Disenfranchised and Disempowered: Felon Disenfranchisement and The Voting Rights Act of 1965
5.85 million people across the United States are not permitted to vote under federal law [1]. They are unable to take part in the United States’ political process, either temporarily or permanently, and are barred from advancing what they believe is right for their own country, a core democratic tenet. These individuals are currently or formerly incarcerated, which, in most states, means that they cannot vote until they are released. In some states, formerly incarcerated people are not even able to vote post-sentence. In Florida, Iowa, Kentucky, and Tennessee, the process of regaining the right to vote is virtually impossible [2].
While disenfranchising felons or former felons seems to be part of the American creed, it is actually a relatively new idea. Punitive disenfranchisement laws were not passed until the fifteen year period after the Civil War, coinciding with the ratification of the Thirteenth and Fifteenth Amendment [3]. The Thirteenth Amendment abolished slavery, stating: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction” [4]. This amendment is crucial to understanding the impact of disenfranchisement not only because it outlawed slavery, but also because of the exceptions clause which enabled mostly Southerners to use Black labor as long as they were incarcerated. Practically, this meant that being Black was outlawed. Laws called “Black Codes” were passed, meaning that vagrancy or unemployment could be punished with prison time [5]. Following the ratification of the Fifteenth Amendment, which granted citizens the right to vote regardless of color, race, or previous enslavement, Southerns found new ways to prevent formerly enslaved people from voting [6]. These included the creation of poll taxes and the “grandfather clause” which stipulated that voting required proof that a grandfather had voted, an impossible task for Black Americans whose ancestors were slaves [7].
The method most relevant for our purposes, considering that it still exists today on an even larger scale, is felon disenfranchisement. Felon disenfranchisement existed prior to the Civil War, but began to be weaponized for certain purposes after the Civil War. Some trace its origins to Ancient Greece, but it is clear that it was only used in cases of extreme crimes or election-related offenses. In the wake of the Civil War, however, disenfranchisement was used specifically to prevent Black Americans from voting. In 1890, Mississippi was the first state to enact a disenfranchisement law, stipulating that crimes like bigamy, forgery, burglary, arson, and perjury — which they thought Black people were the most likely to commit — were qualifications to be revoked of voting rights. This led to more states adopting similar laws, with South Carolina, Louisiana and Alabama following suit shortly thereafter [8].
Out of the population of those disenfranchised, 1 in 16 are black [9]. This is relevant because racial disparities affect prison rates drastically. Black Americans are 3.4 times more likely to go to prison than White Americans, largely because of systemic racism and the implications of the War on Drugs [10]. The effects of slavery and Reconstruction are incredibly salient today, creating the current political environment prone to disenfranchising felons. While the 15th Amendment formally granted Black Americans the right to vote, it wasn’t until the Voting Rights Act of 1965 that this right was adequately enforced. This Act states that the right to vote could not be discriminated against based on race, color, or membership of a “language minority group.” Practically, the Act provided the enforcement power to realize the promises of the 15th Amendment [11].
The Voting Rights Act prohibits the revoking of the right to vote to those currently and formerly incarcerated for two reasons. First, these laws have inherent racial undertones and contexts. As stated, these laws were rooted in inherently racist ideals and practices. To continue to uphold similar laws is to uphold racism in voting rights, something that the Voting Rights Act prohibits. These laws also disproportionately affect Black Americans. In Alabama and Florida, for example, 31 percent of Black men are permanently disenfranchised. In Iowa, Mississippi, New Mexico, Virginia, and Washington, approximately one in four Black men are permanently disenfranchised. This means that even if they are not currently incarcerated or on parole, they will never be able to vote according to state law. This rate of disenfranchisement is seven times the national average [12].
It is clear that there is a racial discernment that needs to be made when it comes to addressing felony disenfranchisement. If the right to vote cannot be infringed upon based on race, then how is it legally allowed for 31 percent of Black men to be permanently unable to vote in some areas of the country? One in 16 Black people in this country will, at some point in their life, be disenfranchised, meaning they won’t be able to participate in the political process that holds this system in place. It is precisely for this reason, the capacity to change the existing political system, that voting rights are especially important for historically and contemporarily marginalized groups.
Second, the Voting Rights Act clearly states that it applies to “all voting qualifications,” meaning criminality legally can’t be excluded. Justice Sonia Sotomayor interpreted the Voting Rights Act this way in Hayden v. Pataki (2006). She argued, “It is plain to anyone reading the Voting Rights Act that it applies to all "voting qualification[s].” And it is equally plain that § 5-106 disqualifies a group of people from voting.” She continued later to say that “The duty of a judge is to follow the law, not to question its plain terms. I do not believe that Congress wishes us to disregard the plain language of any statute or to invent exceptions to the statutes it has created” [13]. Furthermore, it is imperative to take into account the massive amount of people that are incarcerated in the US. Even though the US only makes up five percent of the population, it makes up twenty percent of the world’s incarcerated population [14]. Comparing even state incarceration populations as if they were nations to actual countries across the world, 24 states have a higher incarceration rate than any other country. Massachusetts, which has the lowest incarceration rate in the country, still has a higher incarceration rate than all of the founding NATO nations, Colombia, and Iran [15]. In a country where incarceration rates are so high, voting qualifications must apply because if not, it would be preventing such a large population, a very marginalized population, from being able to vote. The Voting Rights Act is historically considered a significant victory, and to not include a massive part of the population is antithetical to its original intention.
There have been several cases where felony disenfranchisement was challenged on the basis of the Voting Rights Act of 1965. The first is Hayden v. Pataki (2006), as previously mentioned, a case which challenged New York’s state law stipulating that formerly and currently incarcerated people on parole do not have the right to vote. Hayden challenged this law with the claim that prohibiting incarcerated people to vote violates the Voting Rights Act of 1965 on the basis of race, considering it affects Black people more than any other group. The court ruled that disenfranchisement did not violate the Voting Rights Act of 1965 because Congress never intended for criminality to be a factor in voting rights, and since they never explicitly stated that this is a right it cannot be enforced [16]. The idea of intent in the law, a highly disputed topic, is the counterargument that will be addressed here. Original intent means that the law should be interpreted through the lens of what the framers originally meant. Conversely, living intent means that the law should be interpreted in accordance with the times. These ideals apply specifically to the Constitution, but also can apply to the law more broadly. Even to assume that we are using the creed of original intent, contemporary times have resulted in a completely different America than the one in 1965. In 1965, when this bill was passed, there were about 210,000 people incarcerated with a population of about 195 million (a rate of 0.1 percent). Now, the rate of incarceration is about 0.7%. It is clear that this rate is one that is exponentially high, and something that the creators of the Voting Rights Act would have never predicted. Not only this, but it is clear that there is a direct link to felon disenfranchisement and race, with disproportionate effects to Black and brown people. The intention of the legislators of the Voting Rights Act was to create an America where everyone could vote. If the creators of this bill had known the population of incarcerated people, especially considering the percentage of this population that is people of color, it can be presumed that they never would have wanted felon disenfranchisement to exist, if their vision was to truly create this truly democratic America. It is clear that that vision is not today’s America, and to create that America, felon disenfranchisement needs to be disposed of.
The Voting Rights Act of 1965 was supposed to protect all people, in all voting qualifications. In a country with an intensely racial history, it is imperative to consider this and how this has intentionally resulted in felon disenfranchisement. Now that the law is equal, it is imperative that this is true legally and practically. So what are the next steps? Many cases concerning the Voting Rights Act and felon disenfranchisement more recently have not been considered by the Supreme Court. It is clear that the Supreme Court has a duty to uphold the voting rights of all citizens, especially those who have historically been prevented from voting, which includes those incarcerated.
Bibliography
[1] Chris Uggen, Ryan Larson. “Estimates of People Denied Voting Rights Due to a Felony.” The Sentencing Project, November 2, 2022. https://www.sentencingproject.org/reports/locked-out-2020-estimates-of-people-denied-voting-ri ghts-due-to-a-felony-conviction/.
[2] Lopez, German. “The State of Ex-Felons’ Voting Rights, Explained.” Vox, September 18, 2020. https://www.vox.com/voting-rights/21440014/prisoner-felon-voting-rights-2020-election.
[3] Kelley, Erin. Rep. Racism & Felony Disenfranchisement: An Intertwined History. Brennan Center for Justice, May 9 2017.
[4] “13th Amendment to the U.S. Constitution: Abolition of Slavery (1865).” National Archives and Records Administration. Accessed October 20, 2023. https://www.archives.gov/milestone-documents/13th-amendment#:~:text=The%2013th%20Ame ndment%20to%20the%20United%20States%20Constitution%20provides%20that,place%20subj ect%20to%20their%20jurisdiction.%22.
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[6] Pildes, Richard, and Bradley Smith. “The Fifteenth Amendment.” National Constitution Center – constitutioncenter.org. Accessed October 21, 2023.
[7] “Voting Rights for African Americans : The Right to Vote : Elections : Classroom Materials at the Library of Congress : Library of Congress.” The Library of Congress. Accessed October 21, 2023. https://www.loc.gov/classroom-materials/elections/right-to-vote/voting-rights-for-african-americ ans/.
[8] Kelley, n2.
[9] Uggen, Chris, Ryan Larson, Sarah Shannon, and Arleth Pulido-Nava. “Estimates of People Denied Voting Rights Due to a Felony.” The Sentencing Project, November 2, 2022. https://www.sentencingproject.org/reports/locked-out-2020-estimates-of-people-denied-voting-rights-due-to-a-felony-conviction/.
[10] The Pew Charitable Trusts. “Racial Disparities Persist in Many U.S. Jails.” The Pew Charitable Trusts, May 16, 2023. https://www.pewtrusts.org/en/research-and-analysis/issue-briefs/2023/05/racial-disparities-persis t-in-many-us-jails.
[11] “Voting Rights Act (1965).” National Archives and Records Administration. Accessed October 21, 2023. https://www.archives.gov/milestone-documents/voting-rights-act#:~:text=This%20act%20was% 20signed%20into,as%20a%20prerequisite%20to%20voting. [12] The Sentencing Project. “CURRENT IMPACT OF DISENFRANCHISEMENT LAWS.” Current impact of disenfranchisement laws: Losing the vote : The impact of felony disenfranchisement laws in the United States. Accessed October 21, 2023. https://www.hrw.org/legacy/reports98/vote/usvot98o-01.htm.
[13] Hayden v. Pataki, 449 F.3d 305 (United States Court of Appeals for the Second Circuit 2006)
[14 ] “Mass Incarceration.” American Civil Liberties Union, June 28, 2023. https://www.aclu.org/issues/smart-justice/mass-incarceration.
[15] Prison Policy Initiative. “States of Incarceration: The Global Context 2021.” Prison Policy Initiative. Accessed October 21, 2023. https://www.prisonpolicy.org/global/2021.html.
[16] 449 F.3d 305