Barred from the vote: public attitudes toward the disenfranchisement of felons.

• Author: Pinaire, Brian

In the United States, except for slaves, servants, and paupers fed by the township, no one is without a vote and, hence, an indirect share in lawmaking. (1)

--Alexis de Tocqueville

The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. (2)

--Reynolds v. Sims

INTRODUCTION

If ex-felons had been able to vote in Florida during the presidential election of 2000, several scholars and commentators tell us, Al Gore would have defeated George W. Bush by between 10,000 and 85,000 votes. (3) According to the best available estimates, Florida's law, which for all practical purposes bars all ex-felons from ever voting again, (4) kept over 525,000 people, 5% of the state's voting age population, away from the polls during this last presidential election. (5) Nationally, according to the scholars at The Sentencing Project, (6) an estimated 3.9 million U.S. citizens (one in fifty adults) are disenfranchised, including over one million who have fully completed their sentences. (7) Perhaps most startling, 13% of African-American men in the United States (1.4 million) are disenfranchised, representing over 36% of the total disenfranchised population. (8)

This Essay explores a surprisingly understudied issue: public attitudes toward the disenfranchisement of felons. While forty-eight states restrict (or revoke entirely) the right of felons to vote, (9) there is remarkably little social scientific discussion of the rationale, effects, and public understanding or acceptance of felony disenfranchisement. Law review articles discuss justifications and legal strategy, (10) and some social scientists have begun to assess the impact of these laws nationwide. (11) Our survey data represent the first comprehensive assessment of public support for laws and practices of this sort.

Curiosity caused us to embark upon this project. While our preliminary research involved a review of state laws and legislative histories, we then assessed the public's understanding of, and support for, these practices. Do Americans even know about these laws? Do the laws "speak" for the people in this sense? And, perhaps most importantly, can we identify the reasoning that upholds these public attitudes?

Americans, we assumed, generally value "justice" and "rights" and expect the legal system to protect both. Yet, there is, in America, also a commitment to notions of personal responsibility and citizenship; (12) implying that rights compel duties, and those who violate the rules of the social order are punished accordingly. (13) Thus, we believed that most would accept the idea that those who "do the crime" should "do the time." But, we wondered, what happens when the "time" is up? Would support remain for continuing to punish those who served their sentences and were returned to society as free citizens?

We begin with an overview of various state laws, the significant legal and political issues they implicate, and the impact of these practices. We then move to a discussion of our primary research questions, theory, and methods, and subsequently to a discussion of our findings. Finally, we explore the policy implications of this research and propose directions for future study.

1. OVERVIEW: LAWS, ISSUES, AND IMPACT

   Currently, forty-eight states and the District of Columbia disenfranchise convicted felons during some phase of the criminal justice process. (14) Thirty-two of these states prohibit felons from voting while they are on parole and twenty-eight exclude felony probationers as well. (15) Perhaps most significant, thirteen states permanently disenfranchise some or all ex-felons. (16) Eight states permanently and categorically revoke the right to vote for all offenders, even those who have completed all aspects of their sentences, four other states permanently disenfranchise some ex-offenders, (17) and one state withholds the franchise right from some ex-felons for a period of five years upon completion of their sentence. (18)

   While each state has developed a system for restoring voting rights to ex-offenders, the restoration process is usually so complicated and cumbersome that it is rarely utilized. (25)

   The tradition of denying criminals the right to vote, a practice with roots in the Greek and Roman eras, (26) is a vestige of the medieval practice of "civil death," wherein offenders were banished from the political community. (27) The laws disenfranchising convicted felons that were in place after the revolutionary war in many states (28) took on a new and more pernicious significance after the passage of the Fifteenth Amendment to the U.S. Constitution, an amendment that gave African-American males the right to vote. (29) The right to vote has been withheld from many citizens throughout the history of this nation; women, (30) the illiterate, (31) and the property-less (32) were denied suffrage along with African-Americans. (33) In the era following Reconstruction, southern opposition and resentment led to the creation of numerous voting barriers, aimed specifically at African-Americans. (34)

   Poll taxes, (35) grandfather clauses, (36) and property tests (37) were common (and ostensibly race-neutral); but, many southern states instituted new forms of "Jim Crow" legislation meant to target African-Americans in particular, with the intention of disqualifying them from the vote. (38) The racial impact of these laws, especially in the south, is staggering. Ten states disenfranchise more than one in five adult African-American men, (39) while in seven of those states, one in four African-American men is permanently disenfranchised. (40) Furthermore, in two states, Alabama and Florida, 31% of all African-American men are permanently disenfranchised. (41)

   There are two basic theoretical justifications offered by courts and commentators for the disenfranchisement of felons. One is that the commission of a felony constitutes a violation of the "social contract." (42) The other is that such an offense demonstrates an inability to abide by the moral requirements of civic republicanism. (43) According to traditional social contract rationale, freely choosing individuals begin from an original bargaining position and design a system of neutral arrangements that will protect and promote their basic rights and interests. Central to this reasoning is the idea that all people have basic needs and that they form a community and institute rules of governance in order to provide security and a structure that will allow them to enjoy their liberty. (44) A violation of the terms of the "contract" disrupts the balance of rights and responsibilities, invites a punitive response according to pre-determined rules, and essentially (at least temporarily) strips the individual of her right to participate in the political process. (45)

   The civic republican rationale for disenfranchisement is animated by a concern for the moral character of the political community and specifically the virtue of its members. (46) A polis, in other words, is only as well-ordered as the moral compass directing its citizen-components. (47) Thus, rather than emphasizing the choice inherent in the liberal, contractarian model above, civic republicanism embraces the political fitness, quality and essence of its members, and therefore, their capacity to conceive of and act toward the common good. (48) As a result, it is not so much that a violation earns you time in the proverbial "penalty box," but rather that you no longer exude the qualities of a good and right "team player," and thus no longer deserve a spot on the roster.

   In two significant voting rights cases within the last three decades, the United States Supreme Court considered these different strands of reasoning as it upheld the constitutionality of laws that disenfranchise convicted felons. (49) While the Court has called the right to vote "fundamental," (50) making it clear that "no right is more precious in a free country," (51) and while it has famously asserted that the "right to vote freely for the candidate of one's choice is the essence of a democratic society," (52) the Supreme Court has failed to extend this guarantee to convicted felons.

   In the first major challenge of felony disenfranchisement laws to reach the Court, Richardson v. Ramirez, (53) Justice Rehnquist, later Chief Justice, authored a majority opinion that upheld a California law denying ex-felons the right to vote. (54) For the majority, Section 1 of the Fourteenth Amendment, which prohibits states from denying persons equal protection of the laws, must be read in light of Section 2 of the amendment, which implies that states have the capacity to disenfranchise those who participate in "rebellion, or other crime." (55) Read this way, the traditional "strict scrutiny" standard of Section 1 "could not have been meant to bar outright a form of disenfranchisement" (56) which "has an affirmative sanction in [section] 2." (57)

   In his dissent, Justice Marshall was quick to realize the potential for extreme abuses of discretion if the phrase "other crimes" was to be so loosely interpreted. (58) "Absurd results" could follow, according to Justice Marshall, if the states were granted the authority to give meaning to such an open-ended concept, legitimating disenfranchisement for seduction under promise to marry, conspiracy to operate a motor vehicle without a muffler, vagrancy, breaking a water pipe, or even jaywalking or a traffic conviction, "since [section] 2 does not differentiate between felonies and misdemeanors." (59)

   Eleven years later, however, in an Alabama case, the Supreme Court took the opportunity to put an important limitation on the "other crime" doctrine established in Ramirez. In Hunter v. Underwood, (60) the Court unanimously declared that "[section] 2 was not designed to permit the purposeful racial discrimination...