Next year, 5 million Americans will not be allowed to vote because of a past criminal conviction. Nearly 4 million of them are not in prison, yet they stay disenfranchised.
States vary on when they restore voting rights after a conviction. Maine and Vermont do not disenfranchise people with convictions; even prisoners may vote. People with felony convictions in Florida, Iowa, Kentucky and Virginia are disenfranchised for life, unless granted clemency by the governor. The rest of the country falls somewhere between.
In the late 1800s, criminal disenfranchisement laws spread as part of a backlash against the Reconstruction Amendments – the Thirteenth, Fourteenth and Fifteenth Amendments – that ended slavery, granted equal citizenship to freed slaves, and prohibited racial discrimination in voting. The disenfranchisement laws were employed alongside poll taxes and literacy tests as part of an effort to design ostensibly race neutral laws (that were, in fact, intentional barriers to African-American voting). Twenty-seven states enacted laws restricting the voting rights of people with criminal convictions.
During the Virginia Constitutional Convention of 1901, delegate Carter Glass described the suffrage proposal which included felony disenfranchisement as a plan that would “eliminate the darkey as a political factor in this state in less than five years.”
In New York, African-American suffrage was the subject of much debate at the 1821 and 1846 constitutional conventions. New York delegate Samuel Young implored: “Look to your jails and penitentiaries. By whom are they filled? By the very race whom it is now proposed to clothe with the power of deciding upon your political rights.”
When states enacted criminal disenfranchisement laws, they expanded criminal codes to punish offenses they believed targeted recently freed slaves. In an 1896 decision, Ratliff v. Beale, the Mississippi Supreme Court confirmed that the state constitution narrowed the disenfranchisement provision to target certain crimes such as theft, perjury, forgery, and bigamy, of which blacks were more often convicted. Today, Mississippi’s constitution still denies the right to vote based on the same “furtive offenses.”
Nationwide, 13% of black men have lost the right to vote, a rate seven times the national average. The ripple effects of large-scale incarceration now extend beyond the people imprisoned, and, as a result, minority communities throughout the country have lost political influence.
Challenges to criminal disenfranchisement laws have largely failed. In 1974, the Supreme Court issued an opinion in Richardson v. Ramirez, a challenge to California’s law. William Rehnquist relied on the Fourteenth Amendment itself to sanction criminal disenfranchisement laws. The Court ruled that Section 2 of the amendment, which reduces a state’s representation in Congress if the state has denied the right to vote for any reason “except for participation in rebellion, or other crime,” distinguishes felony disenfranchisement from other forms of voting restrictions.
State legislatures have stepped up where court challenges have failed. Since 1997, twenty-three states have restored voting rights or eased the restoration process.
Representative John Conyers Jr. reintroduced into the House a bill that would go a long way toward ending disenfranchisement. A coalition of law enforcement, religious leaders, and civil rights groups support the measure, which would restore voting rights in federal elections to all Americans who are out of prison.