Nearly 5 million citizens—a hugely disproportionate share of them racial minorities—will 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 Americans—one in 43—have 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 probation—safe 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 law—not 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 men—13 percent of all black men—cannot 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-thirds—68 percent—of 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 enforcement—a major source of convictions—descended 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.
With blacks being incarcerated at a rate seven times higher than whites, felon disenfranchisement laws threaten a hemorrhaging of minority political power into the future.
Historians say the racial voting imbalances born of felon disenfranchisement are hardly a coincidence. It is well-known that white majorities in former slave states used criminal-law enforcement to retain power following emancipation. Sociologist Christopher Uggen has mapped today’s most restrictive felon voting bans—those disenfranchising not only during incarceration, but also during parole, probation, or even for life—to Southern states, which also hold the highest percentage of nonwhite prisoners.
In Alabama, Florida, Mississippi, and Virginia, for instance, approximately one in 25 people are disenfranchised. Florida and Texas have disenfranchised the most people—in each state more than 600,000. Together they have taken away the right to vote from over 1 million Americans. Alabama, Virginia, and California disenfranchise around a quarter of a million people each.
The only two states that allow even felony inmates to vote, Maine and Vermont, house relatively few minority prisoners. The prevalence of felon disenfranchisement in Northern and Western states, scholars say, illustrates that racism, or at least indifference to the fate of racial minorities, is misunderstood to be only a “Southern” problem.
A documented history of state discrimination tends to win the greatest sympathy from courts. The strongest felon disenfranchisement challenge today, then, is Johnson v. Bush, in which a class of some 600,000 former felons from Florida are fighting their lifetime ban from the polls. The Brennan Center, which will represent the plaintiffs before the 11th Circuit Court of Appeals later this month, points to racist legislative language it unearthed from the time of the voting ban’s creation. The 1868 lawmakers were determined to “prevent a negro legislature” and keep Florida from being “niggerized,” according to documents cited by the plaintiffs.
Lawyers for Governor Bush insist that the voting ban was later re-enacted without such racist intent. But plaintiff lawyer Jessie Allen points out that the Supreme Court’s own juris-prudence requires governments wishing to continue once discriminatory policies to demonstrate an entirely new and legitimate justification. Allen claims there is no reason good enough to overcome a clear history of racism, especially considering the contemporary data showing the disenfranchisement rate for blacks to be more than twice as high as for nonblacks.
A panel of the 11th Circuit had ruled for the Florida plaintiffs last year, reasoning that “although felon disenfranchisement does not apply only to African Americans, racially discriminatory policies can be deliberately overinclusive. Poll taxes, for example, surely disenfranchised some whites as well as blacks even though they were discriminatorily intended to impact blacks.” Jeb Bush’s lawyers appealed and were granted the upcoming rehearing en banc. Some observers wish that Johnson v. Bush, with its historical evidence and especially stark disenfranchisement numbers, were up for possible review by the Supreme Court, instead of the ones that are there now.
Yet the Voting Rights Act is intended to prevent not just intentional racism, but also seemingly neutral voting restrictions that result in racial discrimination.
Armed with data on racial disparities in law enforcement and voting loss, but without a historical record of intentional discrimination, felons in Washington state filed one of the challenges currently appealed to the Supreme Court. In the early stages of Farrakhan v. Locke, a federal trial court came to the ratherremarkable conclusion that the plaintiffs’ “evidence of discrimination in the criminal justice system, and the resulting disproportionate impact on minority voting power, is compelling.” Nevertheless, the court dismissed the case, deciding that proof of discrimination in law enforcement was not relevant to voting rights—even though the criminal justice system directly produces the pool of convicts summarily stripped of the right to vote.
The state, after all, was not disenfranchising only black felons—it was also disenfranchising white felons. How people were accused and convicted of felonies in the first place was simply a criminal justice question and not relevant to voting, the court concluded.
A three-judge panel of the Ninth Circuit Court of Appeals reversed the district court. Discrimination in law enforcement was part of the “totality of circumstances” that the Voting Rights Act covers in forbidding discriminatory voting practices, the panel concluded, law enforcement being a necessary “circumstance” to disenfranchising people based on felony convictions. Over the vigorous objection of a widely respected and conservative judge, the full circuit refused to reconsider the panel’s decision. The state then appealed that decision—from the most notoriously liberal and most overruled circuit in the nation—to the Supreme Court.
If the Supreme Court declines to review the case, then minority felons in all nine states within the Ninth Circuit will be able to use evidence of law enforcement discrimination to challenge felon vote denial. But minority advocates fear that the court—generally impatient with the Ninth Circuit, unfriendly to federal interference in state criminal matters, and faced with a split among the nation’s various courts—will not be able to resist. The conflicting case from New York, Muntaqim v. Coombe, then gives the court an alternative that is dreaded by the civil rights community.
Originally filed by an inmate without counsel, the New York case lacks the sort of factual record that civil rights lawyers prefer to build, one that would fully show the racial disparities in the state. For even in liberal New York, the figures are grim: Blacks and Latinos compose 80 percent of the state’s prison population, even though they are just 30 percent of the general population. The state-friendly decision questions whether Congress believed disenfranchisement laws to be a possible means of racial oppression when it was deciding how far into state affairs the protections of the federal Voting Rights Act could be extended. Not far enough to help the plaintiffs, the New York appeals court concluded.
If that analysis prevails on the national level, then the only recourse for the felon plaintiffs will be to lobby Congress to pass new legislation or to mobilize, state by state, for local law change. But not only are felons a far from popular bunch, they are not—since they cannot vote—a political constituency.
At its core, the contest over felon disenfranchisement is a debate about whether and how to reinforce minority voices in American democracy.
The problem is obvious just in the way that felon disenfranchisement actually works. Voters elected the legislators who enacted the felon voting bans that have robbed the very groups most affected by the bans of the opportunity to vote them down one day. It is a vicious cycle of shrinking political participation, with minority groups pushed to the outside.
If that shrinking circle of decision making makes felon voting bans seem less than legitimate, it is natural to wonder about the legitimacy of other policies—education, social services, policing—that heavily affect these disenfranchised minority groups and their run-ins with the criminal justice system.
Supporters of felon disenfranchisement cast convicts as calculating, immoral individuals whose race is beside the point. But the disenfranchised and their advocates are struggling to show that criminal matters are a creature of the political system, and that the minority status of the disenfranchised therefore matters a lot in the context of group politics. (An entire movement has even cropped up against the policy of counting felon bodies—for allocation of services and elected government seats—in the rural, white districts where prisons are typically located, instead of in the convicts’ urban hometowns. Critics claim that the approach adds insult to injury. Not only are minority communities robbed of voting power by felon disenfranchisement, but they are further robbed of their share in government attention by this counting method.)
This debate over minority political power is timely, since key provisions of the Voting Rights Act are set to expire in 2007 unless Congress reauthorizes them. Many disappointed voices say that the civil rights movement’s crowning document has failed to achieve the racial equality imagined back in 1965. The act has become just words on a page, they say, while the cultural commitment to breaking racial restrictions has dissipated.
Whether federal voting rights law can be resurrected to vindicate racial minorities is the key question in the felon disenfranchisement cases up for possible review by the Supreme Court. The outcome will depend on whether the court looks through the lens of minority political access or merely views the issue as a raceless criminal matter.
The court may avoid jumping into this democracy debate altogether this term. But everyone knows that it is not a question of if, but when.
One source for data and analysis about felon disenfranchisement is the Sentencing Project (sentencingproject.org), a nonpartisan criminal justice think tank. Information on legal activity and organizing can be found at Right to Vote (righttovote.org).
Research assistance: Ben Shestakofsky