New Tricks for an Old Dog: Deterring the Vote Through Confusion in Felon Disenfranchisement.

• Author: Zhang, Emily Rong
• Position: Symposium on Felon Disenfranchisement

ABSTRACT

Felon disenfranchisement laws do not just disenfranchise. They also confuse. By imposing heavy penalties for failing to correctly navigate complex provisions, these statutes confuse eligible voters and discourage them from exercising their right to vote. In this way, felon disenfranchisement laws resemble modern voter suppression laws: they deter eligible voters from voting. Modest reforms can and should be implemented to affirmatively inform formerly incarcerated individuals of their restored voting rights.

MISSOURI LAW REVIEW

INTRODUCTION

Modern voter suppression efforts have given special force - and sinister undertone - to the old political adage of "if you can't convince them, confuse them."(1) This tactic applies not only to the content of policy proposals and candidate positions but also to the nuts and bolts of election laws themselves: who can vote, when to vote, where to vote, how to vote, and what is needed to vote. Voter suppression laws include those imposing identification or proof of eligibility requirements for voting as well as those restricting opportunities to vote and to register to vote. In addition to directly disenfranchising otherwise eligible voters, many of these laws also suppress the vote by imposing severe information costs. Put simply, disenfranchisement through confusion has become a distinct feature of modern voter suppression and should be addressed.

Felon disenfranchisement laws - while long pre-dating the post-Shelby County v. Holder wave of voter suppression laws(2) - also contain this same feature. Indeed, given the complexity of many felon disenfranchisement regimes, especially when and how voting rights are restored, disenfranchisement can also operate through confusion. In this way, felon disenfranchisement straddles the world of first and second generation voter disenfranchisement.(3) ( ) As a remnant of the first generation, some felon disenfranchisement laws still directly, cruelly, and widely disenfranchise a significant segment of the population. But, as many of these laws take root and adapt to life in the second generation world, they have also acquired a voter suppressive effect derived from confusion. And so, felon disenfranchisement laws today combine two distinct strategies: disenfranchise a lot of people and make many others unsure about whether they are disenfranchised.

This Article first describes these two strategies and then focuses on the second generation tactics. It explains the similarities between the voter confusion costs of modern voter suppression and those of felon disenfranchisement. These similarities derive largely from the complexity of compliance. In the felon disenfranchisement context, such complexity is compounded by the fact that it has two temporal stages: when voting rights are taken away and when they are given back. Moreover, not only are felon disenfranchisement laws potentially more confusing than modern voter suppression laws, they also inspire - and warrant - more risk aversion in voting. For affected voters, mistaking whether one is in fact eligible to vote risks committing a crime, the very reason these voters were subject to felon disenfranchisement laws in the first place. Finally, this Article suggests reforms for doctrine and policy to reduce voter confusion in felon disenfranchisement laws.

1. NEW TRICKS

   In the post-Shelby County era,(4) first-generation voter disenfranchisement meets second-generation voter suppression. Distinguishing between the two generations not only helps demarcate the eras in which these strategies were operational, but also helps to identify the features and strategies of voter suppression borne of the two different eras. It is the combination of first- and second-generation aspects of felon disenfranchisement law that produces a voter suppression strategy that is more than the sum of its parts. No voter suppression law is more first-generation than that disenfranchising felons.(5) Felon disenfranchisement is one of the original sins of our democracy, outlasting its peers such as literacy tests and poll taxes.(6) In the modern era, it blushes with anachronism: no other law so out rightly, widely, and shamelessly disenfranchises so many people.

   Despite its age, felon disenfranchisement is a pivotal tool in modern voter suppression as well.(7) What never went away as a first-generation strategy of disenfranchisement has now acquired the undesirable characteristics of its second-generation peers as well. And it is its place among the second-generation voter suppression strategies that I focus on in this Article. As reforms slowly erode outright bans on voting for large swathes of the population, felon disenfranchisement laws increasingly suppress voting by confusing eligible voters. This confusion has special force in the low information environments that voters who are implicated by felon disenfranchisement laws inhabit.

   In order to better understand the specific aspects of felon disenfranchisement laws that suppress - and deter - voting through confusion, this section surveys how second-generation voter suppression laws employ confusion. Then, the following section identifies those elements and strategies of confusion in felon disenfranchisement laws.

   1. Confusion from Complexity

      Many of felon disenfranchisement's modern peers derive their voter suppression effects from confusion over how to properly comply with requirements for voting. Lacking the political cover to implement outright restrictions on the franchise or the legal cover to explicitly target racial minorities, modern voter suppression relies, in part, on confusing voters about what it takes to vote.(8) To be sure, these laws are often focused on disenfranchising individuals who cannot meet the implemented requirements (e.g., not possessing photo ID or inability to vote except during the early voting period). But confusion helps extend the voter suppressive effects beyond individuals facially affected by the law.

      Complexity engenders confusion. Voter ID laws demonstrate this well. What constitutes and - more importantly - what does not constitute acceptable ID for purposes of voting can be confusing and unexpected. Take, for example, the voter ID law that Wisconsin implemented in the wake of Shelby County v. Holder.(9) The law considers military IDs to be acceptable but not Veteran IDs.(10) ( ) Student IDs from accredited Wisconsin universities or colleges are acceptable while those from Wisconsin's sixteen two-year technical colleges are not.(11) ( ) Students must additionally proffer a document "showing that he or she is currently enrolled."(12) Even the basic question of when a photo ID is required to vote is not easily answered by the law. For example, some - but not all - mail-in absentee voters must provide ID, even though election administrators cannot match the voter casting the ballot to an ID photo for any mail-in ballots.(13)

      Kansas's Documentary Proof of Citizenship ("DPOC") Law demonstrates the same problem of voter confusion.(14) In 2011, Kansas passed a law requiring all prospective voter registrants to submit documentary proof of citizenship.(15) The district court described the process of registering to vote under the new regime at the Department of Motor Vehicles ("DMV") as "burdensome, confusing and inconsistently enforced."(16) For example, two of the plaintiffs in the case were asked whether they wished to register to vote at the DMV. Since they answered in the affirmative, they believed they had properly been registered to vote.(17) However, because they lacked DPOC, these plaintiffs were never actually registered.(18) Indeed, the plaintiffs' confusion was matched by that of election workers: one of the plaintiffs returned to the DMV to provide his DPOC, only to be told he was already registered to vote when, in fact, he was not.(19) The confusion was further compounded by the fact that Kansas did not consistently provide notice to individuals who failed to provide DPOC that they must do so if they desired to vote.(20)

      These examples demonstrate that the voter suppression effects of any given law cannot simply be measured by the number of individuals it disenfranchises on its face. For instance, the suppressive effect of Wisconsin's voter ID law extends far beyond the number of individuals without valid ID or with ID that is expired for purposes of voting.(21) Voter suppression also derives from the complexity of the legal regime for voting. When the State constructs a complex legal landscape that voters must be informed about and then correctly navigate, it puts pressure on the ability and confidence of voters to get the law right. When such cognitive demands are severe, either because of sheer complexity or lack of reasoning that voters can intuit, voter confusion is virtually guaranteed.

   2. Confusion Over Safeguards Diminishes Their Value

      The strategy of using complexity to induce confusion and hence uncertainty about voter eligibility is especially obvious when considering the safeguards provided supposedly to help voters. With voter ID laws, permitting IDs to be used past expiration might be considered a safeguard - except that the rules governing expired IDs are often confusing. Consider, for instance, how long each kind of voter ID could be used post expiration in Wisconsin.(22) Most IDs are not valid if they expired after the most recent general election, even though a passport or a driver's license from more than two years ago can serve as valid verification of an individual's identification - the general features of one's face, name, gender and date of birth rarely change significantly over time.(23) Naturalization certificates, which do not themselves expire, are given an artificial expiration date for voter ID purposes.(24)

      Yet in contrast to the Texas voter ID law, which bars all use of IDs expiring sixty days before the date of presentation at the polls,(25) the Wisconsin voter...