A Legacy of Racism

Vivian Berger calls attention to the persistent legal restrictions on the voting rights of convicted offenders. Although the trend is toward abolishing state disenfranchisement provisions, she notes that millions of people in the U.S. -- a disproportionate number of whom are minorities -- still cannot vote due to such laws. Berger describes the voting barriers as a form of permanent stigmatization and urges their repeal.

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After every election, one hears a great hue and cry about the relatively low percentage of citizens who register and vote. Yet little publicity has been given to an even more shocking fact: the tremendous number of citizens 18 or older who are not permitted to register or vote. Convicted of crimes as minor as shoplifting or possession of marijuana, defendants who have completed their sentences remain, in effect, banished from the community at large — despite having paid their debt to society — because of felony-disenfranchisement laws. Often enshrined in state constitutions, these anachronistic barriers to democratic participation should be abandoned. Happily, the state legislative trend is toward abolition. But we still have a long way to go. Ten states permanently bar all ex-felony offenders from voting; four states disenfranchise some. Several more jurisdictions withhold voting rights for a few years. Thirty-two exclude parolees; 29, probationers as well. In a few states, extension of these laws to any crime subject to imprisonment or “involving moral turpitude” ropes in misdemeanants, too. How many people end up disenfranchised this way? The numbers are staggering. For example, almost 4 million people — one in 50 adults — have currently or permanently lost voting rights. Three-quarters of them are ex-defendants, or are on probation or parole. (All but four jurisdictions deny the franchise to incarcerated persons.) Worse still, these laws have a disproportionate impact on minorities — 1.4 million black men cannot vote. That is a rate of 13 percent — seven times the national average. A majority of the disenfranchised live in the South: Alabama, Mississippi, Florida, Kentucky, Tennessee and Virginia all bar former prisoners from voting. Some of these states adopted disenfranchisement provisions during Reconstruction in order to evade the 15th Amendment’s ban on withholding suffrage from freedmen. (Disenfranchising crimes were carefully selected to disqualify large numbers of blacks.) In Florida and Alabama, the racial effect is greatest; blacks comprise almost 50 percent of the disenfranchised. Given the disparate targeting and treatment of blacks by the criminal justice system, felony disenfranchisement adds a second level of insult and injury to minority ex-offenders. It harms individuals and also limits group political power. These provisions are also irrational. Often defended as maintaining the “purity of the ballot box,” they actually do no such thing. There is not a shred of evidence that ex-felons threaten the honesty of the process — and, in any case, laws on the books punish voting fraud directly. Others justify disenfranchisement on the ground that this population might favor subversive measures. The late Justice Thurgood Marshall, dissenting in Richardson v. Ramirez (1974), had the best response to this argument: “The ballot is the democratic system’s coin of the realm. To condition its exercise on support of the established order is to debase that currency beyond recognition.” Whatever their aim, these forfeiture laws operate as a form of permanent stigmatization that has no place in our society. Indeed, even states with broadside bans afford means to regain lost rights. Yet the restoration process is complex and intimidating, rendering its benefits largely illusory. So what is the best route to reform? Litigation has generally proved unsuccessful. True, Hunter v. Underwood, a 1985 U.S. Supreme Court decision, struck down Alabama’s disenfranchisement provision (as applied to misdemeanants) because, in violation of equal protection, it had been adopted in order to discriminate against African-Americans. But this holding has not sustained similar attacks that foundered on the lack of incontrovertible proof of invidious motivation. Instead, Richardson v. Ramirez insulated exclusionary laws from 14th Amendment, � 1, invalidation on the tenuous ground that � 2 exempts from the sanction of reduced congressional representation vote denials for “participation in rebellion or other crime.” The case was precedent for rejecting later constitutional challenges. Overly narrow interpretations of the Voting Rights Act, moreover, have blocked this route to electoral reform. What remains most promising is the prospect of new legislation. Recently, several states have repealed or curtailed disenfranchisement provisions, and three bills are pending in Congress that would abolish these voting restrictions in federal elections. Americans should pressure their representatives to pass such laws without delay. Vivian Berger is professor emerita at Columbia University Law School.

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