Brennan Center for Justice

Cross-posted from Alternet.com 

This is a big year for American democracy. Hundreds of thousands of new voters
are not only registering, but are actually showing up at the polls. States
whose primary races have never counted before are suddenly the center of
attention. Voters in Wyoming, Mississippi, North Carolina,
and Kentucky,
who have long gone ignored during primary season, finally find themselves with
a voice and a vote. This year they matter.

Despite this, our democracy still falls far short of its promise to be a
government that truly represents the will of its citizens. Across the country
there are 5.3
million Americans who are denied the right to vote because of a felony
conviction in their past. Nearly 4 million of these people are not in prison; they
live, work, pay taxes, and raise families in our communities, but remain
disenfranchised for years, often for decades, and sometimes for life.

States vary
widely on when they restore voting rights to former prisoners. Maine and Vermont
do not disenfranchise people with convictions; even prisoners may vote there.
Thirteen states and the District of Columbia disenfranchise people only while
they are incarcerated; five states disenfranchise those who are incarcerated or
on parole, but allow people on probation to vote; 20 states disenfranchise
people in prison, on parole, and on probation; and 10 states permanently
disenfranchise some categories of people who have completed their correctional
supervision. Kentucky and Virginia are the last two remaining states
that permanently disenfranchise all people with felony convictions, unless they
apply for and receive individual, discretionary clemency from the governor.

Jim Crow Roots

To fully appreciate how these laws compromise our democracy, it is important
to understand their deep roots
in the troubled history of American race relations. In the late 1800s these laws
spread as part of a larger
backlash
against the adoption of the Reconstruction Amendments—the
Thirteenth, Fourteenth, and Fifteenth Amendments of the U.S.
Constitution—which ended slavery, granted equal citizenship to freed
slaves, and prohibited
racial discrimination in voting.

Over time, Southern Democrats sought to solidify their hold on the region by
modifying voting laws in ways that would exclude African-Americans from the
polls. Despite their newfound eligibility to vote, many freed slaves remained
effectively disenfranchised.

Violence and intimidation were rampant. The legal barriers
employed—including literacy tests, residency requirements, grandfather
clauses, and poll
taxes—while race-neutral on their face, were intentional barriers to
African-American voting.

Felony disenfranchisement laws were a key part
of this effort. Between 1865 and 1900, 18 states adopted laws restricting the
voting rights of criminal offenders. By 1900, 38 states had some type of felon
voting restriction, most of which disenfranchised convicted felons until they
received a pardon. At the same time, states expanded the criminal codes to
punish offenses that they believed targeted freedmen, including vagrancy, petty
larceny, miscegenation, bigamy, and receiving stolen goods. Aggressive arrest
and conviction efforts followed, motivated by the practice of "convict
leasing," whereby former slaves were convicted of crimes and then leased
out to work the very plantations and factories from which they had ostensibly
been freed. Thus targeted criminalization and felony disenfranchisement
combined to produce both practical re-enslavement and the legal loss of voting
rights, usually for life, which effectively suppressed the political power of
African Americans for decades.

The disproportionate
impact
of felony disenfranchisement laws on people of color continues to
this day. Nationwide, 13 percent of African-American men have lost the
right to
vote, a rate that is seven times the national average. In eight states,
more
than 15 percent of African-Americans cannot vote due to a felony
conviction,
and four of those states—Arizona, Iowa, Kentucky, and
Nebraska—disenfranchise more than 20 percent of their African-American
voting-age
population.

These statistics mirror stark racial disparities in the criminal justice
system. A recent study
by the Pew Center on the States revealed that 1 in
100 Americans is now behind bars. That figure is startling enough, but the
study also reports that 1 in 9 African-American men between the ages of 20 and
34 is in prison.

The Ripple Effect of Disenfranchisement

Felony disenfranchisement laws do not only impact those who lose their
voting rights. Entire communities lose their political capital when their
citizens cannot vote. Denying the vote to one person has a ripple effect,
dramatically decreasing the political power of urban and minority communities.

Evidence suggests that disenfranchising the head of a household can
discourage his or her entire family from civic participation. Many people's
first experience with voting or political engagement comes through their
parents—by joining them at a town meeting, attending a school board hearing,
or accompanying them into the voting booth. A parent can provide critical "how-to's" of voting, including such basics as how to
register and where to vote. In fact, of the various factors included in the
study, the parent's political participation had the greatest effect on the
child's initial decision to vote.

Andres Idarraga, who recently had
his right to vote restored by a recent change to Rhode Island's law,
explained, "coming from a family in which voting had rarely, if ever, been
discussed, this was a new beginning."

Throughout the country, minority communities have lost political influence
thanks to felony disenfranchisement laws. In the last 25 years, as
incarceration rates skyrocketed and African-Americans were sent to prison at a
rate seven times that of whites, the political power of minority communities has
been decimated. It's a simple equation: communities with high rates of people with felony convictions have
fewer votes to cast. Consequently, all residents of these communities, not just
those with convictions, lose their political influence.

What's more, even when people with felony convictions are eligible to vote,
they are often de facto disenfranchised due to bureaucratic barriers. In 2003, Alabama
could not process more than 80 percent of applications within statutory time
limits, and completely failed to respond to dozens of applications. And in New York,
Brennan Center surveys have repeatedly uncovered
widespread confusion and misinformation among elections officials. In 2005, one
third of local election boards mistakenly advised that people could not vote
while on probation, and many illegally required unnecessary documentation
before allowing people to register.

Dispelling Disenfranchisement Myths, Restoring Democracy

Fortunately, there are signs of progress. Advocates, policy-makers, and some
unusual allies have made great strides towards restoring voting rights, and
have built significant national momentum towards building a more just and
inclusive democracy.

Critics of voting restoration argue that disenfranchisement is an
appropriate punishment for breaking the law. But in fact, many in law
enforcement have come to believe that felony disenfranchisement laws do more
harm than good. The American Probation and Parole Association recently released
a resolution
calling for restoration of voting rights upon completion of prison, finding
that "disenfranchisement laws work against the successful reentry of
offenders." Many realize
that, in terms of public safety, bringing people into the political process
makes them stakeholders, helping to steer former offenders away from future
crimes. As one Kentucky
prosecutor wrote,
"Voting shows a commitment to the future of the community." Branding
people as political outsiders by barring them from the polls disrupts reentry
into the community and does not do anything to keep people from re-offending.
There is absolutely no credible evidence showing that continuing to
disenfranchise people after release from prison serves any legitimate law
enforcement purpose. Disenfranchisement has nothing to do with being
"tough on crime."

Since 1997, 16
states have reformed their laws to expand the franchise or ease voting
rights restoration procedures. Recent
reforms include an executive
order signed by then-Governor Tom Vilsack in Iowa
which restored voting rights to 80,000 Iowa
citizens on Independence Day, 2005. On Election Day 2006, Rhode Island voters were the first in the
country to approve
a state constitutional amendment authorizing automatic restoration of voting
rights to people as soon as they are released from prison. The Rhode Island
Department of Corrections became a voter registration agency, and now every
individual is handed a voter registration form on the day they leave prison. In
April 2007, Florida Governor Charlie Crist issued new clemency
rules ending that state's policy of permanent disenfranchisement for all felony
offenders. Also in April 2007, Maryland Governor Martin O'Malley signed
a law streamlining the state's complicated restoration system by automatically
restoring voting rights upon completion of sentence.

This law also eliminated the requirement that
people in Maryland pay off any court-imposed fees and fines before being able
to register to vote.

And just last month, Kentucky Governor Steve Beshear eliminated
some of the burdensome requirements his predecessor imposed on people trying to
get their voting rights restored. People with felony convictions are
disenfranchised for life in Kentucky
and can only regain their right to vote by receiving clemency from the
governor.

Beshear's predecessor had required all applicants to provide three character
references and write an essay explaining why they should get their right to
vote back. While Kentucky
still has a long way to go, Beshear's executive action was certainly an important step.

Still, millions of U.S.
citizens continue to be denied the right to vote. This year, Congress has
decided to address the issue on a national level. Senator Russ Feingold and
Representative John Conyers will soon introduce the Democracy
Restoration Act, a bill that seeks to restore voting rights in federal
elections to all Americans who have been released from prison and are living in
the community. In February, Senator Feingold, joined by former Republican
Congressman and Bush I cabinet member, Jack Kemp, wrote,
"once the criminal justice system has determined that [people] are ready
to return to the community, they should receive the rights and responsibilities
that come with that status, and should not continue to be relegated to
second-class citizenship."

The energy and optimism spreading across our country this election season is
palpable. But our democracy stands for nothing if not the fundamental tenet
that each citizen is entitled to one vote, and each vote counts the same
regardless of who casts it. The promise of our democracy will never be realized
if 4 million Americans remain disenfranchised. It is time to end this last
blanket barrier to the ballot box.