X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Al Gore sure could use an extra million-plus votes on Nov. 7. And those potential voters are out there. But inconveniently, they’re all in Sing-Sing, San Quentin and hundreds of other prisons, and in the big pool of prison alumni. And for now, they can’t vote. Some 4 million convicted felons are disenfranchised by state law. But a movement is afoot to change that. And if that happens, a new study co-authored by criminologist Christopher Uggen of the University of Minnesota indicates, the felon vote could give many close elections to the Democrats. “Democrats have successfully co-opted Republican policies on crime,” backing the laws that have filled the prisons, says Uggen. “One unanticipated cost of that strategy has been an erosion of the Democratic voter base.” The push to re-enfranchise felons is gaining steam, most notably in Florida and Pennsylvania, where key lawsuits have been filed to restore prisoner voting rights. The political parties have no apparent connection to the litigation, which originated with groups devoted to democracy and racial equality, and with felons themselves. Florida is the natural target for advocates of the felon franchise. It is one of 11 states that generally disenfranchise all felons for life. (Most states disenfranchise probationers or parolees, and nearly all disenfranchise inmates.) Florida is the biggest of the strict states; it also has the biggest prison alumni group. Fully 525,000 Floridians who have completed their sentences and supervision cannot legally vote. Thomas Johnson, the lead plaintiff in a suit filed by ex-felons against Florida in September, happens to be a fan of the Bush brothers. Florida Governor Jeb Bush, the lead defendant, has praised the faith-based program for ex-cons that Johnson has built in Gainesville since his own release from prison. But Johnson sees no recognition of the ex-cons’ human dignity. “I don’t care about Democrat or Republican,” he says. “I care about treating a man the way he’s supposed to be treated. I tell my men they’ve paid their debt to society. They say, ‘If I’m a full citizen, so how come I can’t vote?’ There’s a hypocrisy there.” Defenders of felon voting restrictions invoke the social compact. In the words of Roger Clegg, general counsel of the Washington, D.C.-based Center for Equal Opportunity, “It is not too much to demand that those who would make the laws for others — who would participate in self-government — be willing to follow those laws themselves.” Nancy Northup, director of the Democracy Program at New York University’s Brennan Center for Justice, is the lead attorney for the Florida ex-felons. She says that the issue has renewed urgency because of the prison boom. “Disenfranchised felons used to represent 1 percent of Florida’s voting-age population,” she says. “Now it’s 5 percent.” When one focuses on the black community alone, the numbers become truly startling. Counting both inmates and ex-inmates, 24 percent of Florida’s voting-age black males cannot vote. Marc Mauer of the Sentencing Project jump-started the felon franchise movement with Losing the Vote, a 1998 report he co-authored. “Voting rights were at the heart of the early civil rights movement,” he says, “and this is the modern-day version of it.” Consider these developments: � In Pennsylvania, on Sept. 29, the attorney general agreed to a preliminary injunction that permits all felons released from prison to register. � In Washington, a suit to restore the franchise to felons has survived a motion to dismiss. Summary judgment arguments are imminent. Though incarceration rates are not as high in Washington as in Florida, the racial disproportion is greater. These factors balance out with the result that, again, 24 percent of voting-age black males can’t vote. � In Delaware, legislation was passed earlier this year that will automatically restore the franchise five years after a felon’s release from prison. � In Congress, Representative John Conyers of Michigan, the ranking Democrat on the House Judiciary Committee, is pushing a bill, H.R. 906, that would pre-empt state laws and allow all ex-felons, after completing their sentences, to vote in federal elections. But not all new events favor felon suffrage. The New Hampshire Supreme Court in March overturned a lower court decision and upheld the law disenfranchising felon inmates. And in Massachusetts, a question on the Nov. 7 ballot would take away the franchise from felon inmates. A similar ballot measure passed in Utah in 1998. Maine and Vermont are the only other states that allow inmates to vote. The breaking events in Florida and Pennsylvania merit a closer look. JIM CROW ORIGINS The Florida complaint filed by the Brennan Center and others hinges on Reconstruction-era history. With one hand, Florida’s 1868 constitution gave blacks the vote, as a condition of the state’s readmission to the union. But with the other, it disenfranchised felons and those guilty of larceny, at a time when felony and larceny convicts in Florida were overwhelmingly black. Florida allows ex-convicts to apply for a restoration of their voting rights, but it requires that an applicant have no more than $1,000 in outstanding fines. Northup argues that this is a big practical impediment because few ex-cons find full-time work. And legally, she argues, it amounts to a poll tax because the applicants must pay to vote. George Waas, the assistant attorney general in Tallahassee who is defending against the Brennan Center suit, will rely on Richardson v. Ramirez, a 1974 U.S. Supreme Court case holding that the Fourteenth Amendment contemplates felon disenfranchisement in that it protects the right to vote “except for participation in rebellion, or other crime.” Northup will counter with Hunter v. Underwood, a 1985 U.S. Supreme Court case that enjoined the application of Alabama’s disenfranchisement law as applied to misdemeanants. In Hunter, the court noted that the Alabama law was passed during the Jim Crow era with the intent of racial discrimination. (Alabama voters have since enacted a new felon disenfranchisement amendment.) Waas argues that Florida’s current rule on voting rights restoration was enacted by amendment in 1968 and was clearly not intentionally based on race. He further argues that disparate racial impact has been rejected as a ground for violation of the Voting Rights Act. Finally, Waas suggests that the law has little practical effect, as only 10 percent of Florida felons were ever registered to vote before imprisonment. Professor Uggen projects ex-felon turnout closer to one-third in presidential elections. He notes that people enter prison young, and he argues that they are much more likely to vote as they age. His recent study, presented in August to the American Sociological Association, estimates the likely behavior of enfranchised felons by examining their age, race, sex, income, labor force status, marital status and education. After looking at matching non-felons’ voting behavior in specific past elections for federal office, he found that 70 percent to 90 percent would vote Democratic. The implications are striking. If felons could vote, the study finds,the Democrats could have retained control of the U.S. Senate since1986. To take a different counterfactual scenario, if the rate of felondisenfranchisement were as high in 1960 as it is today, Richard Nixonwould likely have beaten John F. Kennedy. A PENNSYLVANIA HIT AND RUN In Pennsylvania state court, in Mixon v. Commonwealth, the plaintiffs also have invoked race — but the ruling there turned on some bizarre and seemingly Orwellian facts unique to Pennsylvania. Ernie Preate Jr., a former Pennsylvania attorney general who served a year in prison for campaign-expense mail fraud and now lobbies for criminal justice reform, explains, “In Pennsylvania, felons were allowed to vote for centuries. It was changed in 1995 in the dead of night” when a felon franchise clause was inserted into a “motor voter” bill, officially called the Voter Registration Act. “The name of the bill was to encourage people to vote,” says Preate, “when, in fact, that one little provision disenfranchised 50,000 people.” In the summer of 1999, John Yount, who is a double murderer, an ex-fugitive, a lifer and a fine jailhouse lawyer, developed the idea for the suit and persuaded attorney Sam Stretton of West Chester, Penn., to take it on pro bono. A parallel suit, filed in federal court by the NAACP and the Brennan Center, has been stayed. A divided Commonwealth Court, an intermediate court with original jurisdiction in voting rights cases, denied the state’s preliminary objection as to ex-convicts. It ruled en banc that there is no rational basis for the law’s distinction between felons who had registered to vote before imprisonment and who were allowed to vote immediately upon release and those who had never registered to vote and who were forced to wait five years. Deputy AG Francis Filipi says that the state court reached out and found an analysis that was not argued to it but that was argued by the Brennan Center in federal court. “It was kind of a shot out of the dark for us,” he says. Although the state has consented to a preliminary injunction, it is proceeding to defend the constitutionality of the law. Mr. Filipi says he will argue that the court misread the statute, and that in fact all felons are ineligible to vote for five years after release. U.S. AND THE WORLD If the Pennsylvania injunction stands, that state will be going down a path Europe took 30 years ago. In broadly disenfranchising felons, says Professor Nora Demleitner of St. Mary’s Law School, “the U.S. is pretty much isolated in the Western industrialized world.” For most crimes, the Western norm is to impose very brief restrictions or none. In 1999, the Constitutional Court of South Africa unanimously gave inmates the right to vote, saying that the “vote of each and every citizen is a badge of dignity and personhood.” Before the war on drugs intensified, the United States seemed headed the same way. The American Bar Association Standards on Civil Disabilities of a Convicted Person, approved in 1980, state flatly that “[p]ersons convicted of any offense should not be deprived of the right to vote” and that laws subjecting convicts to collateral civil disabilities “should be repealed.” Margaret Love, who chairs the ABA Task Force on Collateral Consequences of a Felony Conviction, says that the task force is looking toward a reaffirmation of those standards as ABA policy. Voting rights aside, Love expressed concern about laws that deprive many felons of employment, housing, education, loans and welfare benefits. Oddly, the one right that many felons still enjoy is officeholding. Lyndon LaRouche ran for president from prison in 1992, but he couldn’t vote for himself.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.