It is widely known and well documented that Americans used the law to keep African-American voters out of the electoral process throughout the Deep South. In the late 1800s, Jim Crow laws spread as part of a backlash against 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. The uproar worked its intended purpose: large segments of the African-American population were effectively removed from the democratic process for sustained periods, in some cases for life.
Less known is that criminal disenfranchisement laws were part of the effort to maintain white control over access to the polls. Between 1865 and 1900, a period when African-American men were, theoretically, granted greater voting rights state-by-state, and ultimately enfranchised by the Fifteenth Amendment, 19 states passed criminal disenfranchisement laws. By 1900, 38 states deployed some type of criminal voting restriction. These laws disenfranchised convicted individuals long after their release from prison; many dictated that individuals released from prison could not vote unless they had been pardoned by the governor.
States also adapted their criminal codes to punish those offenses with which they believed freedmen were likely to be charged, including bigamy, vagrancy, petty theft and burglary. Together, targeted criminalization and felony disenfranchisement stripped African Americans of their voting rights – and suppressed African American’s political power for decades. The discriminatory impact of these laws and practices continues to this day. Nationwide, 8% of the African-American population, or 2,000,000 African Americans, are disenfranchised. Given current rates of incarceration, approximately one in three of the next generation of black men will be disenfranchised at some point during their lifetime.
But Jim Crow was not confined to the South. He made his home in northern states as well, perhaps most notably in New York. Starting in the 18th century, the history of New York’s election laws follows this national narrative. In fact, New York was the only state in the country to require blacks – and only blacks – to own real property in order to qualify to vote.
New York’s criminal disenfranchisement provisions, like those deployed in the South, were part of a concerted effort to exclude African Americans from participating in the political process. As African Americans gained freedom with the gradual end of slavery, New York’s voting qualifications – including criminal disenfranchisement laws – became increasingly more restrictive. A careful reading of New York’s constitutional history reveals that at the very time that the Fourteenth and Fifteenth Amendments forced the state to remove its nefarious property requirements for African-American voters, New York changed its law from allowing to requiring the disenfranchisement of those convicted of “infamous crimes.”
Today, New York’s criminal disenfranchisement law is nearly identical to the provision enacted 140 years ago. And the law continues to have its originally intended effect: the widespread disenfranchisement of African Americans and other ethnic minorities. More than 108,000 New Yorkers cannot vote because of a conviction in their past. Almost half of these disenfranchised citizens have completed their prison sentence and are living and working in the community. Nearly 80% of those who have lost their right to vote under New York’s law are African-American or Hispanic.