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The 2000 presidential election revealed a number of fault lines in the American electoral system, including the problem of felon disenfranchisement. While “hanging chads” garnered most of the attention, the disenfranchisement of tens of thousands of former felons in Florida, and millions across the country, not only helped swing the election to George W. Bush, but highlighted a challenge to our democratic ideals. As it turned out, if only one in every 50 of the Florida former felons had voted, and if 60% had voted for Al Gore, the history of past six years would be quite different. The right to vote is among the most basic guarantees of citizenship in a democracy. Over the years, the Constitution has been amended more often with respect to this right than any other matter. But notwithstanding the expansion of the franchise in America, we continue to disenfranchise former felons (those who have already served their time in prison and are either on parole or living freely with no supervision) at startling rates and in numbers that dwarf other democratic countries. Felon disenfranchisement presents a complex of social, legal and political issues. In Locked Out: Felon Disenfranchisement and American Democracy (Oxford University Press 2006), Jeff Manza, a professor of sociology at Northwestern University, and Christopher Uggen, a professor of sociology at the University of Minnesota, have undertaken an exhaustive study of these issues. Viewing felon disenfranchisement from historical and political perspectives, the authors analyze and discuss the various justifications for felon disenfranchisement from the perspective of democratic principles, provide strong empirical evidence as to the racial impact of these laws, explore the practical political results of disenfranchisement (who wins or loses as a result of these practices), and examine the legal challenges to these practices. In many instances, their findings support conventional wisdom regarding these issues, but not always. Thus, former felons do not speak with one political voice and they are not necessarily predictable votes for particular candidates or particular sides of issues. The increase in felon disenfranchisement is a product of the very high rates of incarceration in this country and a crazy quilt of state laws. In two states, there is no disenfranchisement; in 13 states, felons are barred from voting for life; and in the rest there are statutes that disenfranchise during certain periods of incarceration, probation and parole. The most disturbing aspect is the racially disproportionate impact of these laws. In 14 states, one of every 10 African-Americans is disenfranchised, and in five of these jurisdictions, there is a 20% African-American disenfranchisement rate. To sort out how these laws affect racial minorities and how the disparate impact might be challenged, the authors engage in an empirical and statistical overview of disenfranchisement laws. Most individuals affected by these laws are nonviolent offenders, and many are those who have been convicted in the war on drugs, which has targeted racial minorities at a severely disproportionate rate. Further, the authors found a direct relationship between the African-American proportion of a state’s prison population and the probability that the state will adopt or extend felon disenfranchisement. Thus, as other racial barriers have fallen, disenfranchisement has become the primary means of reducing the African-American vote. As a process, it is no more “race-neutral” than literacy tests or poll taxes. Yet, without proof of an “intent” to discriminate, the courts have rejected constitutional and Voting Rights Act challenges. In a related development, many states engage in prison-based gerrymandering, in which they assign the population of mainly rural prisons to the districts in which the prisons are located, even though the great majority of inmates are from urban districts in the same state. The dilution of the voting power of minority voters in the urban district presents significant questions under the Voting Rights Act. Discredited theories still prevail Disenfranchisement laws are, for the most part, disfavored by a majority of Americans. Yet in many places the rationales offered in defense of felon disenfranchisement-including the “purity of the franchise,” the importance of the “social contract” and possible “corruption” of the ballot process-continue to hold sway, however difficult it is to credit these theories with respect to those who have already paid their debts to society. To test assumptions regarding the characteristics of those convicted of crime, the authors conducted an analysis of data concerning former public school students in St. Paul, Minn. Canvassing a range of attitudes and conduct, the study concluded that there is no fixed line in terms of political engagement and citizenship between those with criminal records and those without. For the entire history of our nation, racial barriers to voting have stained our constitutional fabric. Today, felon disenfranchisement is the last standing formal bar to equality in the voting booth. The authors cite to legislative reforms and public attitudes supportive of ending much of felon disenfranchisement, but even their cautious optimism may not be warranted, given the harshly punitive and racially biased aspects of our criminal justice system. David Rudovsky is a senior fellow at the University of Pennsylvania Law School.

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