AuthorOkechukwu, Teddy

INTRODUCTION. 1304 I. THE LANDSCAPE OF FELONY DISENFRANCHISEMENT IN THE UNITED STATES. 1306 A. History of Voting and Disenfranchisement. 1306 B. Current Disenfranchisement Laws. 1308 C. The Pernicious Effects of Contemporary Disenfranchisement Laws. 1312 II. THE FLAWED JUSTIFICATIONS BEHIND FELONY DISENFRANCHISEMENT LAWS 1316 A. Purity of the Ballot Box 1317 B. Partisanship 1318 III. IMPORTANT LEGAL PRECEDENTS AND CHALLENGES TO FELONY DISENFRANCHISEMENT. 1319 A. Judicial Challenges to Felony Disenfranchisement Under the Equal Protection Clause 1320 B. Judicial Challenges to Felony Disenfranchisement Under the Voting Rights Act. 1322 IV. NOTABLE STATE ENFRANCHISEMENT EFFORTS. 1324 A. Florida. 1325 B. California. 1327 C. Maine, Vermont, and Washington, D.C. 1328 V. How TO ACHIEVE FULL ENFRANCHISEMENT 1329 A. Proposed and Potential Federal Legislation. 1330 B. State Legislation 1332 VI. ANTICIPATING LEGAL CHALLENGES. 1334 CONCLUSION. 1339 INTRODUCTION

"I believe that everyone, and I mean everyone, deserves their right [to vote]." (1) Antonio Lancaster, voting for the first time in the November 2020 election, has been incarcerated since 2003 following an armed robbery conviction. (2) At age nineteen, he lost his right to vote before he was ever able to use it. (3) Then, Lancaster became one the first Washington D.C. residents to cast an absentee ballot while incarcerated following the July 2020 passage of emergency criminal justice reform legislation. (4) This legislation ended the practice of felony disenfranchisement--the practice of barring an individual who has been convicted of a felony from casting a vote in political elections (5) --in the District of Columbia. (6) Because D.C. has no federal prison, residents convicted of felonies are sent to federal prisons across the country. (7) Lancaster, currently serving his sentence in a Kansas prison, noted that fellow inmates are jealous of his reinstated right to vote: "When we talk about [voting], they're like, 'You don't know how lucky you are.'" (8)

Lancaster, and other D.C. residents who are currently incarcerated, should indeed feel lucky to have their right to vote restored. "While a growing number of states have restored rights to people who have completed their sentences or who are currently on parole, currently incarcerated people have largely been left behind." (9) Only two states, Maine and Vermont, and the District of Columbia, have extended the right to vote to every citizen, regardless of any prior criminal convictions. (10) The United States, however, bars nearly 5.3 million Americans from voting on the grounds that they have a criminal conviction. (11)

The United States is uniquely restrictive in its usage of disenfranchisement laws. (12) "No other democratic country in the world denies as many people--in absolute or proportional terms--the right to vote because of felony convictions." (13) This is in large part attributed to the "direct connection between racial politics and felon disenfranchisement." (14) In a country where Black and brown Americans make up the majority of people who are currently, or will be, incarcerated, (15) and more Black men are in prison currently than during slavery, (16) felony disenfranchisement laws silence the voices of those who are most affected by the criminal justice system, leaving the disenfranchised without a say in choosing the representatives of the system and the very conditions in which they live.

Although states like Florida (17) and California (18) have made some change to their felony disenfranchisement laws in recent years, only one jurisdiction, Washington D.C., has restored the right to vote to everyone. (19) Unfortunately, incremental change continues to leave room for disenfranchisement. There is no evidence that disenfranchising formerly and presently incarcerated citizens aids in rehabilitation or deterrence. Felony disenfranchisement policies have served as a means of retribution, used to stigmatize and alienate people who have been incarcerated. The remaining forty-eight states that still employ felony disenfranchisement must adopt legislation that guarantees the right to vote to all citizens, regardless of their criminal record. Only then can America ensure that it is living up to its founding democratic principles.


    1. History of Voting and Disenfranchisement

      The United States Supreme Court has repeatedly venerated the right to vote. "No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined." (20) The disenfranchisement of incarcerated citizens runs in direct opposition to this stated ideal.

      The act of disenfranchising a person convicted of a felony has roots dating back to ancient Greece. (21) "Civil death" involved various punishments, including "the forfeiture of property, loss of right to appear in court, prohibition on entering into contracts,... [and] the loss of voting rights." (22) In the United States, following the American Revolution, the proliferation of felony disenfranchisement laws ushered in "civic death" for many citizens of the newly established nation. (23) Article I, Section Two of the United States Constitution granted states the power to establish their own voter qualifications. (24) By the outset of the Civil War in 1861, over twenty of the existing thirty-four states either had enacted statutes that barred people with felony convictions from voting or had amendments within their respective state constitutions with disenfranchisement provisions. (25) This trend continued in the thirty-five years after the Civil War, as nineteen states adopted or amended laws restricting the right to vote for citizens with criminal records. (26)

      In particular, disenfranchisement laws burgeoned as white Southerners sought ways to prevent Black citizens, who had recently gained the right to vote, from attaining political power. While the Thirteenth Amendment abolished slavery in the United States, it allowed for slavery to remain as a form of punishment for those convicted of a crime. (27) States took advantage of this provision to disenfranchise Black voters through various methods, including "tying the loss of voting rights to crimes alleged to be committed primarily by [B]lacks while excluding offenses held to be committed by whites." (28)

      Pervasive disenfranchisement laws persisted across the country throughout the twentieth century. While the Civil Rights Movement of the mid-twentieth century brought enormous changes to the disenfranchisement landscape--notably through the passage of the Voting Rights Act in 1965 --felon disenfranchisement remained rampant. (29) As Michelle Alexander observed, "[f]allowing the collapse of Jim Crow, all of the race-neutral devices for excluding [B]lacks from the electorate were eliminated through litigation or legislation, except felon disenfranchisement laws." (30) Today, felon disenfranchisement laws continue to exist in nearly every state, and the prevalence of these laws have far-reaching and detrimental consequences for people in overpoliced and hyper-criminalized communities.

    2. Current Disenfranchisement Laws

      Although eleven states and the District of Columbia have expanded voting rights for currently and formerly incarcerated citizens since 2016, (31) forty-eight states still have statutes or constitutional provisions on the books that disenfranchise Americans with felony convictions. (32) About threequarters of those disenfranchised by these laws are not currently incarcerated, while the remaining quarter are people who are currently imprisoned. (33) The restrictiveness of these laws varies by state. In twenty-four states (California, (34) Colorado, (35) Connecticut, (36) Hawaii, (37) Illinois, (38) Indiana, (39) Louisiana, (40) Maryland, (41) Massachusetts, (42) Michigan, (43) Montana, (44) Nevada, (45) New Jersey, (46) New Hampshire, (47) New York, (48) North Carolina, (49) North Dakota' (50) Ohio, (51) Oregon, (52) Pennsylvania's Rhode Island,' (54) Utah, (55) Virginia, (56) and Washington (57) ), people with felony convictions lose their voting rights only for the period of time in which they are incarcerated, and their voting rights are automatically restored upon release. (58) In fifteen states (Alaska, (59) Arkansas, (60) Georgia, (61) Idaho, (62) Kansas, (63) Minnesota, (64) Missouri, (65) Nebraska, (66) New Mexico, (67) Oklahoma, (68) South Carolina, (69) South Dakota, (70) Texas, (71) West Virginia, (72) and Wisconsin (73) ) citizens with felony convictions lose their voting rights during incarceration as well as during their parole and probation. (74) Voting rights are then automatically restored after this time period. (75) Formerly incarcerated people "may also have to pay outstanding fines, fees or restitution before their rights are restored .... " (76) In nine states (Alabama, (77) Arizona, (78) Delaware, (79) Florida, (80) Iowa, (81) Kentucky, (82) Mississippi, (83) Tennessee, (84) and Wyoming (85) ), people with felonies lose their voting rights indefinitely for some crimes or require a governor's pardon to restore their voting rights, while others face an additional waiting period after completion of their sentence (including parole and probation) or require additional actions before voting rights can be restored. (86) In Tennessee, for example, in lieu of a governor's pardon, a person convicted of an infamous crime may petition for a restoration of their voting rights after completing their sentence. (87)

    3. The Pernicious Effects of Contemporary Disenfranchisement Laws

      Felony disenfranchisement laws have detrimental impacts that reverberate across communities throughout the United States. The effects of these laws are particularly glaring when they are presented...

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