Felony disenfranchisement is the exclusion from voting of people otherwise eligible to vote (known as disfranchisement) due to conviction of a criminal offense, usually restricted to the more serious class of crimes: felonies. Jurisdictions vary as to whether they make such disfranchisement permanent, or restore suffrage after a person has served a sentence, or completed parole or probation.[1]Felony disenfranchisement is one among the collateral consequences of criminal conviction and the loss of rights due to conviction for criminal offense.[2]
Proponents have argued that persons who commit felonies have 'broken' the social contract, and have thereby given up their right to participate in a civil society. Some argue that felons have shown poor judgment, and that they should therefore not have a voice in the political decision-making process.[3]Opponents have argued that such disfranchisement restricts and conflicts with principles of universal suffrage.[4] It can affect civic and communal participation in general.[1]Opponents argue that felony disenfranchisement can create dangerous political incentives to skew criminal law in favor of disproportionately targeting groups who are political opponents of those who hold power.
History
In the United StatesEdit
Unrestricted
Ends after release
Ends after parole
Ends after probation
Circumstantial
Individual petitions required
BackgroundEdit
The United States is among the most punitive nations in the world when it comes to denying the vote to those who have been convicted of a felony offense.[6][7]
In the U.S., the Constitution implicitly permits the states to adopt rules about disenfranchisement "for participation in rebellion, or other crime", by the Fourteenth Amendment, section 2. It is up to the states to decide which crimes could be grounds for disenfranchisement, and they are not formally bound to restrict this to felonies; however, in most cases, they do.[citation needed] Felons are allowed to vote in most U.S. states. Between 1996 and 2008 twenty-eight states changed their laws on felon voting rights, mostly to restore rights or to simplify the process of restoration. Since 2008 state laws have continued to shift, both curtailing and restoring voter rights, sometimes over short periods of time within the same state.[8]
Current practicesEdit
As of 2008 over 5.3 million people in the United States were denied the right to vote due to felony disenfranchisement.[9] In the national elections in 2012, the various state felony disenfranchisement laws together blocked an estimated 5.85 million felons from voting, up from 1.2 million in 1976. This comprised 2.5% of the potential voters in general. The state with the highest number of disenfranchised voters was Florida, with 1.5 million disenfranchised.[6]
Reform effortsEdit
Felony disenfranchisement was a topic of debate during the 2012 Republican presidential primary. Rick Santorum argued for the restoration of voting rights for convicted felons who had completed sentences and parole/probation.[10]Santorum's position was attacked and distorted by Mitt Romney, who alleged that Santorum supported voting rights for felons while incarcerated rather than Santorum's stated position of restoring voting rights only after the completion of sentence, probation and parole.[10][11] Former President Barack Obama supports voting rights for ex-offenders.[12]
In the years 1997 to 2008, there was a trend to lift the disenfranchisement restrictions, or simplify the procedures for applying for the restoration of civil rights for people who had fulfilled their punishments for felonies. As a result, in 2008 more than a half million people had the right to vote, who would have been disenfranchised under the older rules.[13]Since then, more severe disenfranchisement rules have been passed in several states.
State reformsEdit
In 2007, Florida's Republican Governor Charlie Crist pushed to make it easier for most convicted felons to regain their voting rights reasonably quickly after serving their sentences and probation terms.[14] In March 2011, however, Republican Governor Rick Scott reversed the 2007 reforms. Felons may not apply to the court for restoration of voting rights until seven years after completion of sentence, probation and parole.[15]
In Iowa in July 2005, Democratic Governor Tom Vilsack issued an executive order restoring the right to vote for all persons who had completed supervision.[13] On October 31, 2005, Iowa's Supreme Court upheld mass re-enfranchisement of convicted felons. But, on his inauguration day, January 14, 2011, Republican Governor Terry Branstad reversed Vilsack's executive order, disenfranchising thousands of people.[16]
The Virginia legislature in 2017 debated relaxation of the state's policy that restoration of voting rights requires an individual act by the governor.[17]
Nine other states disenfranchise felons for various lengths of time following their conviction. Except for Maine and Vermont, and as of September 2016, California, every state prohibits felons from voting while in prison.[13]
ConstitutionalityEdit
Unlike most laws that burden the right of citizens to vote based on some form of social status, felony disenfranchisement laws have been held to be constitutional. In Richardson v. Ramirez (1974), the United States Supreme Court upheld the constitutionality of felon disenfranchisement statutes, finding that the practice did not deny equal protection to disenfranchised voters. The Court looked to Section 2 of the Fourteenth Amendment to the United States Constitution, which proclaims that States which deny the vote to male citizens, except by "participation in rebellion, or other crime," will suffer a reduction in representation. Based on this language, the Court found that this amounted to an "affirmative sanction" of the practice of felon disenfranchisement, and the 14th Amendment could not prohibit in one section that which is expressly authorized in another.
But, critics of the practice argue that Section 2 of the 14th Amendment allows, but does not represent an endorsement of, felony disenfranchisement statutes as constitutional in light of the equal protection clause and is limited only to the issue of reduced representation. The Court ruled in Hunter v. Underwood 471 U.S. 222, 232 (1985) that a state's crime disenfranchisement provision will violate Equal Protection if it can be demonstrated that the provision, as enacted, had "both [an] impermissible racial motivation and racially discriminatory impact." (The law in question also disenfranchised people convicted of vagrancy, adultery, and any misdemeanor "involving moral turpitude"; the test case involved two individuals who faced disenfranchisement for presenting invalid checks, which the state authorities had found to be morally turpid behavior.) A felony disenfranchisement law, which on its face is indiscriminate in nature, cannot be invalidated by the Supreme Court unless its enforcement is proven to racially discriminate and to have been enacted with racially discriminatory animus.[citation needed]
ClassificationsEdit
Restoration of voting rights for people who are ex-offenders varies across the United States. Primary classification of voting rights include:
UnrestrictedEdit
Maine[18] and Vermont[19] are the only states with unrestricted voting rights for people who are felons. Both states allow the person to vote during incarceration, via absentee ballotand after terms of conviction end.
Ends after releaseEdit
In fourteen states and the District of Columbia, disenfranchisement ends after incarceration is complete: District of Columbia,[20] Hawaii,[21] Illinois,[22] Indiana,[23]Maryland,[24] Massachusetts,[25] Michigan,[26]Montana,[27] New Hampshire,[28] North Dakota,[29] Ohio,[30] Oregon,[31]Pennsylvania,[32] Rhode Island,[33] and Utah.[34]
In February 2016 the Maryland General Assembly restored the right to vote for more than 40,000 released felons, overriding a veto by Governor Larry Hogan. Maryland’s Senate approved the bill on a narrow 29-18 vote, while the state House of Delegates voted 85-56 in favor of it on January 20. Convicted felons under parole or probation had their right to vote restored. The law is to go into effect in late March, one month before the state's April 26 primaries.[24]
Ends after paroleEdit
In four states, disenfranchisement ends after incarceration and parole (if any) is complete: California,[35] Colorado,[36] Connecticut,[37] and New York.[38]
Ends after probationEdit
Nineteen states require not only that incarceration/parole if any be complete but also that any probation sentence (which is often an alternative to incarceration) is complete: Alaska,[39] Arkansas,[40] Georgia,[41]Idaho,[42] Kansas,[43] Louisiana,[44]Minnesota,[45] Missouri,[46] Nebraska(Completion of probation + 2 years; treason convicts permanently lose the right to vote),[47] New Jersey,[48] New Mexico,[49] North Carolina,[50] Oklahoma,[51] South Carolina,[52]South Dakota,[53] Texas,[54] Washington,[55]West Virginia (the prosecutor can request the court to revoke voting rights if financial obligations are unmet), and Wisconsin.[56]
CircumstantialEdit
Seven states have laws that relate disenfranchisement to the detail of the crime. These laws restore voting rights to some offenders on the completion of incarceration, parole, and probation. Other offenders must make an individual petition that could be denied.
Four states require individual petition to the court for restoration of voting after all offenses.
Proponents have argued that persons who commit felonies have 'broken' the social contract, and have thereby given up their right to participate in a civil society. Some argue that felons have shown poor judgment, and that they should therefore not have a voice in the political decision-making process.[3]Opponents have argued that such disfranchisement restricts and conflicts with principles of universal suffrage.[4] It can affect civic and communal participation in general.[1]Opponents argue that felony disenfranchisement can create dangerous political incentives to skew criminal law in favor of disproportionately targeting groups who are political opponents of those who hold power.
History
In the United StatesEdit
Unrestricted
Ends after release
Ends after parole
Ends after probation
Circumstantial
Individual petitions required
BackgroundEdit
The United States is among the most punitive nations in the world when it comes to denying the vote to those who have been convicted of a felony offense.[6][7]
In the U.S., the Constitution implicitly permits the states to adopt rules about disenfranchisement "for participation in rebellion, or other crime", by the Fourteenth Amendment, section 2. It is up to the states to decide which crimes could be grounds for disenfranchisement, and they are not formally bound to restrict this to felonies; however, in most cases, they do.[citation needed] Felons are allowed to vote in most U.S. states. Between 1996 and 2008 twenty-eight states changed their laws on felon voting rights, mostly to restore rights or to simplify the process of restoration. Since 2008 state laws have continued to shift, both curtailing and restoring voter rights, sometimes over short periods of time within the same state.[8]
Current practicesEdit
As of 2008 over 5.3 million people in the United States were denied the right to vote due to felony disenfranchisement.[9] In the national elections in 2012, the various state felony disenfranchisement laws together blocked an estimated 5.85 million felons from voting, up from 1.2 million in 1976. This comprised 2.5% of the potential voters in general. The state with the highest number of disenfranchised voters was Florida, with 1.5 million disenfranchised.[6]
Reform effortsEdit
Felony disenfranchisement was a topic of debate during the 2012 Republican presidential primary. Rick Santorum argued for the restoration of voting rights for convicted felons who had completed sentences and parole/probation.[10]Santorum's position was attacked and distorted by Mitt Romney, who alleged that Santorum supported voting rights for felons while incarcerated rather than Santorum's stated position of restoring voting rights only after the completion of sentence, probation and parole.[10][11] Former President Barack Obama supports voting rights for ex-offenders.[12]
In the years 1997 to 2008, there was a trend to lift the disenfranchisement restrictions, or simplify the procedures for applying for the restoration of civil rights for people who had fulfilled their punishments for felonies. As a result, in 2008 more than a half million people had the right to vote, who would have been disenfranchised under the older rules.[13]Since then, more severe disenfranchisement rules have been passed in several states.
State reformsEdit
In 2007, Florida's Republican Governor Charlie Crist pushed to make it easier for most convicted felons to regain their voting rights reasonably quickly after serving their sentences and probation terms.[14] In March 2011, however, Republican Governor Rick Scott reversed the 2007 reforms. Felons may not apply to the court for restoration of voting rights until seven years after completion of sentence, probation and parole.[15]
In Iowa in July 2005, Democratic Governor Tom Vilsack issued an executive order restoring the right to vote for all persons who had completed supervision.[13] On October 31, 2005, Iowa's Supreme Court upheld mass re-enfranchisement of convicted felons. But, on his inauguration day, January 14, 2011, Republican Governor Terry Branstad reversed Vilsack's executive order, disenfranchising thousands of people.[16]
The Virginia legislature in 2017 debated relaxation of the state's policy that restoration of voting rights requires an individual act by the governor.[17]
Nine other states disenfranchise felons for various lengths of time following their conviction. Except for Maine and Vermont, and as of September 2016, California, every state prohibits felons from voting while in prison.[13]
ConstitutionalityEdit
Unlike most laws that burden the right of citizens to vote based on some form of social status, felony disenfranchisement laws have been held to be constitutional. In Richardson v. Ramirez (1974), the United States Supreme Court upheld the constitutionality of felon disenfranchisement statutes, finding that the practice did not deny equal protection to disenfranchised voters. The Court looked to Section 2 of the Fourteenth Amendment to the United States Constitution, which proclaims that States which deny the vote to male citizens, except by "participation in rebellion, or other crime," will suffer a reduction in representation. Based on this language, the Court found that this amounted to an "affirmative sanction" of the practice of felon disenfranchisement, and the 14th Amendment could not prohibit in one section that which is expressly authorized in another.
But, critics of the practice argue that Section 2 of the 14th Amendment allows, but does not represent an endorsement of, felony disenfranchisement statutes as constitutional in light of the equal protection clause and is limited only to the issue of reduced representation. The Court ruled in Hunter v. Underwood 471 U.S. 222, 232 (1985) that a state's crime disenfranchisement provision will violate Equal Protection if it can be demonstrated that the provision, as enacted, had "both [an] impermissible racial motivation and racially discriminatory impact." (The law in question also disenfranchised people convicted of vagrancy, adultery, and any misdemeanor "involving moral turpitude"; the test case involved two individuals who faced disenfranchisement for presenting invalid checks, which the state authorities had found to be morally turpid behavior.) A felony disenfranchisement law, which on its face is indiscriminate in nature, cannot be invalidated by the Supreme Court unless its enforcement is proven to racially discriminate and to have been enacted with racially discriminatory animus.[citation needed]
ClassificationsEdit
Restoration of voting rights for people who are ex-offenders varies across the United States. Primary classification of voting rights include:
UnrestrictedEdit
Maine[18] and Vermont[19] are the only states with unrestricted voting rights for people who are felons. Both states allow the person to vote during incarceration, via absentee ballotand after terms of conviction end.
Ends after releaseEdit
In fourteen states and the District of Columbia, disenfranchisement ends after incarceration is complete: District of Columbia,[20] Hawaii,[21] Illinois,[22] Indiana,[23]Maryland,[24] Massachusetts,[25] Michigan,[26]Montana,[27] New Hampshire,[28] North Dakota,[29] Ohio,[30] Oregon,[31]Pennsylvania,[32] Rhode Island,[33] and Utah.[34]
In February 2016 the Maryland General Assembly restored the right to vote for more than 40,000 released felons, overriding a veto by Governor Larry Hogan. Maryland’s Senate approved the bill on a narrow 29-18 vote, while the state House of Delegates voted 85-56 in favor of it on January 20. Convicted felons under parole or probation had their right to vote restored. The law is to go into effect in late March, one month before the state's April 26 primaries.[24]
Ends after paroleEdit
In four states, disenfranchisement ends after incarceration and parole (if any) is complete: California,[35] Colorado,[36] Connecticut,[37] and New York.[38]
Ends after probationEdit
Nineteen states require not only that incarceration/parole if any be complete but also that any probation sentence (which is often an alternative to incarceration) is complete: Alaska,[39] Arkansas,[40] Georgia,[41]Idaho,[42] Kansas,[43] Louisiana,[44]Minnesota,[45] Missouri,[46] Nebraska(Completion of probation + 2 years; treason convicts permanently lose the right to vote),[47] New Jersey,[48] New Mexico,[49] North Carolina,[50] Oklahoma,[51] South Carolina,[52]South Dakota,[53] Texas,[54] Washington,[55]West Virginia (the prosecutor can request the court to revoke voting rights if financial obligations are unmet), and Wisconsin.[56]
CircumstantialEdit
Seven states have laws that relate disenfranchisement to the detail of the crime. These laws restore voting rights to some offenders on the completion of incarceration, parole, and probation. Other offenders must make an individual petition that could be denied.
- Alabama – A person convicted of a felony loses the ability to vote if the felony involves moral turpitude. Prior to 2017, the state Attorney General and courts have decided this for individual crimes; however, in 2017, moral turpitude was defined by House Bill 282 of 2017, signed into law by Kay Ivey on May 24, to constitute 47 specific offenses.[57] If a convicted person loses the ability to vote based on having committed a defined act of moral turpitude, he can petition to have it restored by a pardon or by a certificate of eligibility; if the loss of elective franchise was based on a crime not under moral turpitude, eligibility to vote is automatically restored once all sentence conditions have been satisifed.[58][59][60][61]Prior to 2017, a certificate of eligibility could be issued to a person convicted of a number of crimes having to do with sexual assault or abuse, including sodomy; today, only impeachment and treason remain ineligible for a certificate of eligibility.[62]
- Arizona – Rights are restored to first-time felony offenders. Others must petition.[63][64]
- Delaware – Depending on the crime, a convicted felon either regains the right to vote after completion of sentence or cannot regain the right to vote except through a pardon.[65][66]
- Mississippi – A convicted person loses suffrage for numerous crimes identified in the state constitution, Section 241 (see note). The list is given below. Suffrage can be restored to an individual by a two-thirds vote of both houses of the legislature. The crimes that disqualify a person from voting are given in Section 241 of the state constitution as: murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy.[67]
- Nevada – First time and non-violent offenders all others may, "petition a court of competent jurisdiction for an order granting the restoration of his or her civil rights".[68]
- Tennessee – A person who is convicted of certain felonies may not regain voting rights except through pardon. These include: murder, rape, treason, and voting fraud. For a person convicted of a lesser felony, disenfranchisement ends after terms of incarceration, completion of parole, and completion of probation. In addition, the person must pay "Any court order restitution paid; current in the payment of any child support obligations; and/or Any court ordered court costs paid". The ex-offender must either obtain a court order restoring their right to vote or complete the certificate of restoration of voting rights.[69]
- Wyoming – A person convicted of a felony can, after serving the full sentence including any probation and parole, apply to the state governor to have suffrage restored. Since July 1, 2003, first-time, non-violent offenders have to wait 5 years before applying to the state parole board for restoration of suffrage. The parole board has the discretion to decide whether to reinstate rights on an individual basis.[70][71]
Four states require individual petition to the court for restoration of voting after all offenses.
- Florida – Voting rights are restored by the Florida Board of Executive Clemency. Less serious crimes do not require a hearing with the clemency board. In those cases, disenfranchisement ends after it has been 5 years after completion of terms of incarceration, completion of parole and completion of probation. An application must be submitted to the court. For those with serious crimes, after 7 years, the Florida Executive Clemency Board will decide whether or not to restore voting rights after receiving an application from the ex-offender.[72][73] The effect of Florida's law is such that in 2014 "[m]ore than one in ten Floridians – and nearly one in four African-American Floridians – are shut out of the polls because of felony convictions."[74]
- Iowa[75][76]
- Kentucky – Only the governor can reinstate Civil Rights. The ex-offender must complete "Application for Restoration of Civil Rights". The governor has discretion to restore voting rights.[77][78] Every year since 2007, the Kentucky House of Representatives has passed a bill that would amend the state constitution to restore voting rights to some non-violent offenders, but as of 2016, the bill has not passed the state Senate.[79][80]
- Virginia – Only the governor can reinstate civil rights. Governor Terry McAulifferestored rights to "individuals who have been convicted of a felony and are no longer incarcerated or under active supervision . . . In addition to confirming completion of incarceration and supervised release, the Secretary of the Commonwealth of Virginia considers factors such as active warrants, pre-trial hold, and other concerns that may be flagged by law enforcement. . . . The Governor will review SOC's analysis of each individual’s record and will make the final decision on proposed candidates for restoration of rights
