By Michael Musto
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Nearly 5 million citizensa hugely disproportionate share of them racial minoritieswill not be allowed to vote in next month's presidential election. Laws in 48 states automatically stripped them of that right when they were convicted of a felony. Now, in a number of high-stakes lawsuits across the country, minorities are struggling to end the state felon disenfranchisement laws they say are slicing down the black and Latino vote. But first the courts will have to agree that this is a civil rights crisis worthy of federal attention, not just a jailhouse gripe.
Maddeningly, from the point of view of the plaintiffs, the key legal dispute is not whether the numbers of disenfranchised racial minorities are as vast as they claim they are. They are. Nor is the dispute whether voting is a legally recognized fundamental right, guaranteeing every citizen a say in government and thereby legitimating the very existence of democracy. It is. And certainly there is no dispute that U.S. history is replete with local voting procedures that, sometimes crudely and sometimes subtly, blocked minorities from accessing the ballot.
This is the sticking point, as summed up by one federal judge in Florida, where over 10 percent of black adults are disenfranchised for life: "It is not racial discrimination that deprives felons, black or white, of their right to vote but their own decision to commit an act for which they assume the risks of detection and punishment." State officials from Florida governor Jeb Bush to New York governor George Pataki insist that the voting bans are a criminal justice matter for the states to manage, not a minority political access problem warranting the most robust federal protections under civil rights laws.
If the states are right, then there is virtually no avenue for these disenfranchised plaintiffs to bring proof of racial inequities into federal courts, much less demand that the courts invalidate these laws. But, counters civil rights attorney Jessie Allen of the NYU Brennan Center for Justice, "The federal Voting Rights Act was created exactly in recognition that states would come up with a whole host of seemingly neutral but actually discriminatory measures."
With federal courts around the country differing on whether to hear out the disenfranchised, the U.S. Supreme Court is expected to announce in the coming weeks if it will take up the question this term and make the final call. At stake: not only millions of potential votes, but also longstanding questions about racial bias in criminal law enforcement and about the fullness of the nation's commitment to minority political participation.
The battle over felon disenfranchisement is shaping up to be the greatest contest over race and democracy since the end of the Jim Crow era.
Even putting race aside, the sheer scale of casualties to felon disenfranchisement suggests a democratic crisis. Some 4.7 million adult Americansone in 43have been politically erased by laws in 48 states that automatically strip the right to vote from people convicted of a felony. (Procedures for regaining the right exist, but the steps vary by state and are often little-known or extremely difficult to accomplish.) Equivalent to the population of Alabama, this group is the largest deliberately disenfranchised class in the nation.
About 3 million of them are not even behind bars, but mingle with society on parole or probationsafe to live next door but not to vote. Yet in some states the voting ban sticks not just beyond the cell, but for life, no matter how mild or long ago a person's crime.
Many social scientists doubt the value of felon disenfranchisement to begin with, arguing that it serves none of the legitimate purposes of criminal lawnot incapacitation or deterrence, and certainly not rehabilitation. But, civil rights advocates insist, even if disenfranchisement made sense in theory, its proven effect of amputating the minority vote makes it an unacceptable racial constraint in practice.
And the especially heavy impact of felon disenfranchisement on racial minorities is undeniable. Blacks make up 40 percent of the nation's disenfranchised, even though they are only 12 percent of the general population. At least 1.4 million black men13 percent of all black mencannot vote because of state felon disenfranchisement laws. These laws do not, of course, target particular races by name, but they nevertheless have a provably drastic effect on black and Latino voter eligibility.
The racial impact is extreme in some states, by latest estimates, with Alabama and Florida barring nearly a third of all black men from the polls for their entire lives. A quarter or more of all black men face lifetime voting bans in Iowa, Mississippi, Virginia, New Mexico, and Wyoming.
It is no wonder that racial minorities are most severely affected, since they represent an astonishing majority of those Americans sentenced to jail or prison. More than two-thirds68 percentof the nation's incarcerated are people of color. Black men in the U.S. face a 30 percent likelihood of being locked up at some point in their lives and Hispanic men 17 percent, while white men's chances are around 4 percent, according to the U.S. Department of Justice.
Some analysts attribute the race imbalances in felony convictions largely to politics. Drug enforcementa major source of convictionsdescended on minority communities beginning in the 1980s, when the infamous crack-versus-powder cocaine sentencing difference was born. The stiffer penalties for drugs associated with low-income, minority areas, along with police strategies prioritizing urban street sweeps over suburban investigations, have sent floods of blacks and Latinos to prison.
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