Unjust Civil Rights Stripping: American Felon Disenfranchisement

In Alabama, some felons, though solvent of all their debts to the state, return to free society as partial citizens, unable to participate in the democratic franchise. [1] Their crimes cover a wide severity of offenses, which fall under the vague category of “moral turpitude.” [2] Alabama allows felons to regain eligibility to vote if they fully complete the original terms of sentence, fees and fines included. [3] These vague definitions of qualifying crimes and fine print attempts at trapping weary felons in voting limitations prevail across the country—not just in the Cotton State—and are unusually and harmfully prohibitive to those attempting a healthy return to citizenship. Permanent felon disenfranchisement and abusive restorative policies for felons rejoining the fold are harmful, and an untenable infringement on American voting rights and democracy. Though opportunities exist for bringing about redress for millions of those without suffrage, especially involving applications of the Equal Protections clause of the 14th Amendment.

States wield the power of disenfranchisement from the U.S. Supreme Court’s decision in Richardson v. Ramirez (1974). In the case, three ex-felons petitioned the California Supreme Court in a class action suit, sustaining that their state-sanctioned disenfranchisement was unconstitutional. [4] Those three plaintiffs challenged a collection of California statutes and a provision of the state constitution that, in language similar to Alabama’s caveat, barred voting from those convicted of “infamous crimes.” [5] They argued that restricting ballot access to felons violated the Equal Protections Clause of the 14th Amendment:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [6]

Under plaintiff’s argument, California’s constitution and various statutes had unlawfully curtailed these rights. The California court ruled in their favor, but after appeal in the Supreme Court, the majority opinion held that the language in Section Two of the Fourteenth Amendment permitted the constitutional disenfranchisement of felons by accepting a criminal record as a factor of qualification for voting. [7] The specific language of Section Two is relevant to the Supreme Court’s ruling: voting practices are excepted from fundamental rights if those desiring suffrage committed “participation in rebellion, or other crimes.” [8]

Felon disenfranchisement has its origins rooted in the Fourteenth Amendment and challenges to its constitutionality frequently focus on the Equal Protections Clause. Taking the origins of disenfranchisement into account also casts light on the grave implications of its modern enforcement. Three years after the Civil War ended, the Fourteenth Amendment was ratified in 1868 as part of a body of new civil rights legislation aimed at reuniting a scarred nation and granting full rights to millions of freed slaves. [9] Reconstruction efforts aimed at expanding access to the ballot were immediately and fiercely challenged in southern states. Restrictive policies were instituted in the decades following the federal government's first major attempt at civil rights, including a 1901 plank in the Alabama constitution laying out crimes with definitions of “moral turpitude.” [10] Thus, felon disenfranchisement emerged as a sharp tool in opposition to Reconstruction, and manifested through the implementation of these and other voting restrictions. [11] Poll taxes, grandfather clauses, and literacy tests boomed in Southern legal codes designed to obstruct Black people’s access to the ballot. By the beginning of the Twentieth century, practically all southern states had gone so far as to fully restrict the political participation of every Black person and had stamped out their right to vote. [12]

The 1960s saw a shift to supportive civil rights legislation; specifically, the Voting Rights Act (VRA) of 1965 prohibited racial discrimination in voting practices and was an attempt at undergirding what had been the fleeting progress of the earliest parts of Reconstruction. [13] Those restricted by the racist codes of the Jim Crow era shared much of the same fate as those who suffer under felon disenfranchisement today. Discrepancies in sentencing and policing acutely affect the Black community, which is why one in every sixteen Black voters in the country is disenfranchised. Felon disenfranchisement emerged early as a practice influenced by race bias contemporary with other restrictions bent on combating voting liberalization enacted by post-Civil War constitutional reform. [14] That the ancestral code of today’s disenfranchisement laws arose in tandem with the steep racism of Jim Crow is an important reflection on the legal history of the issue and recent developments.

The ruling in Richardson was guided by a dispute over the 14th Amendment: whether or not equal protections should extend to those disenfranchised by felony conviction as they might to those disenfranchised less controversially.  Specifically, it relied on the assumption that the Equal Protections Clause is inapplicable to voting rights cases, meaning that felon disenfranchisement is not an instance of discrimination. [15] Challenges to restrictive policies today rest on relatively fresh interpretations of the Fourteenth Amendment. [16] Indeed, arguments have emerged that the court’s interpretation of the clause in Richardson is inconsistent with other decisions, which found that conceptions of equality vary with evolving social norms rather than the standards of a certain era. [17] In other words, intervening rulings following Richardson on citizenship and voting rights seem to allow for the latitude necessary to account for felon disenfranchisement today as amenable to rectification by the 14th Amendment. [18]

The fervent need to counter racial discrimination and other civil infringements—as they relate to felon disenfranchisement—offer more oppurtunities to strengthen 14th Amendment application. Selective enforcement or race-based discrimination were implicit allowances made in the language of the Richardson ruling to allow for Equal Protections challenges. [19] In Allen v. Ellisor (1979), the Fourth Circuit Court of Appeals ruled against South Carolina’s felon disenfranchisement, stating that the Richardson case had not trapped constitutionality in racially biased laws and that courts could invalidate felon disenfranchisement regulations if accompanied by racial discrimination. [20] The court found that South Carolina’s laws were so influenced by discrimination on certain offenses that enforcing disenfranchisement on those standards was a violation of the Equal Protections Clause. [21]

Challenges to felon disenfranchisement on grounds of racial discrimination and 14th Amendment breaches are informed by this history. In 1985, the Supreme Court in Hunter v. Underwood (1985) decided that Section 182 of Alabama’s constitution was purposefully designed to disenfranchise Black people through a regime of misdemeanor classifications. The court found that the state convention, when drafting Alabama’s constitution, framed Section 182 discriminatorily and in violation of the 14th Amendment. [22] Offenses qualifying for ballot restrictions were culled so that each represented a disproportionate population of Black people as offenders, while distinctly leaving out much more serious crimes like manslaughter. [23] Yet, despite the decision in Hunter, “moral turpitude” still maps out crimes worthy of disenfranchisement in Alabama’s constitutional language—just as issues of racial discrimination remain.

Furthermore, in Farrakhan v. Gregoire (2000), petitioners challenged that a Washington State law restricting voting abilities from those in prison, on parole, or on probation was unjust. [24] In this case, the ultimate ruling in the Ninth Circuit found that felon disenfranchisement in Washington State was not in violation of the VRA because of limited evidence purporting intentional racial disrcimination in the state’s justice system. [25] Farakhan passed through several rounds of judgment and review before the Ninth’s final adjudication, most notably an earlier ruling which sustained that Washington’s felon disenfranchisement laws did indeed violate the VRA. [26] That ruling, though penultimate and inconclusive, was the first in the country to establish felon disenfranchisement as a VRA breach and the first to establish that connection by a racial throughline linking acting discrimination in a state’s criminal justice system to a resulting policy. [27] A final en banc decision by the Ninth Circuit ruled that no discriminatory violation was in effect because such laws preceded the Jim Crow era and had been bypassed amid civil rights reform during the 1960s. At the time, though the courts had given a glimpse of headway in an intervening ruling, ultimately Washington’s felon disenfranchisement laws prevailed. 

There are eleven states with policies that restrict ex-felons even after incarceration and the completion of parole, as well as a number of others with awkwardly tailored voting regulations. Out of the most prohibitive eleven, some make it such that the prospect of returning to life with full voting capability is impossible. [28] Furthermore, beyond these most restrictive states, others have restorative regimes that feign civil health. Many states allow eventual ballot access but procrastinate on justice and allow disparities to continue or exacerbate issues in representation by offering in-name-only re-enfranchisement.

For instance, in 2018, Florida enacted Amendment Four,  returning 1.4 million convicted felons to the ballot barring the most severe of offenses. [29] A year later, Governor Ron DeSantis signed Senate Bill 7066 into law, disallowing felons from voting unless they had paid off all legal fees mandated by a court according to their sentencing, expanding the terms from mere imprisonment. [30] Of those 774,000 people proscribed, Florida’s Black population suffers the most disproportionately. [31] Moreover, those affected are often especially compromised by financial insecurity and unable to pay off their legal debts, trapped in a system of paralysis. This immobility of equality, dubbed Florida’s “pay-to-vote” system, was ruled partially unconstitutional in 2020, but the decision was vacated and countermanded later that year by the Eleventh Circuit in an en banc ruling. [32] As a result, Florida’s system persists today. [33]

Not only do felony restrictions infringe on the right to vote itself, but they also undermine the political system more broadly. The presidential election of 2000 was decided by a mere 537 Floridians: today, those disenfranchised in the state outnumber the difference in 2000 by over a factor of one thousand. [34] The implication of granting millions of Americans with certain felony convictions the suffrage they deserve goes far beyond the individual right to vote. As a voting block, ex-felons have the potential to right the political neglect that their communities have suffered. Additionally, opening up the suffrage to home-coming citizens evens the political landscape and allows the representation of communities most affected by criminal justice policies. If our system is truly aiming to remediate crime, then the state owes it to ex-felons to grant them full returning rights.

Courts must challenge post-carceral restrictions like fine payments or other incidental aspects of sentencing as violations of equal protection, as for those unable to pay, they evidently are.  Furthermore, reformulating the language in many state constitutions to erase phrasing rooted in America’s deeply racist past is another step forward in ending racialized felon disenfranchisement. While so many of these challenges rest on the efforts of an active and vigilant legal confrontation of existing laws, it is ultimately up to voters and legislators to promote policies that facilitate a more equitable voting environment.

No matter the crime, a felon should be returned to the ballot upon the completion of their sentence, without the barriers of having to satisfy obscure financial requirements or some requisite of probation. Ultimately, this country cannot claim to have free and fair voting rights until certain state governments institute an equitable path to full citizenship after incarceration.

edited by Alison Qi

Sources:

[1] Mike Cason, “Federal Judge Upholds Alabama Law on Felon Voting Disenfranchisement,” Advance Local (December 4, 2020), https://www.al.com/news/2020/12/federal-judge-upholds-alabama-law-on-felon-voting-disenfranchisement.html. 

[2] Id.

[3] Id.

[4] Richardson v. Ramirez, 418 U.S. 24, 94 S. Ct. 2655, 41 L. Ed. 2d 551 (1974).

[5] Id.

[6]  LII / Legal Information Institute. 14th Amendment, Legal Information Institute, online at https://www.law.cornell.edu/constitution/amendmentxiv (visited April 8, 2022). 

[7] Richardson v. Ramirez

[8] Id.

[9] “History of Law: The Fourteenth Amendment,” Tulane University Law School (July 9, 2017), https://online.law.tulane.edu/articles/history-of-law-the-fourteenth-amendment. 

[10] Mark Joseph Stern, “Alabama’s Failure of Moral Turpitude,” Slate (October 6, 2016), https://slate.com/news-and-politics/2016/10/alabamas-grossly-unconstitutional-felony-disenfranchisement-scheme.html. 

[11]  “Felony Disenfranchisement Explained,” Democracy Docket, https://www.democracydocket.com/explainers/felony-disenfranchisement-explained/. 

[12] The Conversation, “Exploiting Black Labor After the Abolition of Slavery,” US News (February 7, 2017), https://www.usnews.com/news/national-news/articles/2017-02-07/exploiting-black-labor-after-the-abolition-of-slavery. 

[13] “Voting Rights Act of 1965,” History.com, . https://www.history.com/topics/black-history/voting-rights-act. 

[14]  “Felony Disenfranchisement Explained.”

[15] Jean Chung and Kevin Muhitch, “Voting Rights in the Era of Mass Incarceration: A Primer,” The Sentencing Project (2021). 

[16] Id.

[17] Id.

[18] Id.

[19] William Walton Liles, “Challenges To Felony Disenfranchisement Laws: Past, Present, and Future,” 58 Alabama Law Review 615, 620 (2007), https://www.prisonpolicy.org/scans/sp/fd_research_liles.pdf

[20]  Id.

[21] Allen v. Ellisor, 477 F. Supp. 321 (D.S.C. 1979).

[22] Hunter v. Underwood, 471 U.S. 222 (1985).

[23] Id. 

[24] “Farrakhan v. Gregoire,” Brennan Center for Justice (January 5, 2010), https://www.brennancenter.org/our-work/court-cases/farrakhan-v-gregoire.

[25] Id.

[26] Id.

[27] Id.

[28] “Felony Disenfranchisement Explained.” 

[29] “Voting Rights Restoration Efforts in Florida,” Brennan Center for Justice (May 31, 2019),  https://www.brennancenter.org/our-work/research-reports/voting-rights-restoration-efforts-florida

[30] Id.

[31] Id.

[32] Id.

[33] Id

[34] Ron Elving, “The Florida Recount Of 2000: A Nightmare That Goes On Haunting,” NPR (November 12, 2018),https://www.npr.org/2018/11/12/666812854/the-florida-recount-of-2000-a-nightmare-that-goes-on-haunting.