De Facto Disenfranchisement
Voting is both a fundamental right and a civic duty. However there remains a significant blanket barrier to the franchise: 5.3 million American citizens are not allowed to vote because of criminal convictions. As many as four million of these people live, work, and raise families in our communities, but because of convictions in their past they are still denied the right to vote.
State laws vary widely on when voting rights are restored. Maine and Vermont do not deny the franchise based on a criminal conviction; even prisoners may vote there. Kentucky and Virginia are the last two states to continue to permanently disenfranchise all people with felony convictions unless they receive individual, discretionary clemency from the governor. The remaining 46 states fall somewhere in between, with the varied state laws forming a patchwork across the country. Some states restore voting rights upon release from prison, others upon completion of probation and parole, and others impose waiting periods or other contingencies and categories before restoring voting rights.
This disenfranchisement by law of millions of American citizens is only half the story. Across the country there is persistent confusion among election officials about their state's felony disenfranchisement policies. Election officials receive little or no training on these laws, and there is little or no coordination or communication between election offices and the criminal justice system. These factors, coupled with complex laws and complicated registration procedures, result in the mass dissemination of inaccurate and misleading information, which in turn leads to the de facto disenfranchisement of untold hundreds of thousands of eligible would-be voters throughout the country.
De facto disenfranchisement has devastating long-term effects in communities across the country. Once a single local election official misinforms a citizen that he is not eligible to vote because of a past conviction, it is unlikely that citizen will ever follow up or make a second inquiry. Without further public education or outreach, the citizen will mistakenly believe that he is ineligible to vote for years, decades, or maybe the rest of his life. And that same citizen may pass along that same inaccurate information to his peers, family members and neighbors, creating a lasting ripple of de facto disenfranchisement across his community.
Between 2003 and 2008, the ACLU and the Brennan Center for Justice, together with our state partners, conducted interviews with election officials in 23 states to determine the level of knowledge of their state's felony disenfranchisement law. This report summarizes the results of telephone interviews conducted in Arizona, Colorado, Kentucky, Louisiana, Mississippi, New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee and Washington.
Prior to conducting interviews in each state, the ACLU and the Brennan Center performed a thorough legal analysis of the state's felony disenfranchisement law. A separate set of questions was designed for each state based on the state law and the specific information sought in the state. The same questions were asked of each election official in the state and their answers were carefully documented along with the official's name and the date and time of the interview. Where feasible, we interviewed a representative of every local election office in each state. In states where a large number of localities made this difficult, a representative sample was identified.
The interviews revealed an alarming national trend of de facto disenfranchisement:
- Election officials do not understand the basic voter eligibility rules governing people with criminal convictions;
- Election officials do not understand the basic registration procedures for people with criminal convictions;
- Interviewers experienced various problems communicating with election officials, including repeated unanswered telephone calls and bureaucratic runaround.
About the Authors
Erika Wood is the Deputy Director of the Democracy Program at the Brennan Center for Justice where she lead's the Right to Vote Project, a national campaign to restore voting rights to people with criminal records, and works on redistricting reform as part of the Center's Government Accountability Project. Ms. Wood is an Adjunct Professor at NYU Law School where she teaches the Brennan Center Public Policy Advocacy Clinic. Prior to joining the Center, Ms. Wood was an attorney with the Legal Action Center where she worked on cases involving HIV/AIDS discrimination and privacy, as well as various criminal justice issues. Ms. Wood earned her B.A. cum laude from New York University and graduated with honors from the Rutgers School of Law where she was editor of the Race & the Law Review and earned the Kinoy-Stavis Fellowship and the Myron Harkavey prize.
Rachel Bloom is the Right to Vote Advocacy Coordinator in the American Civil Liberties Union’s Racial Justice Program, where her work focuses on felony disenfranchisement. Ms. Bloom works with ACLU affiliates throughout the country, as well as with national partners, to raise awareness about this issue and promote the fundamental right to vote. Ms. Bloom received her undergraduate degree in History from Barnard College and a Masters degree in Social Policy and Planning from the London School of Economics.