NY's Jim Crow laws--back in the day, and what remains today

Many people don’t realize that Jim Crow laws existed in the North, perhaps most notably in New York, and some continue to this day. Read more...and Join us on Tuesday, March 2, at 6:30 p.m. for a public conversation about our new study, Jim Crow in New York.

March 1, 2010

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).