These 4.6 million US citizens are barred from voting. A new court decision could help change that.
FILE - Voters stand in line waiting for ballot for the North Carolina primary at a library in Raleigh, N.C., on May 6, 2008. Tens of thousands of people serving punishments for felony convictions in North Carolina but who aren’t behind bars can now register to vote and cast ballots following an appeals court ruling. Expanding the scope of those able to register and vote began on Wednesday, July 27, 2022, the State Board of Elections said. (AP Photo/Jim R. Bounds, File)
In a democracy, losing the right to vote is a political death penalty. Those on whom this penalty is imposed are forever branded with a badge of inferiority and exiled from the political community.
No one deserves this fate.
While permanent felony disenfranchisement has a long history in this country, more and more states are ending this cruel practice. Today, only 11 states continue to impose this additional penalty on all felons who have served a prison sentence and been released.
A Sentencing Project report estimates that felony disenfranchisement affects 4.6 million U.S. citizens. That number includes incarcerated people and more than a million who have served their sentences.
That report notes that while the states that still retain disenfranchisement as a punishment are found throughout the country, those laws have been most popular in Southern and Border states, including Alabama, Florida, Mississippi, Tennessee and Virginia.
And of all those states, Florida, as the report puts it, “remains the nation’s disenfranchisement leader in absolute numbers, with over 1.1 million people currently banned from voting, often because they cannot afford to pay court-ordered monetary sanctions. An estimated 934,500 Floridians who have completed their sentences remain disenfranchised, despite a 2018 ballot referendum that promised to restore their voting rights.”
Last week, the Fifth Circuit Court of Appeals handed down a far-reaching decision on the constitutionality of another Southern state’s felony disenfranchisement law. The court found Mississippi’s permanent ban on voting by ex-cons to be unconstitutional.
It is doubtful that its decision will survive if Mississippi asks the Supreme Court to review it since court-approved felony disenfranchisement in 1974 and, in the interim, has become even more unsympathetic in prisoner rights cases. Nevertheless, the circuit court made a powerful case for why it is time to end permanent felony disenfranchisement everywhere in this country.
Legislation introduced last month in the House of Representatives by Reps. Jasmine Crockett (D-Mo.) and earlier this year in the Senate by Sen Ben Cardin (D-Md.) would do just that in federal elections. Their “Democracy Restoration Act” would end the permanent denial of voting rights for justice-involved individuals nationwide, and automatically restore voting rights to felons who are living in the community but barred from voting.
It deserves the support of everyone concerned about the health of American democracy.
The Fifth Circuit Court’s decision in the Mississippi case is a chilling reminder of the racial legacy and continuing disproportionate racial impact that the Democracy Restoration Act is designed to remedy.
The court traces the history of that ban to 1890, when Mississippi rewrote its constitution. That constitution, the court notes, “was adopted in reaction to the expansion of black suffrage and other political rights during Reconstruction.”
The Fifth Circuit points out that “after wresting control of state government from black leaders and their Republican allies through a campaign of violence and electoral fraud, Mississippi’s white political leadership called for a new state constitution that would ensure “a home government, under the control of the white people of the State.”
“From the outset,” the court continues, “the object of the 1890 Mississippi Constitutional Convention was clear: to ensure the political supremacy of the white race. Key to accomplishing this end was a package of ‘voter qualifications and procedures’ that delegates adopted ‘to exclude black citizens from participation in the electoral process.’”
Such hostility to Black citizens was not confined to Mississippi.
In Virginia in 1871, for example, a court described prisoners as “slaves of the state.” It ruled that, because of his crime, a prisoner has “not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him.”
The Fifth Circuit goes beyond history and documents the continuing impact of permanent felony disenfranchisement on Blacks in Mississippi. Between 1994 and 2017, it states, “58% of the 29,000 citizens who were convicted of disenfranchising offenses and have completed all terms of their sentences were black.” The comparable number for whites was 36 percent.
Today, across the United States, nearly 40 percent of the millions of people disenfranchised by a felony conviction are Black. This means, as the Vera Institute of Justice explains, that “Black Americans are disenfranchised for felony conviction histories at rates more than four times those of all other races combined: more than 7 percent of Black people have been disenfranchised, compared to just 1.8 percent of people from all other races.”
The Fifth Circuit’s decision did not stop there. It did something quite a bit more novel when it found permanently barring felons from voting to violate the Eighth Amendment’s ban on cruel and unusual punishment.
It courageously rejected the current Supreme Court’s originalist and cramped interpretation of the Eighth Amendment in favor of a different understanding. That understanding, which is rooted in a long line of the Supreme Court’s own precedents, holds that the prohibition on cruel punishment does not have a fixed meaning. Instead, so the argument goes, the Eighth Amendment takes its meaning from the “evolving standards of decency that mark the progress of a maturing society.”
Those standards of decency are reflected in what the Fifth Circuit Court called a clear “national consensus” against permanently banning felons from voting. “An exhaustive review of state laws,” the court observed “shows that the overwhelming majority of states oppose the punishment of permanently disenfranchising felons who have completed all terms of their sentences.”
In addition, the direction of change is moving decisively against that practice, with 16 states having ended it in recent years.
But the court went beyond citing this evidence to say that felony disenfranchisement does not serve any legitimate penological purpose. It does not, the court argues, advance the “traditional justifications for punishment … incapacitation, rehabilitation, deterrence and retribution.”
Permanent disenfranchisement of all felons amounts to punishment for punishment’s sake, the very definition of sadistic cruelty.
In the end, the court’s review and assessment of the payoff, or lack thereof, of depriving felons of the right to vote should add impetus to efforts in Congress to pass the Democracy Restoration Act. It also offers a convincing argument and model for state courts and legislatures in the 11 outlier states to follow in revisiting and ending their own felony disenfranchisement laws.
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is author of numerous books on America’s death penalty, including “Gruesome Spectacles: Botched Executions and America’s Death Penalty” and “Lethal Injection and the False Promise of Humane Execution.” The views expressed here do not represent Amherst College.