Many people don’t realize that Jim Crow laws existed in the North, perhaps most notably in New York.
Our new study of the Empire State’s constitutional history, Jim Crow in New York, traces the current criminal disenfranchisement law to a century-long effort to keep African-American citizens out of the voting booth. And as our report makes it disturbingly clear: New York’s felon voting bar has deep roots in Jim Crow.
More than 108,000 New Yorkers are currently disenfranchised under the law. And 80% of those who have lost the right to vote are people of color.
Here is the history. For about 100 years, New York lawmakers found various ways to keep African Americans from voting. First, of course, there was slavery. After emancipation, two laws continued to be especially effective: one that required blacks - and only blacks - to own a certain amount of real property in order to vote; and another that allowed counties to disenfranchise those convicted of “infamous crimes.”
African-American suffrage was the subject of much debate at the 1821 and 1846 constitutional conventions, and the transcripts contain some astounding racist rhetoric. One theme that occurs again and again is an alleged criminal propensity among African Americans as a reason to restrict the black vote. In a refrain that echoes throughout the century-long suffrage debate, Delegate Samuel Young implored in 1821: “Look to your jails and penitentiaries. By whom are they filled? By the very race whom is now proposed to cloth with the power of deciding upon your political rights.”
By 1872, New York distinguished itself as the only state in the union to make property ownership a voting requirement exclusively for African Americans. But the Fifteenth Amendment forced New York to revisit its constitution. Governor John Hoffman convened a few dozen “eminent citizens” to figure out what to do.
Governor Hoffman’s commission eliminated a few sections, and added some words here and there. The result was a Jim Crow “bait and switch” that continues to be the law today.
In 1874, four years after the Fifteenth Amendment was ratified and long after the rest of the country, New York’s legislature had no choice but to accept the commission’s recommendation and eliminate the property requirements for African-American voters. However, the same commission also recommended a small and barely noticed change to the wording of the criminal disenfranchisement provision which had an enormous – and lasting – adverse impact on African-American suffrage. During slavery and the period when the property requirements were imposed on African-Americans, New York’s criminal disenfranchisement law was merely permissive: that is, the state constitution left it to the discretion of individual counties whether to disenfranchise those with criminal convictions. The same year the Fifteenth Amendment forced New York to eliminate its property requirement, the state amended the constitution from allowing counties to decide whether to disenfranchise those convicted of crimes, to requiring disenfranchisement throughout the state of anyone convicted of an “infamous crime.”
New York’s calculating constitutional amendment falls into a national pattern in which criminal disenfranchisement laws provided a useful means of circumventing the Reconstruction Amendments and suppressing black voters. Between 1865 and 1900, 19 other states passed similar laws. By 1900, 38 states had some type of criminal voting restriction. This national movement, together with New York’s long and notorious history of deliberate efforts to disenfranchise African Americans, the enduring, widespread and well-documented belief among policymakers that blacks were more likely to commit crimes, and the timing corresponding with the elimination of the black property requirements, all lead to the same conclusion: the amendment was intended to suppress the African-American vote in New York.
The same law is on the books today, and its intended effects continue. “When a law can be traced clearly to a racially discriminatory start-point, the burden of proving the absence of racial taint in the current operation of the law should fall on those who seek to justify its continued existence,” Charles J. Ogletree, Jesse Climenko Professor of Law at Harvard, wrote in the introduction to the report.
There is a broadening consensus across the country that restoring the right to vote to people living in the community is not just important for our democracy, but that giving people a voice in the community makes them stakeholders and less likely to commit future crimes.
"When people with criminal convictions re-enter society after periods of incarceration, although often jobless, isolated, and broken, they must begin to re-connect and re-engage with their communities. We have a stake in whether they succeed," Professor Ogletree wrote.
Today, New York’s election law disenfranchises people while in prison and on parole.
There are currently several bills pending in the New York State Assembly and Senate that would restore the voting rights to those on parole.
In 2009, Senator Montgomery and Assemblyman Wright introduced the Voting Rights Notification and Registration Act. The bill would require the Department of Corrections and the Board of Parole to provide individuals information about their voting rights once they regained eligibility. The bill passed the full Assembly in June 2009 and is currently pending in the Senate Elections Committee. In April 2009, the Brennan Center testified in favor of this bill.
Also in 2009, Assemblyman O’Donnell and Senator Thompson introduced a bill to restore the voting rights to people on parole. The bills have been referred to the Assembly Committee on Election Law and the Senate Committee on Elections.
The Democracy Restoration Act, introduced in July, is federal legislation that seeks to restore voting rights in federal elections to the nearly 4 million disenfranchised Americans who are out of prison and living in the community. The bill was introduced by Senator Russell Feingold (D-WI) and Representative John Conyers (D-MI).
Harvard Professor Laurence Tribe will head a DOJ-push to strengthen indigent defense. Attorney General Holder urged renewed commitment to legal defense for the poor at this year's Brennan Legacy Awards Dinner and at the 2010 Indigent Defense Symposium. "Ours is an adversarial system of justice -- it requires lawyers on both sides who effectively represent their client's interests," Holder said at our dinner. "When defense counsel are handicapped by lack of training, time, and resources...we start to wonder: Is justice being done? Is justice being served?"
Yesterday, wordspread that the Census Bureau would make a powerful new tool available to the states, counties, and cities needing to redraw political districts after the 2010 census. Along with the standard datafile telling us how many people are assigned to any geographical slice of the country, the Bureau will tell us, at the same time, how many are incarcerated.
This is a big step toward correcting a problem that the Brennan Center’s been working on for most of the decade. Right now, people in prison show up in the census data at the blocks where they are incarcerated, rather than at the addresses they came from in their home communities. The two are usually far from each other. And with the nation’s rising incarceration rate, they lead to a systematic distortion of the population picture.
When districts are based on this data, they build the distortion into the distribution of local democracy. Districts are constructed on the backs of “ghost voters,” packing in prisoners who count toward the district size but who, with few exceptions, are not permitted to vote, and who have no connection at all to the other residents of the district or its welfare. This artificially inflates the political power of voters in prison districts, skewing the incentives of politicians there — and it artificially deflates the power of voters everywhere else. Peter Wagner has done an enormous amount of homework to show exactly how severe the distortion is, complete with a calculator to drive the math home.
For example, after the last census, 1300 of the 1400 people allotted to Ward 2 of the Anamosa, Iowa, city council were in prison. This left political power completely lopsided: the few others in ward 2 had far more leverage than any of their neighbors in town. Indeed, in districts so distorted, we’d hardly recognize what passes for democracy. In 2006, the city council seat for Anamosa’s Ward 2 was won with two write-in votes — one cast by the winner’s wife.
The right way to handle prison populations is to count people at their last known address before incarceration, which is where virtually all prisoners return when they are released. There are already bills afloat inatleastfivestates in this legislative session, on top of a federal bill, to accomplish just that (here’s a complete legislative list). And it’s already required by Mississippi law, at least for local districts. But the clock has run out on administrative capacity to do the same nationwide, for each and every facility, before redistricting starts.
So we turn to the next best thing: even where it’s not possible to get prisoners’ addresses right, it’s possible to take on half of the skew by ensuring that they’re not inflating the locations that are wrong. Instead, incarcerated populations would be addressed as part of the jurisdiction generally, without a more specific geographic tie, just like servicemembers and federal government personnel who are overseas on Census Day. These people are assigned to the state whence they came in order to apportion members of Congress, but not assigned to a specific address within that state that would affect redistricting.
Removing this half of the skew would not completely fix the prison distortion, by reconnecting the incarcerated population to the communities to which they most tangibly belong. But it would take a significant step toward making districts more fair. And this step would benefit all of the remaining voters in the jurisdiction, whose political power is now artificially diluted.
Some jurisdictions already do this. About 1/3 of the counties with prisons in New York State, for example, don’t tie prison populations to local districts. California counties with large prison populations have asked for permission to make the change; for Colorado counties, it’s required. Until yesterday, however, any new jurisdiction that wanted to follow these leaders had to go through the legwork of collecting the necessary data.
The Census Bureau’s new dataset eliminates that cost entirely. All you need to fix half of the skew is to use the Bureau’s incarceration numbers to reallocate prison populations from lopsided districts to the jurisdiction as a whole. And now that the Bureau will deliver incarceration counts at the same time as the other redistricting data, those that want to draw fairer districts, anywhere in the country, will find it much easier to do so.
originally published in El Diario;translation below.
2009 was a big year for Latinos. We’ve had some setbacks, including an economic crisis in which the unemployment rate among Latino workers is almost thirteen percent. We also learned that 41% of our high school girls fail to graduate on time, if at all, and that they have the highest teen pregnancy rate of any racial or ethnic group.
But, we’ve had some enormous accomplishments. Sonia Sotomayor’s nomination and confirmation to be a Supreme Court Justice can and should be a source of pride for all Latinos. Latinos are also at the helm of the Civil Rights Division of the Department of Justice and Department of Labor.
We’ve also emerged victorious in the face of threats to our equal and fair participation in the life of the country. The Supreme Court rebuffed a carefully-orchestrated attack on arguably the country’s most successful piece of civil rights legislation, the Voting Rights Act. The Act prohibits states and local governments from enacting voting practices that discriminate based on race, and has been instrumental in breaking down voting barriers and bringing fair political representation to Latinos all over the country.
Those victories are important because large challenges loom ahead for us in 2010, especially in the area of immigration reform, and the anti-Latino bias that will accompany that issue. The 2010 elections will provide us with the opportunity to voice our concerns on important issues, but we must be politically involved. Two national reforms would help us translate our numbers into political influence, Voter Registration Modernization and the Democracy Restoration Act.
Voter Registration Modernization is an automated system of registering eligible consenting citizens from existing government lists, it could enfranchise the up to 65 million eligible Americans, including many Latinos, who are not currently registered to vote.
The Democracy Restoration Act allows American citizens returning to their communities from prison to vote in federal elections, encouraging these persons to become invested and involved in the well-being of their communities. While it is hard to say how many of the four million people living and working in the community who cannot vote because of a past criminal conviction are Latinos, we can expect those numbers to be sizeable, given that Latinos comprise up to 20% of the incarcerated population. These two reforms will allow us to be well-armed against the predicted and repeated barrage of misinformation and hate.
So with our setbacks making us more resilient and committed, our accomplishments making us louder and prouder, our victories making us stronger, let’s use our potential to make great gains for our communities and country in 2010.
Latinos in Port Chester, New York, have a new and exciting opportunity to make their voices heard. On Friday, a federal judge settled a three-year dispute concerning how the Village elects its Village trustees. In response to a lawsuit filed by the Department of Justice under the Voting Rights Act, the judge accepted the Village's proposal to use an alternative system called "cumulative voting" rather than carving the Village into new electoral districts. Latinos make up about half of Port Chester's population, but no Latino had ever been elected to the Village's Board of Trustees or to the office of mayor. The Department of Justice sued under the Voting Rights Act, arguing that the town's at-large elections impeded opportunities for the Village's Latino population to elect its own representatives. The judge agreed that the Village's at-large election system denied the Latino population fair representation and the issue then became how to remedy the injustice.
The Brennan Center, representing FairVote as amicus curiae, offered a few creative proposals for how Port Chester could change its electoral system to assure fair representation to the town's Latino population. The Department of Justice argued that the Village should be divided into districts, each one of which would elect one Village representative. Districts are the most common remedy to Voting Rights Act violations, and when drawn correctly, can be effective at improving minority representation. However, drawing districts takes time and expertise, and it often results in partisan jousting. Moreover, drawing the lines can often carve up communities for the sake of the electoral map. In Port Chester, which is about 2.4 square miles and has about 28,000 people, districting would result in small geographic areas with potentially residents on one side of the street being in a different district than their neighbors on the other side.
Moreover, districts are of limited advantage to the minority groups living outside the minority representation districts. This was a special concern in Port Chester where some 80 odd percent of the citizen voting-age Latino population lived outside the proposed remedial district. As the Latino population of Port Chester continues to grow (estimates are that it has grown 73% from 1990 to 2006), having only one district which elects the minority-preferred candidate could create another form of underrepresentation.
Cumulative Voting vs. Choice Voting
As an alternative, Port Chester proposed cumulative voting as a remedy, which allows citizens to cast multiple votes for a given candidate for a given seat. In the case of Port Chester, the six Trustee positions would be up all at one time, so the voters would get six votes to cast among the candidates. If a sufficient number of voters band together behind a candidate by "plumping" their votes, that is, giving all their votes to one candidate, those voters will elect their candidate.
The Brennan Center and FairVote, while supporting cumulative voting as a remedy, proposed an alternate system known as "choice voting." Like cumulative voting, choice voting allows voters from across the jurisdiction to band together, but requires less discipline from voters. In choice voting, voters rank their candidates in the order they prefer them-first choice gets 1, second choice gets 2, and so forth. If a voter rates an unviable candidate first, then the ballot gets distributed to the voter's next highest ranked viable candidate. If a candidate achieves enough votes for victory, then any extra votes for that candidate are distributed to the voters' next viable candidate. The Cambridge, Massachusetts, city council and school board has been electing its members for decades using choice voting and it has been credited for the diversity in those bodies. Choice voting works well when there are multiple candidates preferred by the minority community because there's little harm to ranking one preferred candidate first or second:under choice voting, whoever is the most viable will get credited their supporters' votes, and/or if one candidate has greater support but both candidates are strong, the extraneous votes for the strongest candidate will get distributed to the second-favorite candidate. Choice voting also facilitates the building of coalitions. For example, a Port Chester voting bloc that consists of just about 29% of the turn-out could elect two candidates. A coalition of Latino and African-American voters, with a combined citizen voting age population in 2006 of more than 30%, could do that and no one would have to squabble over which candidate was being ranked first and who was being ranked second. As long as both communities' preferred candidates were ranked first or second, both could be elected if turn-out was high enough.
The court accepted Port Chester's proposal and has ordered the Village to elect its Trustees using cumulative voting. This is a very exciting opportunity for Latino voices to be heard in the Port Chester political process, but Port Chester Latinos must be vigilant about making cumulative voting work for them. All alternate systems depend on enough seats being up for grabs and there being sufficient turn-out to satisfy the mathematical thresholds on which the systems rely. Accordingly, in order for these alternate systems to succeed in increasing minority representation there must be ample voter education and mobilization. Opportunities like this do not come along every day. Port Chester's Latinos now have a real opportunity to elect their candidate of choice, but they must get out and vote!
Today marks the 44th anniversary of the landmark Voting Rights Act, passed to reverse the Jim Crow laws, which effectively denied African Americans the right to vote for decades.
The Act has accomplished great things. It eliminated poll taxes, literacy tests and other ballot box barriers. Within a few years of its passage, voter registration rates among African Americans doubled, tripled and in some states quadrupled.
Fast forward to the 2008 presidential election and its surge of African-American voter participation. Although the protections of the Act remain vital, according to one recent report, African-American women voters turned out at higher rates in November than any other racial, ethnic or gender group.
But one Jim Crow relic continues to elude the strong arms of the Voting Rights Act. Nationwide, 5.3 million American citizens are denied the right to vote because of a criminal conviction in their past. Four million are people who are out of prison, living in the community. Criminal disenfranchisement laws differ state-to-state. All told, 35 states continue to disenfranchise people released from prison.
Let's be clear, these laws were put in place right alongside poll taxes and literacy tests. In the late 1800s, as part of larger backlash against the adoption of the Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution, criminal disenfranchisement laws spread throughout the country. At the same time, states expanded their criminal codes to punish offenses that they believed freed slaves were most likely to commit, including vagrancy, petty larceny and bigamy. This targeted criminalization and criminal disenfranchisement combined to produce the legal loss of voting rights, which effectively suppressed the power of African Americans for decades.
The laws' intended effects continue to this day. Nationwide, 13 percent of African-American men have lost the right to vote because of a criminal conviction. In eight states, more than 15 percent of African Americans cannot vote, and three of those states disenfranchise more than 20 percent of the African-American voting-age population. Given current rates of incarceration, 3 in 10 of the next generation of African-American men will lose the right to vote at some point in their lifetime.
Despite the clear evidence of discriminatory intent and impact, courts continue to uphold these laws, finding that Congress did not intend to prohibit criminal disenfranchisement when it passed the Voting Rights Act. Last week, the First Circuit Court of Appeals was the latest to issue such a ruling.
Luckily, we have three branches of government, and Congress now has the opportunity to declare loud and clear that it is time to consign these laws to the Jim Crow past. Senator Russ Feingold (D-WI) and Representative John Conyers (D-MI) have introduced the Democracy Restoration Act, a bill that seeks to restore voting rights in federal elections to all Americans who are out of prison, living in the community. The Democracy Restoration Act is the Voting Rights Act of the 21st Century. Congress should move quickly to end voting discrimination once and for all.
It turns out democracy breeds strange bedfellows. On Friday, Senator Russ Feingold (D-WI) and Representative John Conyers (D-MI) introduced the Democracy Restoration Act of 2009, a bill that seeks to restore voting rights in federal elections to nearly 4 million American citizens with past criminal convictions who are out of prison and living in the community. Who would have thought that police chiefs and former prison inmates would ever unite behind the same cause? But that's exactly what is happening. A large and growing coalition of diverse interests including law enforcement officers, religious leaders, civil rights organizations and millions of formerly incarcerated people across the country has come together to restore the right to vote. Now members of Congress have joined the crowd.
Nationwide, 5.3. million Americans are disenfranchised because of a criminal conviction in their past. Four million are people who are out of prison and living in the community -- working, paying taxes and raising families. All told, 35 states continue to disenfranchise people who are not in prison, often for decades and sometimes for life.
Make no mistake, criminal disenfranchisement laws are firmly rooted in Jim Crow. They were put in place right alongside poll taxes and literacy tests and were intended to keep African Americans from the polls. Many states passed criminal disenfranchisement laws at the end of Reconstruction and targeted crimes most likely to be committed by freed slaves like larceny, bigamy and vagrancy. Today the laws continue to have their intended effect: nationwide 13% of African-American men are disenfranchised. If current incarceration rates continue, 1 in 3 African-American men will lose the right to vote at some point in their lives.
Criminal disenfranchisement laws form a patchwork across the country. Consider for example, people in Kentucky lose the right to vote for life, while just across the border in Ohio and Indiana people can vote the day they step out of prison. Someone in Utah can vote as long as he is not in prison, while in Colorado he could vote while on probation but not on parole; in New Mexico he would have to complete both probation and parole, and in Arizona he could be disenfranchised for life. It is no wonder both election officials and the public are confused, resulting in widespread and persistent misinformation and the de facto disenfranchisement of hundreds of thousands of eligible voters across the country.
The shameful roots of these laws and the conflicting standards among the states are just two factors that highlight the need for federal reform. The Democracy Restoration Act provides just that: It would restore voting rights in federal elections to every American citizen who is out of prison, living in the community.
The foundation for the bill has been steadily building in the states. In the last decade, 20 states have restored voting rights or eased the restoration process. This groundswell has created a national chorus calling for change which now includes law enforcement and criminal justice professionals and a broad spectrum of religious leaders. These groups have come together based on a shared understanding that restoring voting rights to people in the community not only strengthens our democracy, it helps prevent recidivism, protects public safety and is true to the fundamental principles of redemption and forgiveness.
The importance of having a voice in the community is most aptly described by those who have found theirs. The recent Brennan Center publication My First Vote is a compilation of stories from Americans who voted for the first time in November 2008 after having lost, and then regained, their voting rights after a conviction. According to a mother in California who is featured in the collection, "voting isn't entirely about the candidate who wins; it's about the inspiration and hope people feel when they have a voice they can use to bring real change."
The Democracy Restoration Act has just been introduced, and it is still full of inspiration and hope. Congress should move quickly to make it the law of the land. Strange bedfellows agree.
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