Released from Prison but Barred from the Ballot: Felons and Voting Rights

The Attorney General is among those pushing for abolition of ex-felon disenfranchisement laws.

A person makes a big mistake, gets convicted of a felony, and spends time in prison. Upon release, we often say that such people have “paid their debt to society.” However, one key aspect of a return to society is never reopened to an ex-felon in many states: the right to vote. The right to vote is a fundamental right under the U.S. Constitution, but can be forever lost by a single felony conviction. Civil rights groups and now the Attorney General of the U.S. have questioned the fairness and wisdom of the disenfranchisement of ex-convicts.

History of Voting-Right Deprivation for Ex-Felons

During the Jim Crow era following the Civil War and Reconstruction, several former Confederate states enacted measures designed to maintain the inferior legal status of African-Americans. Among those laws were the original statutes denying those convicted of felonies the right to vote. The states to enact such statutes arrested and prosecuted African-Americans at a disproportionately high rate—the result was the effective sealing of the ballot box on the basis of race. Eventually, the prevalent “law and order/tough on crime” policies of the late 20th Century would spur other states to enact similar disenfranchisement laws.

Several states currently bar ex-felons from voting at any time after a conviction. Yet Maine and Vermont allow even prison inmates to vote, while most of the remaining states restore voting rights to people convicted of felonies after completion of prison sentences and, in some states, parole.

Discriminatory Impact

Some would say that the insidious goal of those who enacted the relevant laws during the Jim Crow era has been achieved: Almost six million U.S. citizens, including 13% of African-American men, have lost the right to vote for life as a result of a felony conviction, according to the Brennan Center for Justice. The Brennan Center predicts that, if the disproportionate rate of conviction of African-American men continues, a third of such men in this generation may lose the right to vote.

For this and other reasons, U.S. Attorney General Eric Holder has called on states to repeal ex-felon disenfranchisement laws.

Counterproductive Results

Attorney General Holder relied upon a 2011 Florida study that found an 11% recidivism rate for ex-felons whose right to vote was reinstated, as compared with 33% for ex-felons in general. (See “States should lift life bans on voting for ex-felons: Attorney General,” Reuters.) Holder noted that denial of voting rights increases ex-convicts’ sense of stigma and isolation, which can in turn lead to a return to criminal conduct. The effects can be particularly dire considering that three-strikes laws and the War on Drugs have resulted in felony convictions for many people who have committed relatively small-time crimes.

Holder’s message embodies the principle that voting is a civic duty, as well as a right, and that voting is one of the most direct and accessible means by which citizens participate in a democratic society. To deny this right is to convey to the disenfranchised that they are not fully part of the community.

Cheerleading, Not Litigating

Although Holder spoke passionately in favor of repeal of state ex-felon disenfranchisement statutes, he didn’t go so far as to threaten to sue states who insist on maintaining such laws. Indeed, the Justice Department could take legal action in response to denial of ex-felons’ voting rights, as it has in response to voter I.D. laws in North Carolina and Texas. For the present, however, the Attorney General is relying on a softer approach. But that could change if public pressure mounts in response to campaigns by the ACLU, the Brennan Center for Justice, and other civil rights groups.

Democracy Restoration Act

In 2011, Representative John Conyers introduced the Democracy Restoration Act, which would have restored voting rights to ex-felons in federal elections. The bill “died” in committee (no action was taken on it by the House of Representatives during the session and it was sent to committee). It was reintroduced in 2012, but Congress didn’t enact it. The ACLU and other organizations still support the bill and it may yet be reintroduced.

Just the Beginning

Attorney General Holder’s strong statement in support of repeal of ex-felon disenfranchisement laws is potentially a start to a gradual change in state laws. As we have seen, though, public policy issues can “catch fire” and change can come in a sudden spurt. Or, it can take years. Check this site for updates as this issue evolves