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Disenfranchisement Laws, Race and the U.S. Presidential Election

5.8 million Americans cannot vote because of felony conviction. One out of every thirteen African Americans has lost their voting rights due to felony disenfranchisement laws. Compare this with one in every forty-five non-black voters and it is clear that something is amiss with the US electoral process. The 2000 presidential elections gave Republican nominee, George W. Bush, a narrow win over the Democratic, nominee, Al Gore, where the margin of Bush’s victory in this state were fewer than 1,000 votes. It is widely viewed that had disenfranchisement laws not been in vigour in Florida which prohibited as many as 620,000 citizens from voting, history would have decided a different US president.

The reality is that felony disenfranchisement is practices in all but two states, Maine and Vermont, where former and current prisoners are free to vote in elections. The rest of the forty-eight states bars prisoners from voting while in prison (15), during prison and parole (4), during prison, parole and probation (18), and those who anywhere from in prison to probation and post-sentence (12), this last group making up approximately 45 percent of the entire disenfranchised population. The Sentencing Project maintains that of those individuals disenfranchised currently in prison or jail, this number actually represents a minority of the total disenfranchised population. Of the disenfranchised voters, approximately 75 percent live in their communities, “under probation or parole supervision or having completed their sentence.” Of those states which restrict voting rights after the completion of sentence, 2.6 million people are disenfranchised.

Legally speaking disenfranchisement has been challenged in courts over the past century with Richardson v. Ramirez 418 U.S. 24 (1974) being a key case on this matter where three men from California who had served time for felony convictions filed a class action lawsuit for their right to vote. The legal argument in this case was principally that the state’s felony disenfranchisement policies denied them the right to equal protection of the laws under the U.S. Constitution (Section 1 of the Fourteenth Amendment). According to this part of the U.S. Constitution, a state cannot restrict voting rights unless it shows a compelling state interest. Notwithstanding, the U.S. Supreme Court upheld California’s felony disenfranchisement policies as constitutional, affirming that a state does not have to prove that its felony disenfranchisement laws serve “a compelling state interest,” essentially allowing for the denial of voting rights “for participation in rebellion, or other crime.” In the majority opinion, Justice Rehnquist found that Section 2 which was arguably intended to protect the voting rights of freed slaves by sanctioning states that disenfranchised them, exempts from this sanction the disenfranchisement based on a felony conviction. In this way, the Equal Protection Clause could not have been intended to prohibit such disenfranchisement policies.

The problem of felony disenfranchisement has come under political scrutiny in recent weeks when a federal judge in Brooklyn, Frederic Block of Federal District Court, issued a groundbreaking opinion issued on Wednesday that rallies courts to contemplate how felony convictions affect people’s lives. So instead of sentencing Chevelle Nesbeth, a 20-year-old Black woman arrested last year with 600 grams of cocaine in her luggage at JFK International Airport to prison, Block voiced his concern that the collateral consequences she would face as a felon would be punishment enough and he sentenced her to probation. Attesting that such consequences serve “no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences,” Block underscored that there were almost 50,000 federal and state statutes and regulations that imposed penalties on felons. These penalties range from denial of government benefits, ineligibility for public housing, revocation or suspension of driver’s licenses and voter disenfranchisement and can have devastating effects. Bloch’s 42 page opinion on this matter made a most salient appeal to reason adding that felonious convictions for drug offenders may be “particularly disruptive to an ex-convict’s efforts at rehabilitation and reintegration into society.”

The reality is that upon release ex-convicts face extra-judiciary punishment in civil society that can continue throughout their life. For instance, many states have statutory bans which prevent those with certain convictions from working in industries like child care, home health care and nursing—three sectors that employ women of colour at disproportionate rates. As a means to curb such discrimination, in April 2012 the EEOC published an “Enforcement Guidance” requiring companies to establish procedures to show that they are not using criminal records to discriminate by race or national origin. Yet, empirical evidence demonstrates that wage disparity of ex-convicts is harsh and impedes their ability to integrate into society: “There is strong evidence that incarceration reduces the wages of ex-in- mates by 10 to 20 percent. More relevant for the idea of imprisonment as a turning point, incarceration was also found to reduce the rate of wage growth by about 30 percent” (Western, 541). And black ex-convicts encounter wage disparities at an extremely high rate growing at a 21 percent slower rate than that of white ex-convicts. When prison time ends, a second longterm punishment is thus extended throughout life for convicts and voter disenfranchisement is just one of the many ways of creating a specifically racialised marginalisation of those persons who cannot cannot participate in civil society. Former prisoners’ lives are mired by criminal records checks, barred entry to many professions, suffer life-long physical and mental illness because of their marginalisation, and even face difficulty in survival.

The English colonists brought the common law practice of “civil death” to North America. This was a set of criminal penalties which included the revocation of voting rights for certain offences related to voting or considered “egregious violations of the moral code.” After the American Revolution, states began codifying disenfranchisement provisions and expanding the penalty to all felony offences. It is worth noting that the link between wealth and voting is not new as some scholars believe that the rise in disenfranchisement laws in the 1780s was a direct response to the elimination of the requirement that a citizen hold property to vote. As such it is commonly viewed that felony disenfranchisement served an alternative means to reduce the voting power of the lower classes, specifically to the benefit of the wealthy.   After the Civil War felony disenfranchisement policies were enacted and by 1869 twenty-nine states had such laws. And by the post-Reconstruction era, many Southern states amended their disenfranchisement laws specifically to bar black male voters, targeting those offences believed to be committed most frequently by the black population. This is eerily similar to how the powder versus crack cocaine sentencing under the federal Anti-Drug Abuse Act of 1986 functioned to punish black offenders more severely than white offenders (100:1) until this disparity was reduced by the Fair Sentencing Act of 2010 (18:1) which still manifests a striking disproportion.

Felony disenfranchisement in many southern states focused on “furtive offenses” which included burglary, theft, arson and wife beating but not for robbery or murder. So when the 1890 Constitutional Convention in Mississippi called for disenfranchisement for furtive offenses, it was later revealed in Mississippi Supreme Court decision several years later (Ratliff v. Beale, 1896), that the fact that blacks engaged in crime and were “given rather to furtive offenses than to the robust crimes of the whites” was the paradigmatic basis for the convention which attempted to bar blacks from voting. This was in addition to literacy tests, poll tax requirement and residency rules. So what was set into motion by these laws resulted in the disenfranchisement provision which resulted in a bizarre policy that would disenfranchise a man convicted of beating his wife, but not for killing her. Such policies would endure for over a century. The laws in place today continue this racist legacy.

Also of interest are the links being made between felony disenfranchisement laws and the right to hold public office, an issue taken up by Andre Steinacker who writes: “[I]f the policy considerations behind voter disenfranchisement laws are legitimate, the application of those considerations would be even more important in the case of candidate disenfranchisement. As evidenced by state candidate disenfranchisement laws, many states have made the decision that moral character is important in elected officials.” There are several glaring ironies here. First, that the law requires a higher moral character for voters than for their politicians. And secondly, that had George W. Bush been arrested and convicted for cocaine possession after 2010 and not in 1972, he would have never been able to have run for office without “judicial release.”

What this means is that still we have a two tier system regarding felony disenfranchisement and a system that still penalises African Americans.

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Julian Vigo is a scholar, film-maker and human rights consultant. Her latest book is Earthquake in Haiti: The Pornography of Poverty and the Politics of Development (2015). She can be reached at: julian.vigo@gmail.com

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