections, four percent of all state-level
elections over the past 52 years were decided by less than one percentage point, and five
percent of gubernatorial elections were decided by similarly small margins.cxix Seen in this
context, the disenfranchisement of 4.2 million potential voters nationwide has had a possible
dramatic electoral impact, inspiring deeper inquiry.
This was the very politically important question Sociology Professors Manza and
Uggen set out to investigate. As Uggen explained, he and Manza realized that as the legal and
philosophical aspects of felony disenfranchisement were being examined, an analysis of the
political ramifications of these laws logically followed.cxx One of their preliminary findings
was that disenfranchisement rates had been largely disregarded in analyses of elections; voter
turnout rates are tabulated according to the population of voting-age individuals, ignoring the
fact that in some states relatively large numbers of this population are in fact legally barred
from participating.cxxi
Manza and Uggen utilized voter turnout statistics from the Current Population Survey’s
Voter Supplement Module and expected-vote choice statistics from the National Election Study
for each presidential and senatorial election since 1972. Applying these data to corresponding
disenfranchised populations as reported in Department of Justice reports, the researchers
extrapolated voter turnout and voting preferences among felons from behavior of voters from

31

III. THE IMPACT OF FELONY DISENFRANCHISEMENT LAWS

similar populations. In terms of voter preference, the population of felons and ex-felons is
disproportionately comprised of individuals of color and individuals with low income and
education levels, sociological segments of the American population which vote
overwhelmingly for Democratic candidates.
Manza and Uggen examined each election
separately, translating the appropriate turnout and voter preference rates in terms of the net
Democratic votes, and then comparing this number to the margin of victory in the cases of
Republican triumphs. The results are startling.cxxii
Manza’s and Uggen’s estimated turnout rates for felons are low, ranging from 13.7
percent in the Northeast for the 1998 Senate elections to 38.6 percent in the Midwest for the
1984 presidential election. Yet, even at these low numbers, they determined that felon voters
probably would have made the crucial difference in seven senatorial races. The results are as
follows:
The Impact of Felony Disenfranchisement in Selected Elections
Year
State

1978
Virginia

1978

1984

1988

1988

1992

1998

Texas

Kentucky

Florida

Current Felons

21,776 100,707

20,583

87,264

3,013

1,319

31,274

Ex-Felons

72,709

89,662

54,481 232,536

6,969

0

95,506

Total

94,475 190,369

75,481 319,800

9,982 131,911

126,780

Estimated
Felon/Ex-Felon
Turnout

17.2%

17.2%

30.2%

24.3%

27.5%

30.5%

14.0%

Percent
Democratic

84.3%

84.3%

74.2%

82.9%

82.9%

74.7%

69.2%

Net Democratic
Felon/Ex-Felon
Votes

11,137

22,441

10,998

51,192

1,803

19,873

4,721

12,227

5,269

34,518

1,322

16,237

6,766

-6,416

-10,214

-5,719

-16,674

-481

-3,636

-38

Actual Republican
Margin of Victory
Counterfactual

Wyoming Georgia

Source: Manza, Uggen and Britton, “The Truly Disenfranchised” cxxiii

32

Kentucky

6,804

III. THE IMPACT OF FELONY DISENFRANCHISEMENT LAWS

Democratic victory in these seven Senate races would have stopped the Republican takeover of
the Senate majority in the 1990s, and perhaps would even have affected the makeup of the
Senate today, given the high probability that incumbent parties retain their seats each
election.cxxiv The most significant close election in recent history, however, is left off of this
list. Although their results are not yet complete, Manza and Uggen have begun to run the
numbers for the highly disputed presidential election of 2000. In terms of the popular vote,
they have found that, not surprisingly, Gore would have beaten Bush by over one million
popular votes had those felons and ex-felons currently disenfranchised been allowed to vote. In
Florida, Gore would have come away with 80,000 to 90,000 more votes than the victorious
Bush. The complete results of their analysis should be available soon.cxxv
While the quantification of the electoral repercussions of disenfranchisement laws is an
interesting exercise, this emphasis on translating felons and ex-felons into lost Democratic
votes is potentially problematic. To let a partisan electoral gain eclipse the fundamental
democracy issue at hand—focusing on disenfranchisement for the express purpose of gaining
Democratic votes instead of fostering egalitarian democracy—would be a tragic statement
about the priorities of the American political system.

33

IV. FELONY DISENFRANCHISEMENT AS A POLITICAL ISSUE

CHAPTER IV
Felony Disenfranchisement as a Political Issue
In the past five years, various political movements have taken an interest in felony
disenfranchisement laws, both for their effects on individual members of society and for the
damage they cause to society as a whole. In today’s climate of interest-group lobbying around
increasingly specific issues, felony disenfranchisement stands at the intersection of a number of
powerful political forces. Four such categories of advocacy movements are the prison reform
movement, the social justice and democracy movement, the civil rights movement, and the
election reform movement. Organizations, lawmakers, and independent activists working
under the banners of all four of these political movements have helped to shed some light on
this issue, and yet each movement faces particular challenges when addressing this issue. The
result is that none yet has been able to make felony disenfranchisement its number one priority.

A. Disenfranchisement as a Prison Reform Issue
In the 1960s, the prison reform movement was reborn when individuals closely tied to
the incarceration system empowered themselves to assert their grievances about the prison
system. In large part, these activists patterned their movement after that of the civil rights
activists. These early prison reformers first coalesced and then organized politically at
grassroots levels.cxxvi The movement has evolved over the past forty years, and today
intellectuals and activists in the field come from all walks of life, from ex-felons and family
members of prisoners to human rights-oriented students at the nation’s elite universities, most
of whom have no personal ties to the incarceration system. From the outset, this political
movement has carefully defined its chief adversary as the ineffective criminal justice system
and particularly the incarceration system itself; the movement’s activists are committed to
challenging and reforming the structures in place, at times even advocating their complete
destruction. One group, the Critical Resistance Organization, was founded in 1998 by activist
and author Angela Davis for the purpose of “resisting and transforming” the Prison Industrial
Complex. This group uses as its mantra the lines from escaped political prisoner Assata
Shakur’s “Affirmation”: “And, if I know anything at all,/ it’s that a wall is just a wall/ and
nothing more at all./ It can be broken down.”cxxvii

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IV. FELONY DISENFRANCHISEMENT AS A POLITICAL ISSUE

Because the prison reform movement easily accepts and promotes a critical examination
of the governmental structure, it provides a climate where the felony disenfranchisement cause
is easily accepted. From CURE (Citizens United for Rehabilitation of Errants), an international
advocacy group for prisoners and their families, to the D.C.-based Sentencing Project, where
some of the preeminent research reports on the status of the prison system are conducted,
prison reform organizations are not strangers to confronting the American political system.cxxviii
Marc Mauer of The Sentencing Project characterizes the current incarceration system as
benefiting elected officials. The short-term solution of finding and punishing easy scapegoats,
such as low-level drug traffickers in low-income urban neighborhoods, is especially appealing
for politicians subjected to elections every two years who bear the burden of proving their
effectiveness in a short time period. This skepticism of government officials’ political motives
fosters a critical analysis of felony disenfranchisement laws. For like the War on Drugs
campaign, these “get tough” policies are secure within the legislative structure largely because
of the political benefits reaped by those making the laws.cxxix Prisoner advocate Carl Upchurch
defined felony disenfranchisement as an issue of the states working in their own interests to
control power instead of functioning democratically for the benefit of their citizens.cxxx Again,
this skepticism and critical lens in addressing governmental structures provide a natural setting
for addressing felony disenfranchisement laws.
Furthermore, the efforts to reform felony disenfranchisement laws fall clearly within the
objectives of prison reform organizations. Two main purposes of prison advocacy groups are
to expose the corruption, abuse, and discriminatory practices of the incarceration system and to
empower those locked within the system both personally and politically.cxxxi The call to end
disenfranchisement laws serves both purposes. Statistical reports and opinion pieces written by
prison reformers on felony disenfranchisement laws do much to influence the public view
about the injustice present within certain components of the criminal justice and incarceration
systems. As Christine Thompson decries in a recent Prison Issues article, “[The purpose of
revoking voting privileges] is to inflict unwarranted harm on a person who has paid his or her
debt and is trying to rejoin the community.”cxxxii Here she uses felony disenfranchisement to
depict a governmental structure in opposition to the general welfare of the prisoner. Fighting
felony disenfranchisement laws also falls under the rubric of delivering social justice to those
incarcerated within the prison system. Politically speaking, no single issue can be more
effective in empowering prisoners and ex-felons than restoring their voting rights.
Additionally, prison advocates treat voting as a potentially rehabilitative act which could
cultivate not only responsibility but humanity within a system which often lacks both. Thus,

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IV. FELONY DISENFRANCHISEMENT AS A POLITICAL ISSUE

the political issue of ending felony disenfranchisement practices appeals to those fighting for
the just and humane treatment of prisoners.
In essence, felony disenfranchisement laws are so detestable to many prison reformers
because they deny the basic aspect of American citizenship and democratic identity to
individuals on the basis of their criminal records, violating the civil rights of prisoners and exfelons. Constitutionally speaking, these questions of prisoners’ rights have provoked murky
answers through post-bellum American history. As scholar Joy James pointed out, the human
rights of prisoners in the United States are theoretically protected under the International
Covenant on Civil and Political Rights, yet in 1998 the United States decided to exempt itself
from complying with the standards set forth in this international contract.cxxxiii In fact, written
into the Thirteenth Amendment, the very legal action which freed the slaves, was a loophole:
slavery and involuntary servitude were deemed permissible “as a punishment for crime whereof
the party shall have been duly convicted.” Thus, from the outset, the case for the protection of
the civil rights, voting rights, and indeed basic human rights for felons has stood on tenuous
constitutional ground.cxxxiv Today, prison advocates attempt to appeal to the American sense of
humanitarianism and social justice in protecting the rights of incarcerated and released felons
when the laws fail to offer protection.
And yet, for all of the ways in which felony disenfranchisement laws fall neatly in line
with many prison reformers’ objectives and goals, the issue is problematic in its appeal. For
prison advocates, priority issues often target critical life or death matters such as the
discriminatory assignment of the death penalty or harsh criminal justice practices that add years
onto sentences, such as mandatory minimum laws. Other reformers focus on equally urgent
issues of poor treatment inside prisons, from the violence endured by inmates at the hands of
prison guards and fellow prisoners to the often inhumane conditions of prison-employment
projects.cxxxv In this context, the issue of felons being stripped of the vote, while certainly
harmful to the psyche on some level, necessarily elicits less urgent attention than the physical
and emotional abuse suffered daily by many prisoners.
Furthermore, the movement’s skeptical view of the government, which makes it so
prone to accept the cause of felony disenfranchisement, also poses some problems for this
issue. This skepticism can lead to an intrinsic lack of interest in an issue that benefits felons
only by expanding their rights within a system which is viewed as fundamentally flawed. Exfelon Carl Upchurch, who works in prisons professionally to rehabilitate inmates, admitted that
many felons are apathetic to a political process which they perceive as not only indifferent, but
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IV. FELONY DISENFRANCHISEMENT AS A POLITICAL ISSUE

purposely hostile to them.cxxxvi Fighting for felon voting rights is based on confidence in the
democratic workings of the American system, and the belief that one’s vote can effect just
change in the system. But many felons and prison advocates lack this faith. In addition,
because the movement is essentially grassroots, it lacks a focus on national policy. Even
organizations such as The Sentencing Project, which are policy-focused, believe in the
importance of pairing lobbying efforts with grassroots organizing.cxxxvii In this climate, felony
disenfranchisement is rarely a major concern of prison reform groups, especially on the
grassroots level where activists tend to have the closest connections to felons themselves.
Increasingly, scattered through the movement, however, are reformers who see a
broader vision of how prisoners and their grievances affect and are affected by the greater
democratic flaws in our system. These outspoken advocates address the disenfranchisement
issue within broader reform agendas. As Upchurch declared, “prison reformers would be
missing the point if they did not give this issue priority.”cxxxviii

B. Disenfranchisement as a Democracy Issue
In the words of Marc Mauer, “This is not just a criminal justice issue, but one of basic
democracy.”cxxxix From organizations devoted to promoting pure democratic principles
domestically to those specializing in international human rights, social justice groups are
building support for the campaign to end felony disenfranchisement laws. Some of the first
efforts to publicize the impact of felony disenfranchisement came from a partnership of The
Sentencing Project with the internationally-known Human Rights Watch. Both organizations
recognized the importance of embracing this issue as a way to promote equality in the
American democratic system. On the legal front, New York University’s Brennan Center for
Justice has taken the lead in its outspoken statements condemning disenfranchisement. Staff
attorneys have publicly questioned the rationality and civic purpose of these laws, while
simultaneously probing their constitutionality.cxl
As a whole, one might characterize the diverse set of organizations that define the social
justice, democracy, and human rights movements as united in their common struggle toward
social equity and aiding the disempowered. Clearly, felony disenfranchisement laws qualify as
an appropriate target for these groups. For Dēmos, a recently founded advocacy organization
whose mission is to “strengthen democracy and create more broadly shared economic
prosperity for the 21st century,” attacking felony disenfranchisement is a top priority. As an

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IV. FELONY DISENFRANCHISEMENT AS A POLITICAL ISSUE

organization which promotes the development of an equitable democracy, Dēmos places an
emphasis on the importance of fair election practices as the starting point for a just democratic
system. In a recent American Prospect article, Dēmos president Miles Rapoport called felony
disenfranchisement “one of the great exclusions of civic life in the United States.”cxli As
another example of a political organization supporting this cause, the Association of State
Green Parties has recently come out in strong opposition to felony disenfranchisement laws.
For many social justice groups, including the Green Party, felony disenfranchisement laws are
closely linked with discriminatory criminal justice practices, such as the War on Drugs, which
they have long held in contempt.cxlii
Some groups with international scope, such as Human Rights Watch, lend a degree of
international solidarity to the issue. The United States is the only democracy to penalize its
felons with disenfranchisement after a sentence has been completed. As mentioned before,
some states’ disenfranchisement laws contradict the United Nations’ International Covenant on
Civil and Political Rights, Assembly resolution 2200 A (XXI) of December 16, 1966, which
mandates in Article 25 that:
Every citizen shall have the right and the opportunity, without any of the distinctions
mentioned in article 2 (race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status) and without unreasonable
restrictions: . . . b) to vote and to be elected at genuine periodic elections which shall be
by universal and equal suffrage and shall be held by secret ballot guaranteeing the free
expression of the will of the electors.
The resolution allows for curtailment of voting rights only so long as these are “reasonable
restrictions,” for instance if a judge specifically confers the penalty of disenfranchisement as
part of the sentence for a particular crime. State laws that disenfranchising all felons,
regardless of their crimes, have been deemed outside the definition of “reasonable.”cxliii Not
only do many nations allow incarcerated felons to vote (the Czech Republic, France, Israel,
Japan, Kenya, Peru, Poland, Romania, and Zimbabwe), but some nations such as Germany
even mandate that prison authorities encourage inmates to exercise their right to vote and
coordinate their voting procedures.cxliv In an amazing democratic display, by a vote of the
Constitutional Court of South Africa on April 1, 1999, that country became the most recent
nation to abolish voting restrictions on incarcerated felons. The court’s decision read, “the vote
of each and every citizen is a badge of dignity and personhood. Quite literally everybody
counts.”cxlv

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IV. FELONY DISENFRANCHISEMENT AS A POLITICAL ISSUE

For social justice activists and organizations working on democracy issues, the
international community’s opposition to felony disenfranchisement laws provides support.
This is exceedingly important given the hostile response with which many of these domestic
social justice organizations have been met by the mainstream political elements of the U.S.
policy sphere. Felony disenfranchisement laws have been invoked as a blight on our
democratic ideals by various politicians, academics, journalists, and activists, and yet the
majority of American policymakers and the general public are only just beginning to listen. In
fact, there is a more favorable political resonance in labeling felony disenfranchisement a
“democracy issue” than a “prison reform issue.” For even politicians conservative on criminal
and social justice issues should be reluctant to take a hard-line public stand against the
principles of expanding democracy and supporting voting rights.
Opposition to felony
disenfranchisement laws stands to gain from identifying it as a democracy issue.

C. Felony Disenfranchisement as a Civil Rights Issue
In both legal and historical terms, felony disenfranchisement is perhaps most
compelling as an issue of civil rights—that is, felony disenfranchisement’s silencing of a
disproportionate number of black voices at the ballot box. A long list of racially-biased
practices should have been protected by the Fifteenth Amendment, such as poll taxes, literacy
tests, grandfather clauses, white primaries, and racial gerrymandering. While the anti-poll-tax
movement was building over many years, the poll tax wasn’t abolished until passage of the 24th
Amendment in January 1964. And in many ways, the Civil Rights Act of 1964 and the Voting
Rights Act of 1965 were so magnificent in their impact because they challenged various ways
in which the Fifteenth Amendment had been circumvented. The very movement that won this
battle against racial discrimination almost forty years ago has begun to take an interest in the
laws that are depleting the voting strength of today’s communities of color. In literature and
press releases, the civil rights and voting rights struggles are commonly invoked by civil rights
groups in decrying the effects of felony disenfranchisement laws. In an essay written for
Mother Jones magazine, civil rights leader Jesse L. Jackson, Sr. directly asserted that current
criminal justice policies and the incarceration system have “rolled back” the successes of the
civil rights movement.cxlvi Law professor Jamin B. Raskin references the “blood and sweat of
civil rights activists in the South” as he discusses the past work of the movement to establish
universal suffrage, and the futility of these heroic efforts in light of the current conviction and
incarceration rates in communities of color.cxlvii

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IV. FELONY DISENFRANCHISEMENT AS A POLITICAL ISSUE

Especially since the 2000 presidential election, many organizations promoting civil
rights have publicly criticized the effects of these laws. The USCCR, in a voting registration
report released after Election 2000, claimed that felony disenfranchisement laws:
necessarily [deplete] a minority community’s voting strength over time by consistently
placing a greater proportion of minority than majority voters under a voting disability at
any given time. For this reason, the effects of the intentional discrimination that
originally motivated felony disenfranchisement still linger.cxlviii
Both Congressmen John Conyers (D-MI) and Earl Hilliard (D-AL), civil rights advocates on
Capitol Hill, refer to felony disenfranchisement as a primary civil rights issue. Hilliard’s
Legislative Assistant Jack Zylman stresses that more than a prison reform or democracy issue,
felony disenfranchisement is a blight on the history of civil rights successes throughout the
second half of the twentieth century.cxlix
Civil rights advocacy groups have recently begun to more emphatically and publicly
condemn felony disenfranchisement. The NAACP, which released a ten-point election reform
agenda in July 2001, included an end to ex-felon disenfranchisement as point ten.cl Even
before this formal announcement, the NAACP issued a statement declaring ex-felon voting
rights to be a top legislative priority in April 2001. In the press release, President and CEO
Kweisi Mfume asserted that as a society, “we should be encouraging ex-felons to vote, not
prohibiting them.”cli Especially in the wake of Election 2000, the NAACP has become a more
outspoken critic of felony disenfranchisement laws, noting especially their disparate impact on
black males. Yet, civil rights organizations as a whole have been slow to act aggressively on
this issue. Perhaps this lukewarm acceptance of the felony disenfranchisement issue stems
from a reluctance to admit to a link between felons and the black community. Author Earl
Ofari Hutchinson has lambasted civil liberties and civil rights organizations for taking, as he
calls, a “hands off stance” on the issue of felony disenfranchisement for fear of reinforcing
misconceived notions of an intrinsic connection between criminal nature and the black
community.clii
In recent years, civil rights debates have centered on affirmative action, welfare reform,
and school desegregation. It is easy to understand why many civil rights organizations are
hesitant to bring up a prison issue which focuses on the rights of convicted felons. Due to the
stereotypes of criminals as people of color, this reluctance to embrace prisoners’ rights issues
seems a logical strategic defense.cliii Yet, the result is the loss of a potentially powerful political

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IV. FELONY DISENFRANCHISEMENT AS A POLITICAL ISSUE

ally for those working to reform felony disenfranchisement laws. In a sense, Election 2000 has
served as a turning point on this issue for civil rights groups, with organization leaders
becoming increasingly vocal. They are now invoking the voting rights triumphs of the past
century to advocate repeal of the laws that are devastating communities of color and affecting
elections on the national level. With its proud history, the civil rights movement has much to
offer those fighting to felony disenfranchisement laws. The sooner this is realized by both civil
rights organizations and those leading the campaign against disenfranchisement, the sooner the
effective political battle to end these discriminatory practices will begin.

D. Disenfranchisement as an Election Reform Issue
Even before November 7, 2000, strong political movements were underway which
addressed various faulty components of the electoral system, from the corruption of big money
campaign contributions to chronic redistricting concerns to challenges to the electoral college
system. Since the chaos of the November election, however, the urgency, tone, and scope of
these reform efforts have changed dramatically. In the words of American Civil Liberties
Union (ACLU) President Nadine Strossen, in the post-Election 2000 era “it is simply no longer
possible for the nation to ignore the deep, disturbing, and discriminatory flaws in the electoral
system that have now been revealed to all of us in excruciating detail.”cliv In the wake of the
election, the government, as well as private organizations, has convened numerous groups to
assess the irregularities in the 2000 election. This has created a climate in which issues of
election reform are being given unprecedented emphasis. Media sources from The Wall Street
Journal to The Nation have lavished attention on election reform issues.
As reported by the Ford/Carter Commission, the 2000 election “shook American faith
in the legitimacy of the democratic process,” a faith which arguably has been diminishing for
decades, as is evinced by ever-rising voter apathy rates. The Ford/Carter Commisson found
that 24 percent of Republicans, 40 percent of Independents, and 75 percent of Democrats
believed that the electoral process was conducted unfairly in the year 2000.clv While certainly
much of this dissatisfaction stemmed from the technical errors on ballots and other purely
structural failings of the system, the election was remarkable in highlighting racially
discriminatory practices, including states’ felon disenfranchisement practices. In particular,
Election 2000 has brought the formerly obscure issue of ex-felon disenfranchisement onto the
agendas of organizations and political leaders from the NAACP to former Presidents Carter and
Ford.

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IV. FELONY DISENFRANCHISEMENT AS A POLITICAL ISSUE

According to Marc Mauer, the 2000 election brought attention to felon and ex-felon
voting rights even before the Election Day debacle; in Florida, predicted to be an important
battleground for electoral votes, laws permanently stripping felons of the vote were under
attack before the tallying began.clvi After the election, these disenfranchisement laws were even
more carefully scrutinized as to their intended purpose and their disparate effect. The USCCR
determined in its “Report on Voting Irregularities in Florida During the 2000 Presidential
Election” that the unlawful purging of ex-felon lists “fell most harshly on the shoulders of
African Americans.” Throughout the state, the ratio of rejected black votes to white votes was
almost nine to one.clvii In fact, David Bostis, senior research associate at the Joint Center for
Political and Economic Studies, believes that the felon list purges were designed with the
specific intention of discriminating against black voters. In Florida’s Hillsborough County,
where 11 percent of the voting age population is black, 54 percent of those wrongly placed on
felon purge lists were black voters.clviii The USCCR came down harshly on the Florida election
proceedings, chastising election officials for “[failing] to fulfill their duties” and declared that
overall, the election was riddled with “injustice, ineptitude and inefficiency.”clix
In the process of condemning Florida’s misuse of the ex-felon purge lists, the ACLU
and many other organizations have also focused on the inherently discriminatory and
undemocratic practice of disenfranchising Florida’s felons and ex-felons.clx The numerous
studies investigating the exact margin of victory in Florida have found that the Florida
Secretary of State’s official count of 537 vote margin actually errs on the high side; this speaks
directly to the significance of the hundreds of thousands of ex-felons disenfranchised in the
state, who far outnumber the undervotes and overvotes in the Florida election.clxi By the time
of the Bush v. Gore decision, certain media sources had begun to train the nation’s attention on
felony disenfranchisement laws and their impact, thus launching an unprecedented level of
awareness of former felons’ voting rights.
For election reform in general, and for the fight to end felony disenfranchisement laws
specifically, this has been a critical time. Former President Carter stressed this urgency during
a panel of the Ford/Carter Commission: “I think if you would have brought up this same kind
of discussion four years ago, there would have been very little interest. I think now is the time
when there might be enough focus to actually do something. I would guess that four or eight
years in the future, that opportunity might have dissipated again.”clxii Put succinctly by Jamin
B. Raskin, the current time is a “constitutional moment,” a small window of opportunity when
the American public actually believes in the necessity of legal reform.clxiii Unlike prison
reform, election reform is a timely issue about which the American public and its elected
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IV. FELONY DISENFRANCHISEMENT AS A POLITICAL ISSUE

officials have a vacillating sense of urgency based upon election cycles and election scandals.
Election 2000 stands as a landmark event to spur interest in election reform issues. The
election has afforded reform advocates the opportunity to address the many structural flaws that
have long plagued the electoral system.
For those reformers specifically interested in felony disenfranchisement, one effective
way to use the momentum of the Florida 2000 fiasco has been to join the patriotic and
democratic call for all Americans to vote. From partisan advocacy groups to Representatives
fearful of losing their elected seats, many influential people have high stakes in preventing
persons who are likely to vote “wrong” from voting at all. Many officeholders, noting a felon’s
likely race and socioeconomic status, categorize his voting preferences as “wrong.” As
Professor Boone pointed out during a Ford/Carter Commission panel, all successful reform
policy must first be grounded in a philosophy that idealizes full electoral participation of the
American populace.clxiv Thus, as an election reform issue, repealing felony disenfranchisement
laws transcends the mechanics of voting procedure to embody an important democratic
principle.
Advocates of ending felony disenfranchisement are beginning to take advantage of a
natural alignment with other election reform policies similarly based in these same
fundamentally democratic notions of full electoral participation. Today, voting reform takes
the shape of efforts to improve and equitably distribute voting equipment, establish stronger
federal standards for localities to effectively conduct elections, and end undemocratic structural
components of elections such as the electoral college and winner-take-all districts. Those
arguing against felony disenfranchisement laws have much to gain from the potential solidarity
of the vast network of organizations and advocates focused around similar causes.clxv Election
reform advocates seem increasingly ready to accept felon voting rights as a priority. The
Ford/Carter Commission, USCCR, House Democratic Caucus, ACLU, other multi-issue
advocacy groups, and numerous journalists who have translated Election 2000 problems into
advocacy for the end to felony disenfranchisement indicate the increasing readiness of election
reform advocates to accept the importance of felon voting rights.clxvi
However, this coalition-building may not be easy. Unlike the prison reform and social
justice movements, election reform has been accepted by elected officials and is readily
acknowledged by the government as a subject worthy of attention. Thus, much of the work on
this issue takes place on Capitol Hill, where coalitions of advocacy organizations are pressuring
the 107th Congress to address various concerns in developing and reworking legislation. One
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IV. FELONY DISENFRANCHISEMENT AS A POLITICAL ISSUE

such coalition in support of H.R. 1170/S. 565, the “Equal Protection of Voting Rights Act,”
was led by the NAACP and was composed of a diverse set of organizations ranging from the
AFL-CIO to the American-Arab Anti-Discrimination Committee to Americans for Democratic
Action. clxvii Of the many policy points these various organizations hoped to make with authors
of the legislation, ending felony disenfranchisement was not included. Even though as
individuals many of the S. 565 coalition members support ex-felon voting, the consensus was
that attaching this issue to other election reform issues might alienate moderates in Congress.
The fear of controversy surrounding prison issues creates a hostile climate for introducing
felon voting rights within election reform bills.clxviii Both Keenan Keller, Democratic Counsel
to the House Judiciary Committee and Jack Zylman, Legislative Assistant to Representative
Hilliard, two House staff members working on bills ending felony disenfranchisement,
expressed opinions that the issue may be a better sell to Members of Congress as a prison
reform or democracy issue than as an election reform issue.clxix
Constitutional law professor Jamin B. Raskin advocated a different legislative course of
action in his August 27, 2001 American Prospect article. He picked up on Representative Jesse
Jackson, Jr.’s (D-IL) proposed voting rights constitutional amendment that would, among other
functions, put an end to disenfranchisement laws affecting ex-felons. Raskin disputed the
intrinsically controversial nature of the felon voting issue. As an issue of “universal suffrage
and democracy,” Raskin placed ex-felon voting in line with issues such as federal
representation for Washington, D.C. residents and equalizing voting equipment across all
districts (all far from generally popular in Congress). clxx He may be overly optimistic in
discussing the length to which Congress will go toward making the electoral system equitable.
But in his article, Raskin demonstrates the benefits to felony enfranchisement advocates of
winning a place for this issue on election reform agendas. As a political issue, election reform
has captured the attention of the American voting public in the past year, and has also become a
big concern for policymakers. In the end, however, it is elected officials who have the power to
legislate an end to felony disenfranchisement.
Currently, felony disenfranchisement is gaining increasing prestige and popular support
as an electoral reform issue, more so than strictly as a prison reform issue, a basic democracy
issue, or a civil rights issue. Especially in organizations such as the National Coalition on
Black Civic Participation, with its dual-agenda of civil rights and election reform, and for the
many commissions and organizations that have only in the last year developed electoral reform
platforms, ending ex-felon disenfranchisement stands firmly as a priority, albeit rarely a first or

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second priority.clxxi Instead of being categorically ignored by advocates of election reform,
felony disenfranchisement is now being included among other issues as an area of concern,
quite a step forward for the campaign against felony disenfranchisement laws.

45

V. CURRENT PROGRESS ON THE LEGISLATIVE FRONT

CHAPTER V
Current Progress on the Legislative Front
The felony disenfranchisement issue has begun to gather steam on interest groups’
lobbying platforms, and also on legislative agendas around the nation. Legislative progress,
however, has been slow. Thus far, federal bills have received limited support due to hesitation
on the part of politicians. Unlike past movements to extend the franchise to women or to 18
year-olds, felons are not a natural constituency which can easily organize and mobilize itself
into a lobbying effort. Jack Zylman, Legislative Assistant to Representative Hilliard (D-AL), a
Congressman who has introduced legislation on felony disenfranchisement, admits that
Hilliard’s constituents have not been vocal on the issue.clxxii Disenfranchised felons are not a
politicized group of individuals in the same sense as other special-interest groups.
Furthermore, officeholders feel little personal responsibility to this group—felons are highly
disconnected from the political sphere.clxxiii This ambivalence toward re-enfranchisement
efforts holds true across party lines, for as Jimmy Carter described in a Federal Election
Reform panel:
A safe and secure Congress seat or House seat in the Legislatures is a very valuable
thing, and to open up the Pandora’s box for new registrants is not always an easy thing
to sell. I was surprised to find that some of the most liberal Democrats in the Congress
were the ones that basically opposed the efforts we made . . . to liberalize the means by
which people could register.clxxiv
Although this reluctance to promote full electoral participation is widespread among
elected officials, Manza and Uggen’s sociological report demonstrates the degree to which this
issue is perceived in partisan terms. Since disenfranchised ex-felons are believed to be
overwhelmingly in support of Democratic candidates, Republicans feel a political stake in
maintaining these voting restrictions.clxxv In discussing the political uses for his report, Uggen
admitted that both Democrats and Republicans are reluctant to cite his statistical predictions.
Republicans fear that bringing attention to the report will spur Democrats into action to reclaim
what are now lost votes. Democrats fear that Republican knowledge of such statistical data
will steel their resolve to prevent these laws from ever leaving the books.clxxvi In the post-1965
Voting Rights Act era, government officials have ostensibly accepted the responsibility for
supporting full electoral participation of all eligible Americans. And yet, because political
candidates are acutely aware of the role that racial, socioeconomic, and other factors play in
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V. CURRENT PROGRESS ON THE LEGISLATIVE FRONT

voting preferences, many candidates in Election 2000 attempted to manipulate this information
to their benefit. In Arkansas, the Republican governor bemoaned on national radio in the preelection hours that Democrats were busing black voters in to the polls, “as if they were cattle in
a truck.”clxxvii It is difficult to fathom how legislation to enfranchise large numbers of black
voters can ever be enacted in a climate where Arkansas’ leading government official can
publicly begrudge electoral participation of a racial subset of his states’ citizens.
And yet, a trend has begun in Connecticut and New Mexico which brings hope to those
working for legislation to end felony disenfranchisement laws. By focusing on the universal
theme of promoting democracy, civil rights advocates in the Connecticut State Legislature
pushed through—with Republican support—a bill restoring voting rights to probationers. The
bipartisan bill was signed into law in May 2001 by Connecticut’s Republican Governor.clxxviii
Similarly, New Mexico’s Republican Governor is breaking with traditional GOP tenets in his
criticisms of criminal justice policies, particularly drug laws, which contribute to skyrocketing
incarceration rates. Even though these high numbers of incarcerated felons may contribute to
Republican electoral power in the state, Governor Gary Johnson publicly embraces drug
treatment programs and other such “liberal” criminal justice policies as more humane and
economically-sound approaches to combating drug use.clxxix His ideas about reform show an
evolution of the traditionally Republican “tough on crime” stance. This gives hope that as
happened in Connecticut, there is the potential for elected officials to look beyond their partisan
political interest and support the policies which most benefit society as a whole and,
particularly, its most disadvantaged members. It is with this hope that legislators on both the
state and federal levels have introduced bills to effect change in current ex-felon
disenfranchisement policies.

A. Efforts on the Federal Level
At the federal level, there is some optimism about potential progress in the current
Congress. A handful of committed Representatives and Senators are currently attempting to
effect change via legislation dedicated solely to ending felony disenfranchisement laws.
Longtime civil rights leader Representative John Conyers (D-MI) has led the way, relentlessly
introducing legislation to end ex-felon disenfranchisement ever since the 103rd Congress in
1994. The most successful of his attempts thus far occurred in 1999, when the Conyerssponsored Civic Participation and Rehabilitation Act of 1999 (H.R. 906) garnered 37 cosponsors and was referred to the House Judiciary Committee and then the Subcommittee on the

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Constitution, where a hearing was held in October of 1999. The Act rests on the “basic
concepts of fundamental fairness and equal protection,” and cites the rehabilitative properties
of extending the franchise to ex-offenders. Its singular purpose is to protect the voting rights of
citizens from being obstructed or denied on the basis of a felony conviction, excepting those
currently incarcerated. Within the text of the bill are statistics showing the numbers of citizens
disenfranchised, references to the inconsistency of the “crazy-quilt” of laws across the states,
and evidence of the disproportionate numbers of male black and Hispanic citizens affected by
the laws.clxxx Although this bill found organizational support from such influential political
groups as the ACLU, NAACP, and Human Rights Watch, it died in committee before reaching
the House floor.clxxxi
Already in the 107th Congress four bills have been introduced directly addressing the
felony disenfranchisement issue. Representatives Danny Davis (D-IL), Earl Hilliard (D-AL),
Maxine Waters (D-CA), and Jesse Jackson, Jr. (D-IL) have each crafted bills to end ex-felon
disenfranchisement, albeit utilizing varying approaches. The first bill to be introduced was
Representative Davis’ Constitutional Protection of the Right to Vote Act, which has languished
in the Subcommittee on the Constitution since April 2000. The wording of this bill carefully
defines the privilege of voting as “the most basic constitutive act of citizenship.” After briefly
reviewing disenfranchisement statistics, and highlighting the disparate effect on African
Americans, the bill qualifies that although states have the prerogative to establish voting
qualifications, they may not curtail the right of citizens to vote.clxxxii
The Voter Registration Protection Act of 2001, co-sponsored by Representative Hilliard
and 18 colleagues, explicitly prohibits states from denying individuals convicted of federal
crimes their voting rights in federal elections, excepting those felons currently incarcerated.
Hilliard’s bill neither mentions disenfranchisement statistics and the disparate effect on black
citizens, nor principles of justice and equality.clxxxiii Perhaps the fact that this bill was drafted in
direct response to the problems of the 2000 election explains its trained focus on voting rights
issues without delving into criticisms of criminal justice policies or racial biases inherent in
incarceration rates.clxxxiv Like Representative Davis’ legislation, this bill has been largely
ignored since its referral to the Judiciary Committee.
In Representative Waters’ Voting Restoration Act, the focus once again is exclusively
on the right of ex-felons to vote in Federal elections, however after detailing many of the same
statistics as those in Representative Conyers’ 1999 bill, Waters also invokes drug policies and
their effects on incarceration rates. In her findings Waters asserts that these disenfranchisement
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laws should be addressed precisely because of their impact on “minority communities.” She
also provides for extensive enforcement procedures for the states, including a grant program to
help states accomplish re-enfranchisement. With no co-sponsors and little support, there has
been no action on this bill since its referrals to the House Judiciary and Administrative
Committees.clxxxv
The most creative attempt to address this issue is Representative Jesse Jackson, Jr.’s
joint resolution proposing an Amendment to the United States Constitution regarding the right
to vote. This initiative, part of a larger Constitutional Amendment strategy of attacking various
issues from health care to abortion, was introduced in time for the one-year anniversary of
Election 2000. The Amendment would simply give all American citizens 18 years of age and
older the right to vote. The only limitation permitted would be a “narrowly tailored” regulation
established by the federal or a state government for the express purpose of “[producing]
efficient and honest elections.” The mention of ex-felons is not necessary, for this
Constitutional Amendment would effectively block a state’s ability to disenfranchise felons,
and in its lack of specificity, this bill creates the potential for universal appeal. Despite this
creative strategy, the bill has yet to gain any cosponsors, and has received little attention in the
Judiciary Committee to which it has been referred.clxxxvi
The best chance for successful legislation to reform felony disenfranchisement laws will
most likely be the revised version of Representative Conyers’ bill from the 106th Congress.
This bill is to be unveiled in the 2002 Congressional session. As Ranking Member of the
House Judiciary Committee, Representative Conyers is in a prime position to rally support for
his bill and to draw attention to the felony disenfranchisement issue.
In the meantime, felony disenfranchisement has come up during the Senate’s debate of
election reform in early 2002. On February 14, during the Senate’s consideration of Senator
Christopher Dodd’s (D-CT) Election Reform bill (S. 565), Senator Harry Reid (D-NV)
proposed a bipartisan amendment (S. Amdt. 2879) to restore voting rights to ex-felons for
federal elections. The impassioned debate in support of the amendment was lead by Reid and
Senator Arlen Specter (R-PA), with Senator Russell Feingold (D-WI) also pledging his strong
support. Proponents of the legislation were countered, however, by traditional conservative
rhetoric: Senator Mitch McConnell’s (R-KY) invoked states’ rights concerns and Senator Jeff
Sessions’ (R-AL) admitted that, “as a prosecutor for 15 years, I wonder how those people I
helped put in the slammer feel about me. I do not care about them voting on my election.” In
this way, Sessions exhibited the exclusionary tendency about which Professor Boone warned
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during a Ford/Carter Commission hearing—that many of our elected officials do not believe
that voting should be a right bestowed to all Americans, but that voting should be a privilege
bestowed only upon those who have proven themselves worthy.clxxxvii
The opposition to Senator Reid’s amendment, however, was not limited solely to the
GOP. In an effort to ensure the success of his Election Reform bill, Senator Dodd voiced his
opposition to the amendment, stating his action was, “not because I disagree with what [Senator
Reid] is trying to do, but I think this is not the right place for us to be dealing with that idea.”
Although the amendment did ultimately fail 31 to 63, Senator Reid’s proposal and the dialogue
which ensued on the Senate floor mark a great victory for those fighting to reform felony
disenfranchisement laws. Senator Dodd’s opposition was, in fact, indicative of the greatest
hurdle for the movement to end felony disenfranchisement. In order for this issue to move
from the fringe into the center of the political dialogue, proponents of reform must first win
over those in powerful positions—be they elected officials or policy organizations—who
support the cause, yet are not willing to compromise their greater agendas to prioritize the
felony disenfranchisement issue.clxxxviii

B. The Constitutional Legitimacy of Federal Legislation
Despite the potential for progress, a troubling question looms over all the
aforementioned legislative actions: Is it the federal government’s place to be making legislative
decisions regarding disenfranchisement of felons? Many Members of Congress fear the answer
is no, further eroding tentative support for legislation. The question of constitutionality was
directly addressed during the Subcommittee on the Constitution hearing in October 1999 on
Representative Conyers’ bill, H.R. 906. Congressional support for the substance of the bill
appeared strong during this hearing, but several legal experts argued convincingly that the bill
was not constitutional. Legal scholars disagree on interpretations of relevant sections of Article
I and the Fourteenth and Fifteenth Amendments. These interpretations differ on whether the
federal government has the power via legislation to prohibit states from disenfranchising
felons, since the Constitution grants states the right to determine voter qualifications. This
leaves proponents of federal legislation to prove that, due to the extenuating circumstances of
felony disenfranchisement laws (possibly their discriminatory intent), it is in fact constitutional
for the federal government to intervene.

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The Constitution states in Article I, Section 2, Clause 1, that voters in Congressional
elections, and by extension all federal elections, “shall have the Qualifications requisite for
Electors of the most numerous Branch of the State Legislature.”clxxxix This clearly gives
jurisdiction for defining voter qualifications to the states. And yet, this power is restricted by
the Elections Clause, Article I, Section 4, Clause 1, which declares that “the Times, Places, and
Manner of holding Elections for Senators and Representatives, shall be prescribed in each state
by the Legislature thereof; but the Congress may at any time by Law make or alter such
Regulations, except as to the Places of chusing [sic.] Senators.”cxc Thus, the crucial question
arises of whether extending the vote to convicted felons is technically a function of the “times,
places, and manner of holding elections;” if so, then as Congress has a Constitutional mandate
to create and alter such electoral regulations, a federal law barring states from disenfranchising
felons is indeed legitimate.
During the Subcommittee on the Constitution hearing on H.R. 906, several related and
interesting constitutional points were discussed. Gillian E. Metzger, Staff Attorney at the
Brennan Center for Justice at NYU’s School of Law, argued in favor of H.R. 906’s
constitutionality. Of her three-pronged argument for H.R. 906, however, her weakest rationale
was the one grounded in an interpretation of Article I, Section 4 as authorizing Congressional
action. In her argument, Metzger broadly defined Congressional power with regard to
regulating the “Times, Places, and Manner of elections,” citing Oregon v. Mitchell, 400 U.S.
112 (1970). She also based her position on the Supreme Court’s decision in Tashijan v.
Republican Party, 479 U.S. 208 (1986), in which the Court found that “far from being a device
to limit the federal suffrage, the Qualifications Clause was intended by the Framers to prevent
the mischief which would arise if state voters found themselves disqualified from participation
in federal elections.” Thus, although the Qualifications Clause of Article I, Section 2 clearly
gives the right to determine voting qualifications to the states, this clause need not be read as
prohibiting Congress from altering these qualifications, particularly in the case of a state’s
exclusive voting regulations.
Todd F. Ganziano, Senior Fellow in Legal Studies at The Heritage Foundation, spoke
strongly in opposition to H.R. 906, rejecting the idea that voting qualifications legitimately fall
under the protection of “Times, Places, and Manner.” He, along with fellow panelists Roger
Clegg, Vice President and General Counsel to the Center for Opportunity, and Viet D. Dinh,
Associate Professor of Law at Georgetown University Law Center, also referred to Oregon v.
Mitchell in making a case that changing voter qualifications is outside of federal jurisdiction.
As these three conservative legal scholars described, Oregon involved the federal law allowing
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18 year-olds to vote in federal elections. Although this law was indeed upheld by a narrow
five-four vote, only Justice Hugo Black cited Article I, Section 4 in his decision.
The
following year the privilege to vote was definitely guaranteed to 18 year-olds by ratification of
the 26th Amendment. The other four justices voting in favor of the law relied upon antidiscrimination mandates, though these readings of federal enforcement authority have since
been overturned by two other Supreme Court decisions, namely Richardson v. Ramirez, 418
U.S. 24 (1974) and City of Boerne v. Flores, 117 S. Ct. 2157 (1997). Thus, as a highlyfractured decision, much of which has been overruled in subsequent cases, Oregon v. Mitchell
stands as a tenuous precedent for the constitutionality of congressional action on such bills as
H.R. 906.cxci
A state’s right to determine voting qualifications, however, can be trumped when the
laws utilized in this process are proven to be discriminatory, a dubious proposition with the
current composition of the Supreme Court. The question of whether felony disenfranchisement
laws are intrinsically discriminatory was addressed during hearings on H.R. 906 by each of the
four legal experts mentioned above. This legal question revolves around interpretations of the
Fourteenth and Fifteenth Amendments. These Amendments provide, respectively, that no state
may abridge the privileges or immunities of citizens of the U.S. or deny any person “equal
protection of the laws,” nor may any state or the federal government deny or abridge the right
to vote “on account of race, color, or previous condition of servitude.” Both Amendments end
with a clause bestowing upon Congress the “power to enforce this article by appropriate
legislation.” In fact, many significant pieces of legislation—the Civil Rights Act of 1964 and
the Voting Rights Act of 1965, to name two—have been enacted pursuant to these
amendments. The problem of felony disenfranchisement does not fall neatly under the Equal
Protection Clause, for within the text of the Fourteenth Amendment itself, an exception of the
protection of the right to vote is made “for participation in rebellion or other crime.” Thus,
the issue of felony disenfranchisement seems not to be covered by the Fourteenth Amendment.
Nevertheless, Metzger argues that current data show the disparate impact of these laws
on people of color, and historical evidence is strong that the original intention of these laws was
to discriminate against black would-be voters, and these findings supersede the criminal
exception of the Fourteenth Amendment. She cited the Supreme Court case Hunter v.
Underwood, 471 U.S 222 (1985), in which the court struck down a discriminatory voting
restriction in Alabama which disenfranchised criminals convicted of crimes involving “moral
turpitude” as a violation of the Equal Protection Clause. This precedent shows that
discriminatory criminal disenfranchisement laws are not exempt from the Equal Protection
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Clause merely because of the Fourteenth Amendment’s general allowance for states to
disenfranchise felons. The careful historical evidence of a connection between an “intention to
discriminate” and felony disenfranchisement laws is crucial to this argument, and Metzger
relied upon legal historian Andrew Shapiro’s documentation of racially discriminatory motives
in establishing these laws in the post-Reconstruction South. There is precedent for finding this
“intent to discriminate” for other “facially neutral” laws, that is, laws which do not explicitly
employ discriminatory language. For even if a law is facially neutral, so long as it creates a
disparate impact on people of color there may be a constitutional mandate to create legislation
correcting it. Poll taxes and literacy tests constitute two examples, although it took a
constitutional amendment to outlaw the poll tax. According to City of Boerne, “[p]reventative
measures prohibiting certain types of laws may be appropriate when there is reason to believe
that many of the laws affected by the congressional enactment have a significant likelihood of
being unconstitutional,” as would likely be the case for disenfranchisement laws, given their
discriminatory bias.cxcii
Furthermore, Metzger pointed out that in City of Rome v. United States, 466 U.S. 156
(1980), the Supreme Court found that Congress did in fact have the authority to “prohibit
voting practices that have only a discriminatory effect,” even without proof of discriminatory
intent. This topic was addressed by USCCR, which quoted Professor Allan Lichtman’s
explanation of this “results test” in terms of Election 2000:
We do not have to demonstrate an intent to discriminate. We do not have to
demonstrate that there was some kind of conspiracy against minorities or that anyone
involved in the administration of elections today or yesterday had any intent whatever
to discriminate against minorities, because indeed under the Voting Rights Act,
practices can be illegal so long as they have the effect of diminishing minority
opportunities to participate fully in the political process and elect candidates of their
choice.cxciii
And several studies have clearly shown the extent to which these laws result in the
disenfranchisement of disparate numbers of citizens of color. Were this the only legal evidence
needed to prove the illegality of disenfranchisement laws, then the Congress would clearly have
the authority to enact H.R. 906 or any similar law.
Clegg, Dinh, and Ganianzo, however, provided substantial counter-attacks to Metzger’s
argument, rephrasing the questions of intentional discrimination and disparate impact. Clegg
simplified this position by asserting a contradictory position to that of Lichtman—unless

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discriminatory intent is proved, as was the case in Hunter v. Underwood with Alabama’s
“moral turpitude” clause, there is no basis for federal legislative intervention under the
Fourteenth or Fifteenth Amendment. He cited City of Mobile v. Bolden, 466 U.S. 55 (1980) for
the main precedent in this position. In this case, a plurality of judges determined that a law’s
disparate impact was not sufficient to register as a violation of the Fourteenth Amendment, but
that proof of discriminatory intent was also necessary. In the case of literacy tests and other
Jim Crow voting obstructions which were facially neutral yet disparately impacted black
voters, Clegg argued that because these laws had a clear historical basis in intentional
discrimination, they passed the “intent” test of City of Mobile.cxciv
Dinh likewise took issue with the discriminatory intent in felony disenfranchisement
laws. As a recommended course of action, he suggested that H.R. 906’s authors determine to
what extent discriminatory intent is relevant to the laws in question, and assuming this evidence
substantial, to include an assertion of discriminatory intent within the text of the bill itself.
According to Keller of the Judiciary Committee, this advice has been taken into consideration
in a later draft of the bill. Dinh was quick to warn, however, that even including proof of
discriminatory intent might not warrant action on the federal level to ban all states from the
practice of felony disenfranchisement. He thus recommended that a constitutionally legitimate
method for ending disenfranchisement would be to prove historical racial animus state by state.
Ganziano, like Clegg and Dinh, agreed that in failing to clearly demonstrate that felony
disenfranchisement laws were instituted on a pretext of intentional racial discrimination, H.R.
906 cannot legitimately follow the precedent of Hunter v. Underwood and come under the
protection of the Fourteenth Amendment. In Ganziano’s opinion, if racial bias can be proven
inherent to these laws, then a judicial solution is in order, and there is no need for legislative
action on the federal level.cxcv Litigation or legislation would still be state by state.
These legal experts shed light on the complications in legislating at the federal level to
reform state felony disenfranchisement. Aside from the legal question of the federal
government’s interference with a constitutionally-determined prerogative of the state, proving
both the intent of these laws as well as their disparate impact on communities of color is not
easy. For, as even Metzger pointed out, it is difficult to contend that the federal government can
legitimately intervene in a matter which has been delegated to the states, absent proof of
discriminatory intent. The court cases surrounding the Voting Rights Act of 1965 gave a sense
of the breadth with which this law may be interpreted. Thus it is unlikely that a bill such as

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H.R. 906, or any other federal legislation, will be deemed constitutional by the Supreme Court,
let alone by a majority of legislators, without convincing evidence of intent.cxcvi
Although both Representatives Davis and Waters have included in their bills the
discriminatory impact of these laws, both pieces of legislation refrain from making claims as to
the discriminatory intent of felony disenfranchisement laws. Of the four bills discussed, only
H.J. Res. 72, Representative Jackson’s proposed Constitutional Amendment establishing a
“right to vote,” completely overcomes the legal obstacles raised by the constitutional experts at
the H.R. 906 hearing. Jackson’s proposed method for addressing felony disenfranchisement
looks to history for its strategy: ex-slaves, women, and 18 year-olds were not extended the
privilege of the vote until a formal change to the Constitution was adopted. The poll tax was
outlawed by Constitutional Amendment. In fact, Jackson’s Amendment would not only protect
the voting rights of ex-felons, but strengthen the Fifteenth, Nineteenth, and Twenty-sixth
Amendments simultaneously by basing them on a promise made by the federal government to
every American that he has the fundamental right to partake in this nation’s democracy.
Because Representative Jackson’s bill has received little support, and because of the
fundamentally flawed nature of the other three bills (failing to offer convincing proof of an
“intent to discriminate”), there is little reason to have faith in the federal government’s ability
to legislate an end to state disenfranchisement laws. Even Andrew Shapiro, a leading historian
on felony disenfranchisement laws who has published historical evidence of the racially
discriminatory motives of these laws at their inception, has asserted that effective legislative
reform cannot happen on the federal level.cxcvii For this reason, he and many other legal
scholars, legislators, and policy activists are reluctantly advocating a legislative strategy of
working on the state level for new laws.cxcviii Nevertheless, as in the case of the poll tax and
voting rights for 18 year-olds, years of legislative effort can keep the issue alive and help build
public support.

C. Efforts on the State Level
For all of the legal roadblocks in the way of federal legislation to outlaw state felony
disenfranchisement, no such barriers exist for changing these laws on the state level. Although
it can be questioned whether the Constitution allows states to disenfranchise on the basis of a
criminal record, it is certain that states may choose not to disenfranchise ex-felons,
probationers, parolees, and even incarcerated felons. States are empowered to specify

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qualifications for voting. The state-level fight has begun in various locations to change the laws
in the forty-eight states (and the District of Columbia) that disenfranchise felons during their
imprisonment, and in some cases thereafter. These efforts are most critical in those thirteen
states where ex-felons may be permanently disenfranchised. The often bitter battles in state
legislative bodies have already resulted in some limited successes. In New Mexico, the vote
was restored to ex-felons by a bill passed in March 2001. More limited progress has been made
in Connecticut, where in May 2001 the Governor signed legislation allowing probationers to
vote. In Delaware, the law mandating lifetime disenfranchisement was replaced in June 2000
with a five-year ban on voting upon sentence completion, after which most ex-felons may
apply for a restoration of their civil rights.cxcix In Virginia, more limited success was attained by
Assembly Chapter 969, approved by the Governor in April 2000, which replaces ex-felon
disenfranchisement with a law allowing certain ex-felons to apply to the circuit court for
restoration of their civil rights five years after sentence completion (and seven years after
sentence completion for drug offenders). The court’s decision, however, must be approved by
the Governor.cc
In several other states, including Florida, Alabama, and Maryland, legislative efforts are
currently underway to reform felony disenfranchisement practices.
In Florida, six bills
addressing this issue are currently pending. Four of these, all introduced in late January 2002,
would automatically restore civil rights to felons upon the completion of their sentences.cci
Similar bills were also introduced in January in Alabama and Maryland, both of which would
effectively end ex-felon disenfranchisement in their respective states.ccii All of these bills are
currently pending committee action. In Nevada, although Assemblyman Wendell Williams
introduced legislation aimed at reforming ex-felon disenfranchisement policies in 1999, the bill
died in the Senate Judiciary Committee after passing through the Assembly. No legislation on
this issue has been introduced since this time.cciii
Far worse, as mentioned earlier, in Utah, Oregon, Massachusetts, and Louisiana state
legislatures have voted to make felony disenfranchisement laws more stringent.cciv
Developments such as these suggest that progress on the state level will never be fully
successful. Throughout American history, liberals and progressive reformers have leaned on
the federal government to step in and correct undemocratic tendencies and discriminatory
practices which have existed on local and state levels. In this case, left to the states themselves,
it seems apparent that the great progress made by states such as New Mexico, Connecticut, and
Delaware is being balanced by huge setbacks in other states. And the less biased, more purely

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democratic hand of the federal government, which could theoretically guide these states to
more equitable and just laws, has thus far been excluded from this arena altogether. Although
state-level legislative battles are continuing, many advocates of ending felony
disenfranchisement are doubtful they can succeed when all of the power remains with
individual states. Thus, skepticism prevails on both the state and federal levels in terms of
legislating an end to felony disenfranchisement practices. For this reason, an alternative
strategy has been developed to circumvent these legislative obstacles—a litigation strategy.

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CHAPTER VI
Current Progress on the Judicial Front
A. The Fourteenth Amendment, Voting Rights Act, and Legal Precedents
For much of American history, the legal case against state felony disenfranchisement
laws both began and ended with the Fourteenth Amendment. Section 1 of the Amendment
established “equal protection of the laws” for every citizen, thus laying the groundwork for
felons to claim that they are “unequally protected” under voting laws because of their criminal
records. As interpreted by the Supreme Court, the Equal Protection Clause does not absolutely
ban states from treating different groups differently, however, but instead requires states to
show a legitimate interest for differential treatment. This requirement to show a legitimate state
interest is heightened when the restricted right in question is a fundamental right. As ruled in
Reynolds v. Sims, 377 U.S. 533 (1964), voting does constitute one such fundamental right.
Thus, because disenfranchisement violates this fundamental right, in disenfranchisement cases
the burden lies with the state to prove that restriction of the vote is not only a necessary
precaution for the state’s own interest, but also the least obtrusive mechanism for
accomplishing its ends, as laid out in Dunn v. Blumstein, 405 U.S. 330 (1972).
Section 2 of the Fourteenth Amendment, however, has frustrated many legal attempts to
confront disenfranchisement laws under the Equal Protection Clause. Coupled with this
section’s assertion that the state cannot deny citizens the right to vote on penalty of reduced
state representation is the qualification that “participation in rebellion or other crime” is cause
for exemption from this protection.ccv In 1974, the Supreme Court ruled in Richardson v.
Ramirez that Section 2 limits the amendment’s protection of felons’ voting rights “equal
protection;” California’s denial of the franchise to three ex-felons was determined not to be in
violation of the Fourteenth Amendment’s Equal Protection Clause. Justice Thurgood Marshall
dissented in the decision, pointing to historical disenfranchisement motives and possible
political incentives for adding the phrase “or other crime” to this otherwise clear statement of
protection against Confederate patriots. He quoted Byers v. Sun Savings Bank, 41 OKLA. 728,
731, 139 P. 948 (1914) in his dissenting opinion, declaring that “the disenfranchisement of exfelons had ‘its origin in the fogs and fictions of feudal jurisprudence and doubtless has been
brought forward into modern statutes without fully realizing either the effect of its literal
significance or the extent of its infringement upon the spirit of our system of government.’”ccvi
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Yet, despite Marshall’s dissent, which was grounded in historical evidence from the
Reconstruction Era, Richardson v. Ramirez has served as the legal precedent on felony
disenfranchisement laws, freeing states of any obligation to prove a compelling state interest.
Accordingly, states have an “affirmative sanction” to disenfranchise felons, who are
specifically excluded from “equal protection of the laws,” including the fundamental right of
voting.ccvii
As a Reconstruction Amendment, the Fourteenth Amendment was crafted specifically
to protect ex-slaves and blacks, and thus functions to allow voters who are part of a protected
group to challenge both outwardly discriminatory laws and facially-neutral discriminatory
laws. In some cases, the Equal Protection Clause has worked effectively toward this end. In
1985, the Supreme Court decision of Hunter v. Underwood somewhat tempered the narrow
interpretation of the Richardson v. Ramirez decision of a decade earlier. In Hunter v.
Underwood, the felony disenfranchisement law in question was an Alabama law which deemed
specific felonies and misdemeanors, along with “any . . . crime involving moral turpitude,” to
be cause for disenfranchisement. This law, on the basis of its “moral turpitude” clause, was
determined to be in violation of the Fourteenth Amendment’s Equal Protection Clause in that
the law was adopted to intentionally discriminate against black voters. In the closing words of
the Supreme Court decision, the ruling pivots on whether the Alabama felony
disenfranchisement law in question:
is excepted from the operation of the Equal Protection Clause of [Section] 1 of the
Fourteenth Amendment by the “other crime” provision of [Section] 2 of that
Amendment. Without again considering the implicit authorization of [Section] 2 to
deny the vote to citizens ‘for participation in rebellion, or other crime,’ see Richardson
v. Ramirez, 418 U.S. 24 (1974), we are confident that [Section] 2 was not designed to
permit the purposeful racial discrimination attending the enactment and operation of
[Alabama’s disenfranchisement law] which otherwise violates [Section] 1 of the
Fourteenth Amendment.ccviii
In this way, Hunter v. Underwood served to clarify the functioning of the Fourteenth
Amendment with respect to felony disenfranchisement laws. For although these laws are not in
and of themselves in violation of the Fourteenth Amendment (per Richardson v. Ramirez),
when such laws can be proven to have been enacted with a discriminatory intent, as was the
case in Hunter v. Underwood, they stand in violation of the Equal Protection Clause.
The precedents of Ramirez v. Richardson and Hunter v. Underwood provide legal
opponents of felony disenfranchisement laws one framework to combat these laws. So long as
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the discriminatory intent of felony disenfranchisement laws is proven, attorneys can utilize the
Equal Protection Clause of the Fourteenth Amendment as the basis for the case. Another
approach centers on the Voting Rights Act, specifically the 1982 amendment to the Act. In
1965, Congress passed the Voting Rights Act with the intention of strengthening the Fifteenth
Amendment. Up to that point, the Amendment had attained only limited success in
enfranchising black voters due to the many obstructions put in place by various state
governments, e.g., poll taxes, literacy tests, and grandfather clauses.ccix As a legislative act
meant to broaden the scope and enforcement powers of the Fifteenth Amendment, particularly
against facially-neutral but discriminatory laws, the Voting Rights Act of 1965 has a clear place
in the judicial fight against felony disenfranchisement laws.
In terms of felony disenfranchisement laws, the most significant case interpreting the
Voting Rights Act is City of Mobile v. Bolden, 446 U.S. 55 (1980). In this case, the Supreme
Court ruled that proof of intent to discriminate was needed in order for a law to be in violation
of the Voting Rights Act of 1965, thus severely limiting the scope of the Voting Rights Act.
Under City of Mobile v. Bolden, plaintiffs were required to prove not only the disproportionate
effects of actions, but also discriminatory intent, a much more difficult task. Congress,
dismayed at this effectual limiting of the Voting Rights Act, passed an Amended Section 2(b)
to the Act in 1982, restoring the broad discriminatory results standard to the Act. This
amendment utilized the term “vote dilution” in an attempt to assess the overall harm inflicted
on an entire community. The 1982 Amendment states, “vote dilution”:
[occurs] if, based on the totality of circumstances, it is shown that the political processes
leading to the nomination or election in the state or political subdivision are not equally
open to participation by members of a class of citizens protected by [the Act] in that its
members have less opportunity than other members of the electorate to participate in the
political process and to elect representatives of their choice.ccx
If this “vote dilution” could be found, the voting restrictions in place could be illegal.
Thus, the 1982 Amendment established the “results test,” relieving a plaintiff’s burden
of proving the intentional discriminatory nature of a disenfranchisement law. By this
amendment, Congress instead legislated that so long as the “totality of circumstances” of any
disenfranchisement practice results in the denial of the vote on the basis of race, it is illegal,
regardless of the motivation for putting such a law in place.ccxi According to Brennan Center
attorney Jessie A. Allen, under the “results test,” proof that the denial is on account of race
comes from the “totality of circumstances,” including, for instance, historical vote

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discrimination against the group in question or proof of socioeconomic disparities between
groups granted and those denied the vote by a particular law.ccxii
In the years directly following 1982 and the passage of the Amendment to the Voting
Rights Act, felony disenfranchisement foes hailed the potential for judicial success in the new
litigation strategy of trying state felony disenfranchisement laws under the Voting Rights
Act.ccxiii While drawing a line from the racial animus associated with the institution of felony
disenfranchisement laws to their current disparate effect on communities of color has been
difficult to prove in court, there is abundant evidence to show the discriminatory effect of the
laws. Much of this hope was deflated in 1986, however, with Wesley v. Collins, 791 F. 2d 1255
(6th Cir. 1986). In this case, the plaintiff argued that Tennessee’s ex-felon disenfranchisement
laws resulted in discrimination against people of color by diluting the black vote, thus violating
the Voting Rights Act. A federal court disregarded the 1982 amendment and dismissed the
case. The court instead based its decision on the fact that inconclusive evidence had been
presented to establish a connection between historic and modern discriminatory practices of exfelon disenfranchisement laws. The court rejected the causal premise of circumstantial
evidence, and decided that although the “totality of circumstances” showed evidence of
discrimination, “these facts could not be tied to historical tradition and rationale for
disenfranchising felons.”ccxiv Yet, the 1982 Amendment to the Voting Rights Act had been put
in place specifically so that circumstantial evidence, such as the disparate result and a history of
discrimination, could be strung together to prove this “totality of circumstances” without
explicitly proving an intent to discriminate. This decision has left felony disenfranchisement
legal scholars and attorneys to wonder why the facts in Wesley v. Collins were dismissed so
casually, prompting Andrew Shapiro to call the decision a “misapplication of the results test,”
and Allen to allege that the court had neglected to take into account race as a factor.ccxv

B. Florida Conference of Black State Legislators et al. v. Michael Moore, in his official
capacity as the Secretary of the Florida Department of Corrections
Litigators have not given up hope of attacking felony disenfranchisement laws, but are
now cautious in challenging them under the amended Section 2 of the Voting Rights Act, or
making claims solely on the basis of vote dilution without proof of intent. In fact, some
attorneys have devised creative methods of circumventing the legal precedents which appear
stacked in favor of retaining current felony disenfranchisement laws. One example is a lawsuit
currently pending, filed March 14, 2001 by the ACLU of Florida, along with the Florida Equal
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Voting Rights Project, Florida Justice Institute, Inc., and Florida Legal Services. It attacks the
practice of ex-felon disenfranchisement while carefully avoiding a direct challenge to Florida’s
felony disenfranchisement laws themselves.ccxvi The suit’s plaintiffs are disenfranchised felons
and ex-felons representing themselves, as well as the Florida Conference of Black State
Legislators (“Black Caucus”), People United to Lead the Struggle for Equality, Inc. (PULSE),
Brothers of the Same Mind, Inc., and Inner City Grassroots Civic Coalition. Instead of calling
for an end to disenfranchisement laws in Florida, the plaintiffs in Florida Conference of Black
State Legislators et al. v. Moore make a complaint against the Secretary of the Florida
Department of Corrections for his failure to assist felons in completing the necessary
application materials for restoration of their civil rights upon release from incarceration by the
only available means, gubernatorial pardon. The responsibility of Michael Moore as Secretary
of the Florida Department of Corrections to assist felons in this procedure is detailed in Fla.
Stat. § 944.293 (2000). The plaintiffs do not challenge the legality of the complicated
procedure of attaining a gubernatorial pardon, but complain merely of the unfair practices that
have occurred as part of this structure. For in shirking its duties to assist inmates with the
appropriate civil rights restoration forms, the Florida Department of Corrections is rendering
them disenfranchised de facto, even though the law theoretically functions such that ex-felons
may have the vote restored.ccxvii
Just as was seen in the precedent cases, the issue of disproportionate impact on
communities of color is mentioned early in this case and serves as a basis for the plaintiffs’
complaint. Yet, rather than attempt to embroil itself in the complicated legal precedents
involving the constitutionality of the laws which render these large percentages of the
population voteless, this case requests only that Moore fulfill his responsibilities in aiding
felons to complete the necessary forms compliant with Fla. Stat. § 944.293. Thus, the success
of the case, and the chance for more ex-felons to have the opportunity for the governor’s
pardon and restoration of their civil rights, is not bound by the necessity to prove intentional
discrimination or any of the other barriers created by the judicial precedents.ccxviii

C. Thomas Johnson et al. v. Jeb Bush et al.
According to Randall Marshall, Florida ACLU’s Legal Director and plaintiff attorney in
Florida Conference of Black State Legislators et al. v. Moore, part of the reason that his case
refrains from directly tackling felony disenfranchisement laws themselves is that a case is
concurrently underway for that purpose.ccxix This second Florida suit, Thomas Johnson et al. v.

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VI. CURRENT PROGRESS ON THE JUDICIAL FRONT

Jeb Bush et al., was submitted by the Brennan Center for Justice at New York University Law
School and The Lawyers Committee for Civil Rights Under Law. As a class action complaint
on behalf of eight disenfranchised ex-felons (five black men, one black woman, one Latino
man, and one white man) as representative of the 613,000 ex-felon citizens of Florida who have
been disenfranchised, this suit claims that Florida felony disenfranchisement laws violate the
First, Fourteenth, Fifteenth, and Twenty-Fourth Amendments to the United States Constitution,
as well as Sections 2 and 10 of the Voting Rights Act of 1965, as amended in 1973 and in 1982.
Thus, this case takes on all of the issues raised by the legal precedents, such as questions of
proving an intent to discriminate.ccxx
In fact, an assertion that “the permanent disenfranchisement of felons in Florida was
initially adopted to discriminate against African-American voters and continues to have
significant discriminatory impact” is made in the preliminary statement of the case. The case
goes on to trace the history of Florida’s disenfranchisement laws in detail, beginning with their
inception in 1838, when Florida was still a territory, and their expansion in 1868 when blacks
were first enfranchised. This historical narrative places these laws in line with the rest of the
post-Civil War Black Codes, which were created to discriminate against newly-freed slaves.
Next, the case exposes how the disenfranchisement laws functioned to ensure white supremacy
and the dominance of conservative Democrats as part of the redrafted Florida Constitution in
1868. This history carefully traces the thread of intentional racial discrimination in voting from
Florida’s pre-state existence, and then further demonstrates with statistics the disparate impact
still caused by these disenfranchisement laws today. The purpose of this detailed narrative is
clear: to prove the intent to discriminate inherent in Florida’s felony disenfranchisement laws.
This history is incorporated into all of the case’s claims, and is meant to stand as circumstantial
historical evidence for the final conclusion of the brief, that “the political processes in Florida
are not equally open to participation by African-American citizens and African-Americans
have less opportunity than others of the electorate to participate in the process and elect
representatives of their choice.”ccxxi
Johnson et al. v. Bush et al. makes six claims, each taking a different approach to
attacking the felony disenfranchisement laws. The first claim for relief is that Florida’s laws
violate the Equal Protection Clause. The claim is supported by the original intent of the laws to
discriminate against black citizens, and the current disproportionate impact of the laws on black
citizens. Because of its statement of intent, based on the historical evidence present, the claim
attempts to avoid falling into the trap laid by Richardson v. Ramirez. This claim makes the
case that Florida felony disenfranchisement laws, while facially-neutral, are in violation of the
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VI. CURRENT PROGRESS ON THE JUDICIAL FRONT

Equal Protection Clause due to their discriminatory nature, both in intent and impact, in the
same way that the Alabama law was.ccxxii
The second claim rests on section 2 of the Voting Rights Act, as amended in 1982.
Although the claim states that felony disenfranchisement laws “[mean] that African-Americans
have less opportunity than other members of the electorate to participate in the political process
and to elect representatives of their choice,” this claim, like the first, involves vote denial, and
not vote dilution, since all of the plaintiffs in Johnson et al. v. Bush et al. are themselves
disenfranchised by Florida’s felony disenfranchisement law.
The third claim reaches back to the Equal Protection Clause of the Fourteenth
Amendment. This claim differs from the first two in that it does not rest on evidence of racial
discrimination, either in intent or practice, but instead on the substance of the Florida law as
“arbitrary and irrational.” The legal precedent of Richardson v. Ramirez, which declared that
for felons protection of the fundamental right to vote is not assured, in light of the mention of
crimes in section 2, will make this claim difficult to prove. Since race is not a factor in this
claim, the court is not bound to employ “strict scrutiny,” its harshest review, when determining
whether the state is functioning in accordance with a legitimate interest in punishing ex-felons.
Instead, the court need only determine that Florida’s felony disenfranchisement law bears a
“rational” relationship to a legitimate government interest. Historically voting rights violations
have only been struck down when “strict scrutiny” has been employed, either because
intentional discrimination has been proven or a fundamental right has been violated.ccxxiii Thus,
although the state of Florida has a difficult task in proving a legitimate state interest in its
felony disenfranchisement laws, the plaintiffs also have a difficult task in making their case
without the leverage of a fundamental right violation.ccxxiv
The fourth claim also disregards racial discrimination, instead focusing on the basic
violation of the right to vote—contained in the First and Fourteenth Amendments—by the
disenfranchisement laws in question. As with the third claim, the challenge here is to
distinguish this claim from Richardson v. Ramirez. That case relied on the section 2 exception
(citizens who have participated in “rebellion or other crime” have no right to vote). Instead of
relying on evidence of racial discrimination, this claim utilizes statistics showing the extent to
which these laws affect large numbers (4.6 percent) of Florida’s general voting age
population.ccxxv

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VI. CURRENT PROGRESS ON THE JUDICIAL FRONT

The case’s last two claims enter territory unexplored by felony disenfranchisement
litigation. Both claims specifically address those ex-felons who have been denied the ability to
apply for restoration of their civil rights without a hearing because of outstanding restitution
payments.ccxxvi This monetary obstruction to voting is analogized to the poll tax, and is thus
deemed to be a violation of the Fourteenth Amendment and the Twenty-Fourth Amendments
by the fifth claim, and section 10 of the Voting Rights Act by the sixth claim.ccxxvii
These six claims, as they rest on the history of felony disenfranchisement laws in
Florida, comprise what is likely to be the most viable chance of challenging state felony
disenfranchisement in the nation today. The plaintiffs will be represented by a skilled team of
attorneys who have taken into account all of the most recent research on felony
disenfranchisement, from Manza and Uggen’s sociological report, “The Truly
Disenfranchised,” to the Sentencing Project’s latest analyses of Department of Justice
incarceration data.ccxxviii Everyone frustrated by the many barriers in the way of federal voting
rights legislation, and the slow, impermanent progress of state-level legislative solutions are
holding their breath. The court’s decision in this case will decide whether litigation in other
states will be fought using a similar legal strategy or whether new strategies are needed.
Meanwhile grassroots advocacy groups must begin work in full force to press for state
legislative
action
and
steps
toward
amending
the
U.S.
Constitution.

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VII. FELONY DISENFRANCHISEMENT’S PLACE IN THE LIBERAL AGENDA

CHAPTER VII
Felony Disenfranchisement’s Place in the American Agenda
A. The Key to Success
The American Left has the infamous reputation of being highly fractured, a
conglomerate of many special interest groups whose specific agendas have at times competed
with each other to the extent that only the conservative voice remains loud enough to be heard
in the policy arena. The recipe for success calls for a united front—something difficult to attain
in practice. Multifaceted issues such as felony disenfranchisement have the potential to bring
together a diverse set of public interest groups. Felony disenfranchisement weaves together
issues dear to the prison reform movement, civil rights movement, democracy initiatives, and
election reform efforts, and thus creates the potential for an alliance in pursuit of a single
common goal. Such a strategy has already proven fruitful at the state level. According to
Dēmos president Miles Rapoport, the fight in the Connecticut legislature to end probation
disenfranchisement was won only when organizations as diverse as Common Cause, gender
equality groups, the NAACP, prisoner advocacy organizations, and church groups came
together with a single, strong progressive voice. By the end of this legislative struggle,
bipartisan support existed for ending probation disenfranchisement.ccxxix
When put under pressure, a politician should find it difficult to rationalize his refusal to
support an extension of the primary democratic principle upon which this nation was founded.
The problem thus far has been that this pressure has not been sufficiently applied. Viable
legislation has been scarce, and those few federal bills introduced have received little vocal
support from either Members of Congress or the general public.
Ending felony
disenfranchisement will most likely find success as a “bottom-up” grassroots reform
movement. Without a strong popular appeal to the democratic principles of equality and
justice, few elected officials will be motivated to override the conservative exclusionary
tendency to maintain the status quo.
Therefore, the voters, public interest groups, and lobbying organizations must play an
integral role in creating this pressure through forging a heightened awareness of the threat to
our democratic system inherent in felony disenfranchisement laws, especially today when an
unprecedented number of citizens are incarcerated. Most Americans are entirely ignorant on
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VII. FELONY DISENFRANCHISEMENT’S PLACE IN THE LIBERAL AGENDA

this issue, and when briefed on simple disenfranchisement statistics are shocked to learn of
their widespread and disparate effects. Furthermore, taking advantage of what Raskin termed a
“constitutional moment,” liberal advocacy groups should act now to educate Americans about
the undemocratic tendencies of the electoral system as it stands. In the current climate,
Americans of all political stripes are eager to avoid a recurrence of Election 2000 with its
structural and implementation flaws, and to reach a goal of every citizen investing his full
confidence in a just system. At this unique moment, after Election 2000, liberal politicians
have a rare opportunity to come together and step forward with a powerful voice advocating
reform. Although the time may be ripe for liberal mobilization, without organized unity and a
strong popular support base, this “constitutional moment” will pass without the democratic
reforms our system so desperately needs.
Federal legislation reforming felony disenfranchisement laws, or, better yet, a
Constitutional Amendment mandating a right to vote for all American citizens, would be the
most effective legislative means for abolishing felony disenfranchisement laws nationwide.
Such a campaign would take a coalition of mammoth proportions. In the meantime, while
advocacy groups begin to coalesce around this critical issue of American democracy, working
on the state level to address felony disenfranchisement policies is an effective interim strategy
on two grounds. First, legislation would enfranchise a substantial group of citizens, and,
second, work at the state level contributes to the necessary grassroots mobilization. Concurrent
with these efforts, the litigation route of fighting felony disenfranchisement laws must continue.
A court ruling to disallow felony disenfranchisement laws is preferable to the impermanent
solution of legislation.
A federal court decision could seal the fate of felony
disenfranchisement laws by determining that they violate constitutional mandates, though until
the Supreme Court agrees, the ruling would fail to achieve nationwide effect.

B. The Symbolic Significance of Ending Felony Disenfranchisement Laws
Felony disenfranchisement laws serve as a reminder of the undemocratic underpinnings
of our electoral and criminal justice systems today. And this corrupt practice has hardly gone
unnoticed by those on the receiving end of the disparate treatment. Incarceration statistics by
race or the rate of black to white votes uncounted in Florida in Election 2000 certainly warrant
a distrust of the system by communities of color. For historical discrimination cannot be read
as a closed chapter in American history until all remnants of this oppression have been stamped
out. Until that time, the system will continue to cultivate a feeling of hopelessness in

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VII. FELONY DISENFRANCHISEMENT’S PLACE IN THE LIBERAL AGENDA

communities of color, manifesting itself as a widespread distrust in the American democratic
system. Therefore, when attempting to combat crime, instead of operating on a strategy of
disparate targeting of particular crimes, our society would be wise and farsighted to take
concrete steps toward promoting faith in the system to all members of society.
Instilling confidence in those who feel wronged by the criminal justice system is a
difficult task. According to Carl Upchurch, the key is to recognize that in our system, “it’s the
spirit that gets crushed;” thus, reversing this process is merely a matter of knowing “there’s a
flower under the rock.” As a symbolic action, the legislative procedure of ending felony
disenfranchisement is unmatched in both its healing message and political effectiveness. And
while certainly not the panacea for all of our societal failings, felon and ex-felon reenfranchisement can serve as an all-important first step in forging a relationship of trust and
good faith between the government and those who have been crushed under the criminal justice
system’s metaphorical rock. Until they are armed with the franchise, how can felons and exfelons be expected to trust in the American system or to thrust themselves into responsible civic
roles? All members of our society should recognize the danger in a society with increasing
numbers of disenfranchised citizens. And the potential benefits of taking this first step in
establishing a relationship grounded in responsibility and mutual trust are unparalleled.
Establishing the right to vote for all Americans, regardless of their prison records,
should serve as one of the centerpieces of a new progressive political strategy that promotes an
inclusive egalitarian democracy and social justice. We are now in an era when public
disillusionment with the government and its policies runs high, particularly in communities of
color and among those who have endured historic discrimination. Yet, this disillusionment
creates a window of opportunity for political figures who will dedicate themselves to policy
initiatives which promote just change in the system. One of the issues through which these
politicians could prove their commitment to just reform could be the battle against felony
disenfranchisement.
Currently, it is impossible to predict whether the demise of felony disenfranchisement
laws will be the result of legislative reform or a judicial solution. Regardless, until the
American public comes to have an unfavorable view of these laws, recognizing their
undemocratic basis and disparate impact, felony disenfranchisement will likely stay on the
books. For in terms of a judicial solution, without ready and willing felons and ex-felons to
serve as plaintiffs, passionate attorneys to fight on their behalf, and open-minded judges

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committed to equitable justice, productive trials will not take place. And in terms of a
legislative solution, without an awakened public eager to put pressure on elected officials in
states throughout the nation, there will be few lawmakers active on this issue. The key to
raising awareness is convincing the public that this is an issue which not only affects
disenfranchised felons, but also creates a blight of injustice on the democratic system as a
whole, thereby restricting the liberty of all Americans.
Citizens who actively work toward a society based in equality and justice for all
Americans regardless of skin color, ethnicity, or historical state of oppression must recognize
the failings of the criminal justice system today. These corruptions result in the creation of a
criminal society weighted along racial lines, and beget a cycle of hopelessness that only leads
to more criminal activity. What kind of democratic society institutes laws that capitalize on
these inequitable practices to mute the political voices of those who need this tool most, thus
squelching their opportunity for legitimate empowerment?
Disrupting this cycle and creating a politically-empowered community from these
shreds of justice is a daunting task. Yet, there is no more important priority for the
maintenance—and improvement—of American democracy than the establishment of the right
to vote for all Americans. Felony disenfranchisement laws are undemocratic and unjust in
denying certain citizens their political voice. And in doing this, these repugnant laws not only
strip these citizens of their opportunity for legitimate self-empowerment, but make a mockery
of those of us who have faith that our democratic system can spawn a just society.

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BIBLIOGRAPHY

BIBLIOGRAPHY
Abramsky, Sasha, “Barring Democracy,” Mother Jones (October 17, 2000).
Allard, Patrician, and Marc Mauer, “Regaining the Vote: An Assessment of Activity Relating
to Felon Disenfranchisement Laws,” (The Sentencing Project, January 2000).
Jessie A. Allen, New York, New York, August 30, 2001 (interview).
“America’s War on Drugs,” Rolling Stone, 875 (August 16, 2001).
American Civil Liberties Union (ACLU), “Black State Legislators, ACLU Voting Rights
Project Challenge State’s Failure to Help Ex-Offenders With Process of Restoring
Voting Rights,” March 14, 2001.
ACLU, “Citing Disenfranchisement of Black Voters, New ACLU Ad Assails Election Day
Fiasco, Calls fro Reforms,” Press Release, New York, June 8, 2001.
ACLU, “U.S. Civil Rights Commission Report on Florida Election ‘Too Gentle’ on Officials,
ACLE Says,” Press Release, June 5, 2001.
Alabama State Legislature. http://alisdb.legislature.state.al.us/acas/ACASLogin.asp.
Association of State Green Parties, “ASGP Statement on Voter Disenfranchisement in the 2000
Election,” http://www.gp.org.
Barker, Sir Ernest, ed., Social Contract: Essay by Lock, Hume, and Rousseau (New York:
Oxford University Press, 1948).
Carrington v. Rash, 380 U.S. 89 NO. 82 (1973).
Chaiken, Jan M., “Crunching Numbers: Crime and Incarceration at the End of the Millennium,
National Institute of Justice Journal (January 2000).
Conaway, Laura, and James Ridgeway, “Democracy in Chains,” The Village Voice (November
29-December 5, 2000).
Critical Resistance, “Critical Resistance East: Beyond the Prison Industrial Complex,”
Northeast Regional Conference Program, March 9-11, 2001, Columbia University Law
School, New York City.
CURE, “Justice for All,” CURE’s International Conference on Human Rights and Prison
Reform, Program, New York, New York, October 6-11, 2001.

70

BIBLIOGRAPHY

Donziger, Steven R., ed., The Real War on Crime (New York: HarperCollins, 1996).
Eisenkraft, Noah, “Taxation Without Representation,” Harvard Political Review (Spring 2001).
Florida Conference of Black State Legislators et. al. v. Moore, Second Judicial Circuit in and
for Leon County, Florida, General Jurisdiction.
Florida Legislature. http://www.leg.state.fl.us/Welcome/index.cfm.
Foucault, Michel, Discipline and Punish, trans. Alan Sheridan (New York: Vintage Books,
1995).
“Full-Employment Prisons,” New York Times, August 23, 2001.
Harvey, Alice E., “Ex-Felon Disenfranchisement and its Influence on the Black Vote: The
Need for a Second Look,” University of Pennsylvania Law Journal, 142, no. 3 (January
1994).
House Joint Resolution (H. J. Res.) 72. “Proposing an amendment to the Constitution of the
United States regarding the right to vote,” 107th Congress, Representative Jackson, Jr.,
sponsor.
House of Representatives, One Hundred Sixth Congress, First Session, “Hearing Before the
Subcommittee on the Constitution of the Committee on the Judiciary on H.R. 906,”
Serial No. 11, October 21, 1999.
House Resolution (H.R.) 1228, “Constitution Protection of the Right to Vote Act,” 107th
Congress, Representative Davis, sponsor.
H.R. 1558, “Voter Registration Protection Act of 2001,” 107th Congress, Representative
Hilliard, sponsor.
H.R. 2830, “Voting Restoration Act,” 107th Congress, Representative Waters, sponsor.
H.R. 906, “Civic Participation and Rehabilitation Act of 1999,” 106th Congress, Representative
Conyers, Jr., sponsor.
Human Rights Watch, “Felon Laws Bar 3.9 Millions Americans from Voting,” Human Rights
Watch Press Release, 2000.
Human Rights Watch, “Overincarceration, Drugs, and Race,” Human Rights Watch 2000
United States Report (2000).
Hunter v. Underwood, 471 U.S. 222 (1985).

71

BIBLIOGRAPHY

Hutchinson, Earl Ofari, “Congress Must End Second Class Citizenship,” Afrocentricnews.net
(2000).
Itzkowitz, Howard, and Lauren Oldak, “Restoring the Ex-Offender’s Right to Vote:
Background and Developments,” American Criminal Law Review, vol. 11, no. 3
(Spring 1973).
Jackson, Reverend Jesse L., Sr., “Liberty and Justice for Some,” Motherjones.com Special
Report—Debt to Society (July 10, 2001).
James, Joy, “The Dysfunctional and the Disappearing: Democracy, Race, and Imprisonment,”
Social Identities, vol. 6, no. 4 (2000).
Johnson, Governor Gary E. (R-NM), “Bad Investment,” Motherjones.com Special Report—
Debt to Society (July 10, 2001).
Justice Policy Institute, “Too Little Too Late: President Clinton’s Prison Legacy,” (Center on
Juvenile & Criminal Justice, February 2001).
Kaminer, Wendy, “Criminally Unjust,” The American Prospect, vol. 12, no. 15 (August 27,
2001).
Keenan Keller, Washington, D.C., July 12, 2001 (interview).
Kinder, Donald R. and Lynn M. Sanders, Divided by Color, (Chicago: University of Chicago
Press, 1996).
King, Colbert I., “The Voices They Silenced,” Washington Post, June 9, 2001.
Marika Litras, Washington, D.C., August 16, 2001 (telephone interview).
Manza, Jeff, Christopher Uggen, and Marcus Britton, “The Truly Disfranchised: Felon Voting
Rights and American Politics,” (January 3, 2001).
Randall Marshall, Esq., Florida, August 1, 2001 (telephone interview).
Marc Mauer, Washington, D.C., July 10, 2001 (interview).
Maryland General Assembly. http://mlis.state.md.us/#bill.
Mauer, Marc, and Jamie Fellner, “Losing the Vote,” (Human Rights Watch, The Sentencing
Project, October 1998).

72

BIBLIOGRAPHY

Metzger, Gillian, “Cruel and all too usual,” The National Law Journal (June 29, 1999).
National Association for the Advancement of Colored People (NAACP), “NAACP Appeals for
Voting Rights for Ex-Felony Offenders,” Press Release, April 4, 2001.
http://www.naacp.org.
NAACP, Washington Bureau, “Organizational Co-Sponsors of the ‘Equal Protection of Voting
Rights Act,” (Washington, DC, June 26, 2001).
NAACP-led Coalition in support of H.R. 1170/S. 565 “Equal Protection of Voting Rights Act,”
meetings July 1 to September 1, 2001.
The National Coalition on Black Civic Participation, “Voices of the Electorate.”
http://www.bigvote.org.
National Commission on Federal Election Reform, Hearing 1—Panel 2: Outside Assessments
(March 26, 2001).
National Commission on Federal Election Reform, Federal Election System Taskforce, John
Mark Hansen, coordinator, “To Assure Pride and Confidence in the Electoral Process:
The Final Report of the Commission’s Task Forces (July 2001).
National Commission on Federal Election Reform, Kenneth A. Gross, Pamela S. Karlan,
Stephen M. Nickelsburg, Daniel R. Ortiz, Trevor Potter, “Background Report of the
Taskforce on Legal and Constitutional Issues,” The Federal Regulation of Elections
(August 29, 2001).
Nevada Legislature. http://www.leg.state.nv.us/
Nichols, John, “Consortium: If standard had been ‘count every vote,’ Gore would have won
Florida,” The Nation, The Online Beat (November 12, 2001).
Palast, Gregory, “Florida’s ‘Disappeared Voters’: Disenfranchised by the GOP,” The Nation
(February 5, 2001).
Partsch, Karl Josef, “Freedom of Conscience and Expression, and Political Freedoms,” in Louis
Henkin, ed. The International Bill of Rights, (New York: Columbia University Press,
1981).
Piché, Dianne M., William L. Taylor, and Robina Reed, eds. Rights at Risk: Equality in an Age
of Terrorism (Washington, D.C.: Citizens’ Commission on Civil Rights, 2002).
Plaintiffs’ Summary Judgment Brief in Johnson v. Bush.

73

BIBLIOGRAPHY

Rapoport, Miles S., “Restoring the Vote,” The American Prospect, vol. 12, no. 14 (August 13,
2001).
Raskin, Jamin B., “A Right to Vote,” The American Prospect, vol. 12, no. 15 (August 27,
2001).
Richardson v. Ramirez, 418 U.S. 24 (1974).
Richie, Rob, “Let Ex-Felons Vote,” Letter to the Editor, New York Times, August 13, 2001.
The Sentencing Project, “Felony Disenfranchisement Laws in the United States,” (April 2001).
Shapiro, Andrew, “The Disenfranchised,” The American Prospect, vol. 8, no. 35, (November 1
– December 1, 1997).
Shapiro, Andrew L., “Challenging Criminal Disenfranchisement Under the Voting Rights Act:
A New Strategy,” Yale Law Journal, vol. 103, no. 2 (November 1993).
“The Disenfranchisement of Ex-felons: Citizenship, Criminality, and ‘the Purity of the Ballot
Box,’” Harvard Law Review, 102 (1989).
Thomas Johnson et. al. v. Jeb Bush et. al, United States District Court, Southern District of
Florida.
Thompson, Christine, “Losing the Vote,” Prison Issues (November 1999).
Tonry, Michael, Malign Neglect: Race, Crime, and Punishment in America (New York: Oxford
University Press, 1995).
Christopher Uggen, Minneapolis, Minnesota, August 9, 2001 (telephone interview).
Carl Upchurch, Columbus, Ohio, September 27, 2001 (interview).
United States Bureau of the Census, Lynne M. Casper and Loretta E. Bass, “Voting and
Registration in the Election of November 1996.”
United States Commission on Civil Rights (USCCR), Draft Staff Report on Voting
Irregularities in Florida During the 2000 Presidential Election (Washington, DC, June
2001).
United States Constitution.
United States Department of Justice, Bureau of Justice Statistics (DOJ/BJS), Sourcebook of
Criminal Justice Statistics 1999 (Washington, D.C.: DOJ, 1999).
74

BIBLIOGRAPHY

United States Department of Justice, Office of Justice Programs (DOJ/OJP), “Correctional
Populations in the United States, 1997,” Bureau of Justice Statistics, NCJ-177613
(Washington, D.C.: DOJ, March 2000).
United States DOJ/OJP, Joan Petersilia, “When Prisoners Return to the Community: Political,
Economic, and Social Consequences,” National Institute of Justice, NCJ-184253
(Washington, D.C.: DOJ, November 2000).
United States DOJ/OJP, “Lifetime Likelihood of Going to State or Federal Prison,” Bureau of
Justice Statistics Special Report, NCJ-160092 (Washington, D.C.: DOJ, March 1997).
United States DOJ/OJP, “Prison and Jail Inmates at Midyear 2000,” Bulletin NCJ 185989
(Washington, D.C.: DOJ, March 2001).
United States DOJ/OJP, “Prisoners in 2000,” Bulletin NCJ-188207 (Washington, D.C.:DOJ,
August 2001).
United States Department of Justice, Office of the Pardon Attorney (DOJ/OPA), “Civil
Disabilities of Convicted Felons: A State-by-State Survey” (Washington, D.C.: DOJ,
October 1996).
Virginia General Assembly. http://leg1.state.va.us/cgi-bin/legp504.exe?001+ful+CHAP0969.
Jack Zylman, Washington, D.C., July 6, 2001 (interview).

75

NOTES

NOTES
Quotation Page
i
Andrew Shapiro, “The Disenfranchised,” The American Prospect, vol. 8, no. 35, (November 1-December 1,
1997).
ii
Donald R. Kinder and Lynn M. Sanders, Divided by Color, (University of Chicago Press, Chicago, 1996), p. 197.
iii
United States Commission on Civil Rights (USCCR), Draft Staff Report on Voting Irregularities in Florida
During the 2000 Presidential Election, Chapter 6: Accessibility Issues (Washington, DC, June 2001),
http://www/usccr.gov. The report was approved 5 to 2 along party lines with Democrats supporting.
iv
Christine Thompson, “Losing the Vote,” Prison Issues (November 1999).
Chapter I
v
The Sentencing Project, “Felony Disenfranchisement Laws in the United States,” (April 2001).
vi
Marc Mauer and Jamie Fellner, “Losing the Vote,” Human Rights Watch, The Sentencing Project (October
1998).
vii
Sir Ernest Barker, ed., Social Contract: Essays by Locke, Hume, and Rousseau (Oxford University Press, New
York, 1948), p. 169.
viii
“The Disenfranchisement of Ex-felons: Citizenship, Criminality, and ‘the Purity of the Ballot Box,’” 102
Harvard Law Review, p. 1304 (1989).
ix
Ibid., p. 1306.
x
Howard Itzkowitz and Lauren Oldak, “Restoring the Ex-Offender’s Right to Vote: Background and
Developments,” American Criminal Law Review vol. 11 no. 3 (Spring 1973) pp. 721-2.
xi
Mauer and Fellner, “Losing the Vote.”
xii
Noah Eisenkraft, “Taxation Without Representation,” Harvard Political Review (Spring 2001).
xiii
Itzkowitz and Oldak, American Criminal Law Review, pp. 733-5.
xiv
Ibid., pp. 731-3.
xv
Ibid., pp. 735-6.
xvi
Michael Tonry, Malign Neglect: Race, Crime, and Punishment in America (Oxford University Press, New
York, 1995), pp. 158-9.
xvii
Itzkowitz and Oldak, American Criminal Law Review, pp. 736-9.
xviii
“The Disenfranchisement of Ex-Felons,” Harvard Law Review, p. 1302.
xix
Ibid., pp. 1308-9.
xx
Alice E. Harvey, “Ex-Felon Disenfranchisement and its Influence on the Black Vote: The Need for a Second
Look,” 142 University of Pennsylvania Law Journal, no. 3, pp. 1162-3.
xxi
Carrington v. Rash, U.S. 89 NO. 82 (1973).
xxii
Michel Foucault, Discipline and Punish, trans. Alan Sheridan (Vintage Books, New York, 1995), p. 47.
xxiii
Mauer and Fellner, “Losing the Vote.”
xxiv
Ibid.
xxv
Mauer and Fellner, “Losing the Vote.”
xxvi
Shapiro, The American Prospect.
xxvii
Interview with Marc Mauer, at The Sentencing Project, Washington, D.C. on July 10, 2001.
xxviii
Shapiro, The American Prospect.
xxix
Mauer and Fellner, “Losing the Vote.”; Gillian Metzger, “Cruel and all too usual,” The National Law Journal,
(June 29, 1999), Brennan Center for Justice Press Center.
xxx
Donziger, ed., The Real War on Crime (Harper Collins, New York, 1996), p. 46.
xxxi
James, Joy, “The Dysfunctional and the Disappearing: Democracy, Race, and Imprisonment,” Social Identities,
vol. 6, no. 4 (2000), p. 489. Quote is from Live From Death Row, Mumia Abu-Jamal.
xxxii
Justice Policy Institute “Too Little Too Late: President Clinton’s Prison Legacy,” Center on Juvenile &
Criminal Justice (February 2001), p. 2. http://www.cjcj.org/
xxxiii
Steven R. Donziger, ed., The Real War on Crime, (Harper Collins, New York, 1996), p. 2.
xxxiv
Ibid., p. 26.
xxxv
Mauer and Fellner, “Losing the Vote.”

76

NOTES

xxxvi

Donziger, ed., The Real War on Crime, p. 98.
Sasha Abramsky, “Barring Democracy,” Mother Jones (October 17, 2000). One notable exception is John
Conyers (D-MI), sponsor of the Civic Participation and Rehabilitation Act of 1999.
xxxviii
Justice Policy Institute, “Too Little Too Late: President Clinton’s Prison Legacy,” p.4.
xxxix
U.S. Department of Justice, Office of Justice Programs (DOJ/OJP), “Prisoners in 2000,” Bulletin NCJ-188207
(Washington, D.C.: DOJ, August 2001), p.1.
xl
Justice Policy Institute, “Too Little Too Late: President Clinton’s Prison Legacy,” p. 7.
xli
Human Rights Watch, “Overincarceration, Drugs, and Race,” Human Rights Watch 2000 United States Report.
http://www.hrw.org.
xlii
Donziger, ed., The Real War on Crime, pp. 9, 16-20. N.B. The U.S. homicide rate is higher than those of
comparable Western nations at 22,000 homicides per year. This is most likely due to the ease with which
Americans can gain access to guns compared to other nations. Yet, even this high homicide rate of 22,000 per
year hardly begins to explain the 1.5 million Americans currently incarcerated.
xliii
Ibid., p. 129.
xliv
Tonry, Malign Neglect, p. 6.
xlv
Kinder and Sanders, Divided by Color, pp. 222-6.
xlvi
Jeff Manza, Christopher Uggen, and Marcus Britton, “The Truly Disfranchised: Felon Voting Rights and
American Politics,” (January 3, 2001). This is a work in progress, and special permission for its use and citation
has been granted by Christopher Uggen.
xlvii
Marc Mauer, Race to Incarcerate (New Press, New York, 1999), pp. 42, 51,53-57.
xlviii
Donziger, ed., The Real War on Crime, p. 114.
xlix
Association of State Green Parties, “ASGP Statement on Voter Disenfranchisement in the 2000 Election.”
http://www.gp.org.
l
USCCR, Draft Staff Report, Chapter Five: The Reality List of Maintenance.
li
Mauer and Fellner, “Losing the Vote.”
lii
Mauer and Fellner, “Losing the Vote.”
liii
Dianne M. Piché, William L. Taylor, and Robina Reed, eds., Rights at Risk: Equality in an Age of Terrorism
(Washington, D.C.: Citizens’ Commission on Civil Rights, 2002), p. 199.
liv
“America’s War on Drugs,” Rolling Stone 875, August 16, 2001.
xxxvii

Chapter II
lv
H.R. 906, “Civic Participation and Rehabilitation Act of 1999,” 106th Congress, Representative Conyers, Jr.,
sponsor.
lvi
Jamin B. Raskin, “A Right to Vote,” The American Prospect vol. 12 no. 15 (August 27, 2001).
lvii
Ibid.
lviii
Ibid.
lix
National Commission on Federal Election Reform (Ford/Carter Commission), Kenneth A. Gross, Pamela S.
Karlan, Stephen M. Nickelsburg, Daniel R. Ortiz, Trevor Potter, “Background Report of the Taskforce on Legal
and Constitutional Issues,” Part X The Federal Regulation of Elections (August 29, 2001).
lx
Ford/Carter Commission Hearing 1 – Panel 2: Outside Assessments, March 26, 2001.
lxi
Kinder and Sanders, Divided by Color, p. 5.
lxii
Colbert I. King, “The Voices They Silenced,” Washington Post, June 9, 2001.
lxiii
Eisenkraft, Harvard Political Review.
lxiv
Andrew L. Shapiro, “Challenging Criminal Disenfranchisement Under the Voting Rights Act: A New
Strategy,” 103 Yale Law Journal, pp. 540-2; Shapiro, The American Prospect.
lxv
Shapiro, Yale Law Journal, p. 538.
lxvi
Ibid., pp. 542, 547-9. The Supreme Court decision Hunter v. Underwood, 471 U.S. 222 (1985) struck down the
“moral turpitude” clause in Alabama’s felony disenfranchisement law, finding that the clause was “intentionally
adopted to disenfranchise blacks on account of race and that [it] has had the intended effect.”

77

NOTES

Chapter III
lxvii
U.S. Department of Justice, Office of the Pardon Attorney (DOJ/OPA), “Civil Disabilities of Convicted
Felons: A State-by-State Survey” (Washington, D.C.: U.S. Department of Justice, October 1996), p.1.
lxviii
Ibid., pp. 1,6.
lxix
The Sentencing Project, “Felony Disenfranchisement Laws in the United States,” (April 2001).
lxx
Ford/Carter Commission Report, (August 2001), note 45.
lxxi
The Sentencing Project, “Felony Disenfranchisement Laws in the United States,” (April 2001).
lxxii
Patricia Allard and Marc Mauer, “Regaining the Vote: An Assessment of Activity Relating to Felon
Disenfranchisement Laws,” The Sentencing Project (January 2000).
lxxiii
Ibid., The Sentencing Project, “Felony Disenfranchisement Laws in the United States,” (April 2001).
lxxiv
DOJ/OPA, “Civil Disabilities of Convicted Felons,” pp. 2-3; H.R. 906, 106th Congress.
lxxv
Gregory Palast, “Florida’s ‘Disappeared Voters’: Disenfranchised by the GOP,” The Nation (February 5,
2001).
lxxvi
H.R. 906, 106th Congress. As of March, 1999, eight states required ex-felons to receive a formal pardon from
the Governor in order to regain their voting rights.
lxxvii
Allard and Mauer, “Regaining the Vote.”
lxxviii
Palast, The Nation.
lxxix
Human Rights Watch, “Felon Laws Bar 3.9 Million Americans from Voting,” Human Rights Watch Press
Release, October 1998.
lxxx
U.S. Department of Justice, Office of Justice Programs (DOJ/OJP), “Lifetime Likelihood of Going to State or
Federal Prison,” Bureau of Justice Statistics Special Report NCJ-160092 (March 1997) p. 1.
lxxxi
Ibid; The Sentencing Project, “U.S. continues to be world leader in rate of incarceration,” rev. (August, 2001).
lxxxii
U.S Department of Justice, Office of Justice Programs (DOJ/OJP), “Prison and Jail Inmates at Midyear 2000,”
Bulletin NCJ-185989 (Washington, D.C.: DOJ, March 2001), p.1.
lxxxiii
DOJ/OJP, “Prison and Jail Inmates at Midyear 2000,” Table 1, pp. 1-2.
lxxxiv
Ibid., Table 1, p. 2.
lxxxv
Ibid., Table 19, p.12; The Sentencing Project, “U.S. continues to be world leader in rate of incarceration.”
lxxxvi
DOJ/OJP, “Lifetime Likelihood of Going to State or Federal Prison,” Table 3, p. 4.
lxxxvii
U. S. Department of Justice, Bureau of Justice Statistics (DOJ/BJS), Sourcebook of Criminal Justice
Statistics 1999, Table 6.1, p. 484.
lxxxviii
Ibid., Table 6.8, p. 490.
lxxxix
Ibid., Table 6.70, p. 536. The Department of Justice defines the Southern region as being composed of the
following: Alabama, Arkansas, Delaware, District of Columbia, Florida, Georgia, Kentucky, Louisiana, Maryland,
Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, and West Virginia.
xc
Ibid., Table 6.3, p. 485.
xci
DOJ/OJP, “Lifetime Likelihood of Going to State or Federal Prison,” Table 1, p. 2.
xcii
DOJ/OJP, “Prison and Jail Inmates at Midyear 2000,” Table 12, p.9.
xciii
Ibid., Table 13, p. 9.
xciv
U.S. Department of Justice, Office of Justice Programs (DOJ/OJP), “Correctional Populations in the United
States, 1997,” Bureau of Justice Statistics, NCJ-177613 (November 2000) Table 1.2, p.2.
xcv
Ibid., Table 1.29, p.17.
xcvi
DOJ/OJP, “Prisoners in 2000,” Table 16, p. 11.
xcvii
DOJ/BJS, Sourcebook of Criminal Justice Statistics 1999, Table 6.47, p.519.
xcviii
The Sentencing Project, “Felony Disenfranchisement Laws in the United States,” (April 2001).
xcix
DOJ/OJP, “Prisoners in 2000,” Table 5, p.5.
c
Manza, Uggen, and Britton, “The Truly Disenfranchised,” Appendix 1.
ci
Ford/Carter Commission, Federal Election System Taskforce, John Mark Hansen, coordinator, “To Assure Pride
and Confidence in the Electoral Process: The Final Report of the Commission’s Taskforces,” Part VIII,
Disenfranchisement of Felons, (July 2001), pp. 1-2.
cii
Manza, Uggen, and Britton, “The Truly Disenfranchised,” p. 27.
ciii
Manza, Uggen, and Britton, “The Truly Disenfranchised,” Appendix 1. These state-by-state numbers differ
slightly from Marc Mauer’s estimates in The Sentencing Project’s reports, which find a total of 3.9 million

78

NOTES

Americans disenfranchised compared to Manza, Uggen, and Britton’s 4.2 million. I directly asked Marc Mauer
his opinion of Manza and Uggen’s estimate, and he stated that having read their report and their methods, he felt
the 4.2 million statistic to be an appropriate estimate.
civ
Ford/Carter Commission, Federal Election System Taskforce, “To Assure Pride and Confidence in the Electoral
Process,” Part VIII, pp. 4-5.
cv
The Sentencing Project, “Felony Disenfranchisement Laws in the United States,” (April 2001); Mauer and
Fellner, “Losing the Vote.”
cvi
Ibid., The Sentencing Project, “Felony Disenfranchisement Laws in the United States,” (April 2001).
cvii
Mauer and Fellner, “Losing the Vote.”
cviii
Interview with Carl Upchurch, Columbus, Ohio, September 27, 2001.
cix
Mauer and Fellner, “Losing the Vote.”
cx
Upchurch interview, September 27, 2001.
cxi
Department of Justice, Office of Justice Programs (DOJ/OJP), Joan Petersilia, “When Prisoners Return to the
Community: Political, Economic, and Social Consequences,” National Institute of Justice, NCJ-184253
(November 2000).
cxii
Upchurch interview, September 27, 2001.
cxiii
DOJ/OJP, Petersilia.
cxiv
Jan M. Chaiken, “Crunching Numbers: Crime and Incarceration at the End of the Millennium,” National
Institute of Justice Journal (January 2000), p. 14.
cxv
Telephone interview with Marika Litras, Department of Justice on August 16, 2001.
cxvi
United States Bureau of the Census, Lynne M. Casper and Loretta E. Bass, “Voting and Registration in the
Election of November 1996,” Table 2, p. 4.
cxvii
Upchurch interview, September 27, 2001.
cxviii
Rob Richie, Center for Voting and Democracy, “Let Ex-Felons Vote,” Letter to the Editor, New York Times,
August 13, 2001.
cxix
Ford/Carter Commission, Federal Election System Taskforce, John Mark Hansen, coordinator, “To Assure
Pride and Confidence in the Electoral Process: The Final Report of the Commission’s Taskforces,” Part I, Sizing
the Problem, National Commission on Federal Election Reform (July 2001), pp. 2-3.
cxx
Telephone interview with Christopher Uggen on August 9, 2001.
cxxi
Manza, Uggen, and Britton, “The Truly Disenfranchised,” p.1.
cxxii
Manza, Uggen, and Britton, “The Truly Disenfranchised,” pp. 3-5, 13-17.
cxxiii
Ibid., Table 2.
cxxiv
Ibid., p. 21.
cxxv
Uggen telephone interview, August 9, 2001.
Chapter IV
cxxvi
Marc Mauer, Race to Incarcerate, p. 8.
cxxvii
Critical Resistance, “Critical Resistance East: Beyond the Prison Industrial Complex,” Northeast Regional
Conference Program, March 9-11, 2001, Columbia University Law School, New York City.
cxxviii
CURE, “Justice for All,” CURE’s International Conference on Human Rights and Prison Reform, Program,
New York, New York, October 6-11, 2001; Mauer interview, July 10, 2001.
cxxix
Ibid.
cxxx
Upchurch interview, September 27, 2001.
cxxxi
Critical Resistance, “Critical Resistance East,”; CURE, “Justice for All.”
cxxxii
Thompson, Prison Issues.
cxxxiii
James, Social Identities, p. 490.
cxxxiv
The United States Constitution, Thirteenth Amendment.
cxxxv
Critical Resistance, “Critical Resistance East.”
cxxxvi
Upchurch interview, September 27, 2001.
cxxxvii
Mauer interview, July 10, 2001.
cxxxviii
Upchurch interview, September 27, 2001.
cxxxix
Human Rights Watch, “Felon Laws Bar 3.9 Million Americans from Voting.”

79

NOTES

cxl

Metzger, The National Law Journal.
Miles S. Rapoport, “Restoring the Vote,” The American Prospect vol. 12 no. 14 (August 13, 2001).
cxlii
Association of State Green Parties, “ASGP Statement on Voter Disenfranchisement in the 2000 Election.”
cxliii
Karl Josef Partsch, “Freedom of Conscience and Expression, and Political Freedoms,” in Louis Henkin, ed.,
The International Bill of Rights, pp.238-243, 387-8.
cxliv
Mauer and Fellner, “Losing the Vote.”
cxlv
Allard and Mauer, “Regaining the Vote.”
cxlvi
Jackson, Sr., Debt to Society.
cxlvii
Raskin, The American Prospect.
cxlviii
USCCR, Draft Staff Report, Chapter 5: The Reality of List Maintenance.
cxlix
Interview with Jack Zylman, Legislative Assistant to Representative Earl Hilliard (D-AL) on July 6, 2001.
cl
http://www.naacp.org.
cli
NAACP, “NAACP Appeals for Voting Rights for Ex-Felony Offenders,” press release, April 4, 2001.
clii
Earl Ofari Hutchinson, “Congress Must End Second Class Citizenship,” Afrocentricnews.net (2000).
cliii
Kinder and Sanders, Divided By Color, pp. 5-6.
cliv
American Civil Liberties Union (ACLU), “Citing Disenfranchisement of Black Voters, New ACLU Ad Assails
Election Day Fiasco, Calls for Reforms,” Press Release, New York, June 8, 2001.
clv
Ford/Carter Commission Report, (August 2001), p. 17.
clvi
Mauer interview, July 10, 2001.
clvii
USCCR, Draft Staff Report, Chapter 9: Findings and Recommendations.
clviii
Palast, The Nation.
clix
USCCR, Draft Staff Report, Chapter 9: Findings and Recommendations; ACLU, “U.S. Civil Rights
Commission Report on Florida Election ‘Too Gentle’ on Officials, ACLU Says,” Press Release, June 5, 2001.
clx
ACLU, “Citing Disenfranchisement of Black Voters.”
clxi
John Nichols, “Consortium: If standard had been ‘count every vote,’ Gore would have won Florida,” The
Online Beat, The Nation (November 12, 2001).
clxii
Ford/Carter Commission, Hearing 1 – Panel 2: Outside Assessments, March 26, 2001.
clxiii
Raskin, The American Prospect.
clxiv
Ford/Carter Commission, Hearing 1 – Panel 2: Outside Assessments, March 26, 2001.
clxv
Raskin, The American Prospect.
clxvi
Ibid.; ACLU, “Citing Disenfranchisement of Black Voters”; The National Commission on Federal Election
Reform Report; USCCR, Draft Staff Report.
clxvii
National Association for the Advancement of Colored People (NAACP), Washington Bureau, “Organizational
Co-Sponsors of the “Equal Protection of Voting Rights Act,” Washington, DC, June 26, 2001.
clxviii
NAACP-led Coalition in support of H.R. 1170/S. 565 “Equal Protection of Voting Rights Act,” meetings July
1 to September 1, 2001.
clxix
Interview with Keenan Keller, Democratic Counsel to the House Judiciary Committee, July 12, 2001; Zylman
interview, July 6, 2001.
clxx
Raskin, The American Prospect.
clxxi
The National Coalition on Black Civic Participation, “Voices of the Electorate,” http://www.bigvote.org.
cxli

Chapter V
clxxii
Zylman interview, July 6, 2001.
clxxiii
Keller interview, July 12, 2001.
clxxiv
Ford/Carter Commission, Hearing 1 – Panel 2: Outside Assessments, March 26, 2001.
clxxv
Manza, Uggen, and Britton, p. 4.
clxxvi
Uggen telephone interview, August 9, 2001.
clxxvii
Laura Conaway and James Ridgeway, “Democracy in Chains,” The Village Voice November 29 – December
5, 2000.
clxxviii
Rapoport, The American Prospect.
clxxix
Johnson, Debt to Society.
clxxx
H.R. 906, 106th Congress.

80

NOTES

clxxxi

Eisenkraft, Harvard Political Review.
H.R. 1228, “Constitutional Protection of the Right to Vote Act,” 107th Congress, Representative Davis,
sponsor.
clxxxiii
H.R. 1558, “Voter Registration Protection Act of 2001,” 107th Congress, Representative Hilliard, sponsor.
clxxxiv
Zylman interview, July 10, 2001.
clxxxv
H.R. 2830, “Voting Restoration Act,” 107th Congress, Representative Waters, sponsor.
clxxxvi
H.J. Res. 72, “Proposing an amendment to the Constitution of the United States regarding the right to vote,”
107th Congress, Representative Jackson, Jr., sponsor.
clxxxvii
Ford/Carter Commission Hearing 1 – Panel 2: Outside Assessments, March 26, 2001.
clxxxviii
S. Amdt. 2879, http://thomas.loc.gov/cgi-bin/bdquery/D?d107:22:./temp/~bdUkF8::.
clxxxix
The United States Constitution, Article I, Section 2, Clause 1.
cxc
Ibid., Article I, Section 4, Clause 1.
cxci
Two years after this hearing, the Federal Commission on Election Reform discussed the plausibility of federal
legislation intervening to obstruct state disenfranchisement practices. This committee of legal scholars quickly
determined that legislative authority could not by any means be found in Article I, and then continued to discuss
other potential means through which legislative action could find constitutional support. The Ford/Carter
Commission, Federal Commission on Election Reform, Kenneth A. Gross, Pamela S. Karlan, Stephen M.
Nickelsburg, Daniel R. Ortiz, Trevor Porter, Illustrative Applications—Enfranchising Felons.
cxcii
House of Representatives, One Hundred Sixth Congress, First Session, Hearing Before the Subcommittee on
the Constitution of the Committee on the Judiciary on H.R. 906, October 21, 1999, Serial No. 11.
cxciii
USCCR, Draft Staff Report, Chapter 1:Voting Systems Controls and Failures.
cxciv
House of Representatives, 106th Congress, First Session, Hearing on H.R. 906, October 21, 1999, Serial No.
11.
cxcv
Ibid.
cxcvi
Ibid.
cxcvii
Shapiro, American Prospect.
cxcviii
Shapiro, Yale Law Journal.
cxcix
The Sentencing Project, “Felony Disenfranchisement Laws in the United States,” (April 2001).
cc
The Sentencing Project, “Felony Disenfranchisement Laws in the United States,” (April 2001); Virginia General
Assembly, http://leg1.state.va.us/cgi-bin/legp504.exe?001+ful+CHAP0969.
cci
Florida Legislature, http://www.leg.state.fl.us/Welcome/index.cfm.
ccii
Alabama State Legislature, http://alisdb.legislature.state.al.us/acas/ACASLogin.asp; Maryland General
Assembly, http://mlis.state.md.us/#bill. In Alabama, the bill is House Bill 40, introduced by State
Representative Yvonne Kennedy. In Maryland, the bill is Senate Bill 184, co-sponsored by nine State Senators.
cciii
Nevada Legislature, http://www.leg.state.nv.us/. The bill was Assembly Joint Resolution 6, introduced in
1999.
cciv
Allard and Mauer, “Regaining the Vote.”
clxxxii

Chapter VI
United States Constitution, Fourteenth Amendment, Sections 1 and 2.
ccvi
Richardson v. Ramirez, 418 U.S. 24 (1974).
ccvii
Harvey, University of Pennsylvania Law Journal, p. 1160.
ccviii
Hunter v. Underwood, 471 U.S. 222 (1985).
ccix
Shapiro, Yale Law Journal, pp. 548-9.
ccx
Harvey, University of Pennsylvania Law Journal, n. 15.
ccxi
Mauer and Fellner, “Losing the Vote.”
ccxii
Interview with Jessie A. Allen at the New York University Law School’s Brennan Center for Justice, New
York, New York on August 30, 2001.
ccxiii
Shapiro, Yale Law Journal, p. 543.
ccxiv
Harvey, University of Pennsylvania Law Journal, p. 1185.
ccxv
Shapiro, Yale Law Journal; Allen interview, August 30, 2001.
ccv

81

NOTES

ccxvi

Telephone interview with Randall Marshall, Esq., ACLU of Florida Foundation, Inc. Legal Director and
attorney for Florida Conference of Black State Legislators et. al. v. Moore on August 1, 2001.
ccxvii
ACLU, “Black State Legislators, ACLU Voting Rights Project Challenge State’s Failure to Help ExOffenders With Process of Restoring Voting Rights,” March 14, 2001.
ccxviii
Second Judicial Circuit in and for Leon County, Florida, General Jurisdiction, Florida Conference of Black
State Legislators et. al. v. Moore.
ccxix
Marshall interview, August 1, 2001.
ccxx
United States District Court, Southern District of Florida, Thomas Johnson et. al. v. Jeb Bush et. al.; Plaintiffs’
Summary Judgment Brief in Johnson v. Bush.
ccxxi
Ibid.; Allen interview, August 30, 2001.
ccxxii
Ibid.; Thomas Johnson et. al. v. Jeb Bush et. al.
ccxxiii
Ford/Carter Commission, Kenneth A. Gross, Pamela S. Karlan, Stephen M. Nickelsburg, Daniel R. Ortiz,
Trevor Potter, Background Report of the Taskforce on Legal and Constitutional Issues, “The Federal Regulation of
Elections,” Part X (June 29, 2001).
ccxxiv
Thomas Johnson et. al. v. Jeb Bush et. al..
ccxxv
Ibid.; Thomas Johnson et. al. v. Jeb Bush et. al.
ccxxvi
Plaintiff’s Summary Judgement Brief in Johnson v. Bush.
ccxxvii
Ibid.; Allen interview, August 30, 2001.
ccxxviii
Personal correspondence with Jessie A. Allen, December 13, 2001.

Chapter VII
ccxxix

Rapoport, The American Prospect.

82