Restoring the Right to Vote

May 11, 2009

Despite a history of expanding the franchise, there remains one significant blanket barrier to the franchise. 5.3 million American citizens are not allowed to vote because of a felony conviction. As many as 4 million of these people live in our communities, but are still denied the right to vote because of a prior conviction.

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Introduction

The right to vote forms the core of American democracy. Our history is marked by successful struggles to expand the franchise, to include those previously barred from the electorate because of race, class, or gender. As a result our democracy is richer, more diverse, and more representative of the people than ever before. There remains, however, one significant blanket barrier to the franchise. 5.3 million American citizens are not allowed to vote because of a felony conviction. As many as 4 million of these people live, work and raise families in our communities, but because of a conviction in their past they are still denied the right to vote.

Felony disenfranchisement serves no legitimate purpose. More disconcerting, these laws are rooted in the Jim Crow era and were designed to lock freed slaves out of the voting process. It is time to remove this last barrier to the franchise.

The Brennan Center for Justice at NYU School of Law proposes automatic post-incarceration voting rights restoration one in each of the 35 states that still disenfranchise people who are no longer in prison [click here to see a map of disenfranchisement laws, published Feb. 25, 2008].

Under this system, citizens released from prison would be immediately eligible to vote while on probation and parole, as are those who are sentenced to probation without serving any time in prison. These citizens would be permitted to register in precisely the same way as other eligible citizens, without submission of special paperwork.

Specifically, the Brennan Center proposes that all vote restoration policies: 

  • Automatically restore voting rights upon release from prison. Voting rights should not be contingent upon payment of fees, fines, restitution, or other legal financial obligations.
  • Ensure that criminal defendants receive notice: (1) before conviction and sentencing to prison, that they will lose their voting rights while in prison; and (2) upon release from prison, that they are again eligible to register and vote. There remains one significant blanket barrier to the franchise. 5.3 million American citizens are not allowed to vote because of a felony conviction.
  • Assist eligible voters with registration. Make the Department of Corrections and Probation and Parole authorities responsible for assisting with voluntary voter registration. Ensure that all citizens are subject to the same application procedures.
  • Synchronize statewide voter registration databases. Names on the state’s computerized list of registered voters should be marked inactive upon a person’s imprisonment and then reactivated upon release from incarceration by electronic information-sharing between criminal justice agencies and elections agencies.
  • Educate eligible voters. The state’s chief election official should be responsible for educating other government agencies and the public about the new law.

These proposals are based on research, policy objectives, and historical analysis presented in this report. We conclude that post-incarceration voting rights restoration builds a stronger democracy, advances civil rights, ends second-class citizenship, aids law enforcement, empowers family and communities, and assures fair and accurate voter rolls.


Policy Recommendations

Laws establishing automatic post-incarceration voting rights restoration should not only change voter eligibility rules but also guarantee that the new rules are widely understood and consistently enforced. The Brennan Center proposes that such laws include the following elements to ensure that citizens can actually exercise the rights that are restored on paper.

  • Restoration: Automatically restore voting rights upon release from prison. Ensure that restoration is not contingent upon payment of fees, fines, restitution, or other legal financial obligations. Citizens released from prison may not be released from liability for payment, but the debt will not preclude exercise of the franchise.
  • Notice: Ensure that criminal defendants are informed: (1) before conviction and sentencing to prison, that they will lose their voting rights; and (2) upon release from prison, that they are again eligible to register and vote. • Voter Registration: Make the Department of Corrections and Probation and Parole authorities responsible for assisting with voluntary voter registration. Ensure that all citizens are subject to the same application procedures.
  • Statewide Voter Registration Database: Ensure that names on the state’s computerized list of registered voters are marked inactive upon a person’s imprisonment and then reactivated upon release from incarceration by electronic information- sharing between criminal justice agencies and elections agencies.
  • Education: Make the state’s chief election official responsible for educating other government agencies and the public about the new law.

States that currently have automatic post-incarceration voting rights restoration but do not include all of these provisions should amend their laws to add the missing elements. The Brennan Center for Justice has drafted a model bill incorporating all of these provisions, to which policymakers may look for guidance, and we would be happy to provide assistance in making any needed amendments. The bill is included as an Appendix to this proposal.


About the Author

Erika Wood joined New York Law School in fall 2011 to teach Legal Practice. Previously, she was the Deputy Director of the Democracy Program at the Brennan Center for Justice, where she designed and launched major reform campaigns around the country and provided legal counsel and strategic guidance to advocates, legislators, and policymakers nationwide. Professor Wood led the Brennan Center's Right to Vote Project, a national campaign to restore voting rights to people with criminal records, and worked on redistricting reform as as part of the Center's Government and Accountability Project. She has litigated complex civil rights cases and is a frequent speaker and commentator on voting rights, criminal justice reform and racial justice issues. Professor Wood previously taught as an adjunct professor in the Public Policy Advocacy Clinic at New York University School of Law and was an attorney with the Legal Action Center. Her work has been featured in numerous media outlets across the country, including The New York Times, Newsweek, The Wall Street Journal, USA Today, and National Public Radio. In 2009, Professor Wood was awarded the Eric. R. Neisser Public Interest Award by Rutgers Law School in recognition of her efforts to carry forward the law school’s mission of providing liberty and justice for all.